THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF HARRY G SADICOFF WATER RIGHTS IN THE WESTERN STATES THE LAW OF PRIOR APPROPRIATION OF WATER AS APPLIED ALONE IN SOME JURIS- DICTIONS, AND AS, IN OTHERS, CONFINED TO THE PUBLIC DOMAIN, WITH THE COMMON LAW OF RIPARIAN RIGHTS FOR WATERS UPON PRIVATE LANDS. FEDERAL, CALIFORNIA AND OREGON STATUTES IN FULL, WITH DIGEST OF STATUTES OF ALASKA, ARIZONA, COLORADO, HAWAII, IDAHO, KANSAS, MONTANA, NEBRASKA, NEVADA, NEW MEXICO, NORTH DAKOTA, OKLAHOMA, OREGON, PHILIPPINE ISLANDS, SOUTH DAKOTA, TEXAS, UTAH, WASHINGTON AND WYOMING FORMS BY SAMUEL C. WIEL Of the San Francisco Bar REVISED AND ENLARGED TO JUNE 1, 1911 VOLUME I SAN FRANCISCO BANCROFT-WHITNEY COMPANY 1911 T W it// COPYRIGHT, 1905 BY SAMUEL C. WIEL COPYRIGHT, 1908 BY SAMUEL C. WIEL COPYRIGHT, 1911 BY SAMUEL C. WIEL THE FILMER BROTHERS ELECTROTYPE COMPANY TYPOGRAPHERS AND STEREOTYPERS SAN FRANCISCO PREFACE TO THIRD EDITION. In the evolution of the Western water laws there resulted un- certainties; as, for example, in not distinguishing the California law and the Colorado law, nor the corpus of water and its usufruct. There are also various changes occurring in the law of prior ap- propriation as it is breaking away from its origin as a possessory right upon the public domain. Considerable latitude was conse- quently necessary in endeavoring a clear and full presentation, so that the analysis of the subject, the division and plan of the book, should picture the accumulation of Western water-law authorities as a whole, while being, at the same time, complete in detail. In numbering the sections, some numbers were left blank be- tween each chapter to allow, in revising the manuscript for the press, opportunity to shift the sections into a more suitable order, or to add new ones. Sections were renumbered, owing to new matter and rearrangement, so that numbers in previous editions do not correspond to those here. Every endeavor has been made by the author and by the publishers to insure accuracy. If any errors have still crept in, the author will be grateful to readers who will kindly point them out to him. It need hardly be said that in dealing with matters involving regulation of public services, or with public lands, the aim has been to report the authorities, and not private beliefs of what the law "ought to be"; with no effort to make out a case for a side of any doctrine or controversy. In these things, as in other matters, there has been the object (than which there is none harder) simply to state truly and accurately, to the best of a very limited ability, the law as it is now found in the authorities. A small success in that in the cause of truth is all that this book pretends to, or desires. (iii) IV PREFACE TO THIRD EDITION. Use has been made of articles contributed by the author to the Harvard Law Review, Yale Daw Journal, American Law Review and Columbia Law Review, to whom acknowledgment is made in the passages where they occur. The author further expresses his thanks to the State Engineers and to the Department of Agricul- .ture of the University of California, whose members extended many courtesies. As a final word : This is the last edition of this book which will be prepared. The second edition having been exhausted within a year and some months after issuance, an opportunity was pre- sented, in preparing this third one, to improve and enlarge in the light of further study, and of developments in the law within the last three years. The author now takes leave of the book per- manently. If in later days he should return to it, it will not be until many years have passed; and probably it will not be at all. August 1, 1911. SAMUEL C. WIEL. TABLE OP CONTENTS. [Vol. I, ecs. 1-1038. Vol. H, sees. 1039-1470.] PAET I. FIRST PRINCIPLES. CHAPTER 1. RUNNING .WATER. 1. Classification of waters. 2. The negative community. 3. Development in the common law. 4. American authorities. 5. Common or public. 6. State in trust for the people. 7. Conclusion. 8-14. (Blank numbers. 1 ) CHAPTER 2. THE USUFRUCT OF THE NATURAL RESOURCE. 15. Eights of use. 16. Same. 17. American authorities. 18. Western authorities. 19. Conclusion. 20-29. (Blank numbers.) CHAPTER 3. WATER SEVERED FROM THE NATURAL RESOURCE AND REDUCED TO POSSESSION. 30. Introductory. 31. Severed water. 32. What acts reduce the water to possession. 33. Analogy to wild animals A "mineral ferae naturae* 34. Distinguished from percolating water Ohio Oil Co. v. Indiana. vi TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. H, sees. 1039-1470.] 35. Becoming personal property. 36. Same. 37. Escaped or abandoned water. 38. Recapture where abandonment not intended. 38a. Same. 39. Same. 40. Statutory regulation of recapture. 41-50. (Blank numbers.) CHAPTER 4. THE LAW CONFINED TO NATURAL RESOURCES. 51. The natural usufruct alone of practical importance. 52. Natural and artificial watercourses distinguished. 53. The law of natural watercourses does not apply to water in an arti- ficial watercourse. 54. Importance of the right of access to the natural stream. 55. Artificial flow claimants may have priorities between themselves. 56. But artificial flow claimants have no original rights against the creator of the flow, the owner of the natural resource. 57. Same. 58. Same. 59. Some qualifications. 60. Qualification by grant, condemnation, or dedication. 61. Qualification by drainage from a foreign source into a natural stream. 62. Qualification by relation back to a natural stream. 63. "First principles" deduced. 64-65. (Blank numbers.) PAKT II. CALIFORNIA AND COLORADO DOCTRINES. CHAPTER 5. HISTORICAL REVIEW. TO THE ACT OF 1866. A. ORIGIN OF THE DOCTRINE OF PRIOR APPROPRIATION IN THE CUSTOMS OF PIONEER MINERS. 66. Acquisition of the Western public domain. 67. California before the arrival of pioneers. 68. Mexican law. TABLE OF CONTENTS. yii [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 69. Discovery of gold in California in January, 1848. 70. Immigration upon the discovery of gold. 71. Customs of the pioneer miners. 72. The customs approved by the legislature. 73. Water customs as part of the mining customs. B. DEVELOPMENT OF THE CUSTOMS INTO LOCAL LAW. 74. The questions presented to the courts. 75. The customs and the common law. 76. The customs and the court. 77. Irwin v. Phillips. 78. Prior rights by appropriation upheld in court. 79. Endeavors to follow and not disregard the common law. 80. The common law departed from. 81. The question of common law subordinated. C. THE QUESTION OF FEDERAL PUBLIC LAND LAW. 82. Who was the ultimate proprietor? 83. The pioneers as trespassers against the United States. 84. Spread of the Possessory System. 85. Possessory System not confined to mining. 86. Precarious status of possessory rights on the approach of the Civil War. 87. Revocation of possessory rights by Federal patent. D. THE THEORY OF FREE DEVELOPMENT OF THE PUBLIC LANDS UNDER LOCAL LAW. 88. Unpopularity of the "trespasser" basis of the Possessory System. 89. The theory of a grant with the dignity of a fee. 90. Same. 91. "Excepting the government." E. THE ACT OF 1866. 92. Introductory. . 93. Congress and the public domain. 94. The act of 1866. 95. The act explained by Judge Field and other authorities. 96. An enactment of the policy that the waters on public lands were open to free development under local law. 97. Operates as a grant. 98. Only declaratory of the California law. 99. Conclusion. 100-107. (Blank numbers.) viii TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. n, sees. 1039-1470.] CHAPTER 6. HISTORICAL REVIEW (CONTINUED) FROM THE ACT OF 1866 TO THE PRESENT. A. THE PUBLIC LAND QUESTION LAID AT BEST. 108. The Federal policy settled. 109. Early State legislation. 110. New questions. B. THE CONFLICT OVER RIPARIAN RIGHTS. 111. Private title to land and new industries. 112. The law and irrigation. 112a. Same. 113. Riparian rights before Lux v. Haggin. 114. Same. 115. Lux v. Haggin. 116. Result of Lux v. Haggin. 117. Riparian rights upheld in ten States and Territories. 118. Riparian rights rejected in eleven States and Territories. 119. Same "Landowner" statute. 120. Same Collateral results of the rejection. 121. In the supreme court of the United States. 122. Same. C. LATER AND RECENT STATE LEGISLATION. 123. Public service declared under State control. 124. "Water codes. 125. Same (Legislation in 1911). 126. Effect of this legislation on riparian rights. 127. Irrigation districts Wright Act. D. LATER AND RECENT FEDERAL LEGISLATION. 128. Desert Land Act. 129. Same Hough v. Porter. 130. Same New Oregon doctrine based on the Desert Land Act. 131. Federal Right of Way Acts. 132. Carey Act. 133. National Irrigation Act. 134. Water Users Association. 135. Other Federal legislation. 136. Recent revival of discussion of Federal policy. 137. Conservation. E. THE FUTURE. 138. Future of the system of appropriation. 139. Transitionary state of the law of appropriation within itself. 140. Converging of appropriation and riparian rights. TABLE OF CONTENTS. ix [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 141. Statement of the doctrine of appropriation. 142. Conclusion. 143-150. (Blank numbers.) CHAPTER 7. UNITED STATES OR STATE CALIFORNIA DOCTRINE. 151. Introductory. 152. The Federal title. 153. Same. 154. California doctrine based upon the Federal title. 155. Appropriation as a grant from the United States under this system. 156. Eiparian rights a deduction from the Federal title. 157. Power of Congress in the future under this theory. 158-166. (Blank numbers.) CHAPTER 8. UNITED STATES OR STATE COLORADO DOCTRINE. A. STATEMENT OF THE COLORADO DOCTRINE. 167. The State system. 8 168. The authorities quoted. 169. Same. 170. Water the "property of the public" or "of the State." 171. Sources from which this declaration is derived. 172. Construction given to the declaration. 173. Objections raised on behalf of the United States as landowner. 174. Objections on be%alf of private landowners. B. BASIS OF THE COLORADO DOCTRINE. 175. Replies to the foregoing objections. 176. Basis upon Federal action. 177. Basis upon absence of Federal action. 178. Basis upon State sovereignty alone. 179. Some other arguments. 180. Views of United States supreme court. 181. Same Second period. 182. Same Third period. 183. Same. 184. Same. 185. Some inconsistencies and variations. 186. Conclusion. 187. Same. 188-196. (Blank numbers.) x TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 9. APPROPRIATIONS ON PUBLIC LAND. A. UNRESERVED PUBLIC LAND. 197. Extent of public land area. 198. The first appropriations were all on public land. 199. State lands. 200. Presumption that lands are public. 201. Abandoned or forfeited claims to public land. 202. Rights of way and reservoir sites on unreserved public land. 203. Federal Right of Way Acts on unreserved public land. B. RESERVED PUBLIC LAND. 204. New governmental policy. 205. Extent of the reserved domain. 206. Authority to make withdrawals. 207. Military and Indian reservations Waters on. 208. Rights of way over military and Indian reservations. 209. Forest domain Extent of. 210. Waters upon forest reserves. 211. Rights of way and reservoir sites upon forest reserves. 212-220. (Blank numbers.) CHAPTER 10. APPROPRIATIONS ON PRIVATE LAND. A. RIGHTS OF WAY CANNOT BE APPROPRIATED OVER PRIVATE LAND. 221. General protection of private land against ditch-building. 222. Consistently the California law. 223. Early conflict in the Colorado law Yunker v. Nichols. 224. Yunker v. Nichols no longer followed. 225. Access to the stream a determinative factor in the law of water- courses. 226. Exception in favor of government ditches. B. WATER ON PRIVATE LAND. 227. Difference in California and Colorado as to water on private land. 228. Water flowing over or by private land cannot be. appropriated in California. 229. Authorities quoted. 230. Water partly on public and partly on private land in California. 231. The law of appropriation of diminishing importance in California. 232. Water on private land in Colorado. 233. Conclusions. 234-242. (Blank numbers.) TABLE OF CONTENTS. xi [Vol. I, sees. 1-1038. Vol. II, seen. 1039-1470.] CHAPTER 11. APPROPRIATIONS ON PRIVATE LAND (CONTINUED). 243. Introductory. 244. By the landowner himself on his own land. 245. By grant, condemnation, or prescription. 246. By disseisin Wrongful appropriations Duckworth v. Watson- ville Co. 247. Same. 248. Conclusions. I 249-255. (Blank numbers.) CHAPTER 12. RELATION OF PUBLIC LAND APPROPRIATORS TO RIPARIAN PROPRIETORS. 256. Another phase of the same question. 257. Subsequent settlers. 258. Subsequent settlers under Federal Eight of Way Acts. 259. Prior settlers. 260. Prior settlers who hold the land in fee. 261. Prior settlers before patent. 262. Prior settlers under the Colorado doctrine. 263. Prior settlers under Federal Eight of Way Acts. 264. Conclusion. 265-274. (Blank numbers.) CHAPTER 13. ELEMENTS OF A RIGHT BY APPROPRIATION. 275. Introductory. 276. The right is usufructuary. 277. No property in the "corpus" of the water. 278. No property in the channel. 279. The right is exclusive. 280. Distinguished from right to a ditch. 281. Independent of mode of enjoyment. xii TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 282. Eecent tendency to the contrary. 283. Heal estate. 284. Same Taxation. 285. An estate of freehold. 286. Conditional. 287. An incorporeal hereditament. 288. Definition. 289. Same. { 290-298. (Blank numbers.) CHAPTER 14. RELATION BETWEEN APPROPRIATORS. A. SENIOR EIGHTS. i 299. Priority governs. 300. Whole stream. 301. In times of deficiency. B. JUNIOE EIGHTS. 302. Successive appropriation. 303. Same. i 304: Same. 305. Periodical appropriations. 306. Temporary appropriations. 307. No partiality. 308. Preferences. 309. Pro-rating. C. COEBELATIVE EIGHTS BETWEEN APPEOPBIATOES. 310. The principle of "unreasonable priority." 311. Some early rulings. 312. The dictum in Basey v. Gallagher. 313. Eecent tendencies. 314. Same. 315. Conclusions. 316-317. (Blank numbers.) CHAPTER 15. WHO CAN APPROPRIATE. 318. Persons generally. 319. Trespassers. 320. Tenants in common. 321. Same. 322. Eiparian owners. 323. Early riparian settlers in California. TABLE OF CONTENTS. Jtiii [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 324. Same. 325. Corporations. 326. Appropriations by the United States. \ 327-330. (Blank numbers.) CHAPTER 16. WHAT CAN BE APPROPRIATED. 331. Classification of waters. A. WATERCOURSES. 332. Water in a surface watercourse. 333. What constitutes a watercourse. 334. Same Definition. 335. Same Examples. 336. Springs. 337. Surface tributaries. 338. Sloughs. B. NAVIGABLE AND INTERSTATE STREAMS. 339. Navigable streams. 340. Interstate streams. 341. Same Controversies between States Kansas v. Colorado. 342. Between riparian owners in one State and appropriators in an- other State. 343. Same Between appropriators in different States. 344. Difficulties of procedure. 345. Conclusions regarding interstate streams. C. STANDING AND DIFFUSED WATER. 346. Lakes and ponds. 347. Flood or storm or surface water. 348. Drainage of surface water. 349. Use of surface water. 350. Swamp lands. 351. Underground water. 352-360. (Blank numbers.) CHAPTER 17. HOW AN APPROPRIATION IS MADE. THE ORIGINAL METHOD. 361. The original method. 362. Possessory origin of this method. 363. Ownership of land unnecessary, and water need not be returned to the stream. xir TABLE OF CONTENTS. [VoL I, sees. 1-1038. Vol. n, sees. 1039-1470.] A. BY ACTUAL DIVEESION. 364. Distinguished from the statutory method. 365. The statutes do not apply. 366. Settlement on stream banks not alone enough No preference to riparian owners. 367. Same. B. TO SECUEE THE BENEFIT OF RELATION. 368. Object of statutory provisions. 369. Provisions chiefly declaratory only. 370. Essential requisites. C. NOTICE. 371. Form of notice. 372. Contents and recording of notice. 373. Purpose of the notice. 374. The notice operates as a warning. 375. Failure to post notice. 376. Notice alone not enough. D. BENEFICIAL PURPOSE. 377. Necessity for bona fide intention. 378. What constitutes a beneficial purpose. 379. Motive. 380. Evidence of intention. 381. Intention alone not enough. E. DILIGENCE. 382. Necessity for diligence. 383. What constitutes diligence. 384. Delay during legal proceedings. 385. Failure to use diligence. F. COMPLETION OF CONSTRUCTION WORK. 386. Completion of work preparatory to use of water. 387. What constitutes completion. 388. Means of diversion. 389. Diversion alone. 390. Use of existing ditches. 391. Same. 392. Changes in the course of construction. Q. RELATING BACK. 393. Origin of the doctrine. 394. Effect of relation. H. ACTUAL APPLICATION. 395. Necessity for actual application and use under the possessory origin of the law. TABLE OF CONTENTS. xv [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 396. Same Under the view now developing. 397. Federal requirements. 398. Recapitulation. 399-407. .(Blank numbers.) CHAPTER 18. HOW AN APPROPRIATION IS MADE UNDER STATE WATER CODES. 408. The Wyoming method. 409. Authority of State Engineer. 410. Vested rights protected. 411. Exclusiveness of the statutory method. 412. Application for permit. 413. Fees and ro-yalties. 414. Examination of application and issuance of permit. i 415. Rejection of applications. 416. Same. 417. Nature of a permit. 418. Prosecution of the work. 419. Cancellation of permits for failure of work. 420. Issuance of certificate of appropriation. 421. Date of right. 422. California Water-power Act of 1911. 423. Federal requirements. 424-429. (Blank numbers.) CHAPTER 19. HOW AN APPROPRIATION IS MADE NEW FEDERAL SYSTEM. 430. Introductory. A. RULES OF THE FOREST SERVICE FOR RIGHTS OF WAY, ETC. 431. Rules for rights of way, etc. 432. Revocable Forest Service permits. B. FEDERAL RIGHT OF WAT ACTS. 433. Appropriations under the Federal Right of Way Acts. 434. Nature of rights acquired under the Right of Way Acts. 435. The doctrine of relation. 436. Bonds, stipulations and royalties. 437. Forfeiture. 438. Conflicts with settlers. 438a. Water-power regulations of 1911 of the Forest Service. xvi TABLE OF CONTENTS. [Vol. I, *ecs. 1-1038. Vol. n, sees. 1039-1470.] C. RELATION OF THE NEW FEDERAL SYSTEM TO THE ACT OF 1866 AND LOCAL LAW. 439. Upon reserved land. 44p. Upon unreserved land. 441. Eecent tendency away from the act of 1866. 442. Conclusion. 443-451. (Blank numbers.) CHAPTER 20. MEANS OF USE RESERVOIRS, DITCHES, FLUMES, PIPES AND OTHER STRUCTURES. A. ARTIFICIAL WATER CONDUITS, ETC. 452. General. 453. Use without diversion. 454. Use in artificial water structures Ditches, flumes, pipes in general. 455. The ditch, etc., is an easement. 456. Ditch and water-right distinguished. 457. Water in artificial waterworks or structures. B. USE OF ARTIFICIAL CONDUITS, ETC. 458. Contracts concerning ditches. 459. Joint use of ditch. 460. Repair of ditches. 461. Damage from breaking ditches, etc. 462-. Same Floods. 463. Same. 464-472. (Blank numbers.) CHAPTER 21. LIMITATIONS ON QUANTITY OF WATER. A. CAPACITY OF STRUCTURES. 473. Introductory. 474. The original claim. 475. Capacity of ditch The possessory test. 476. Capacity of ditch ceasing to be a measure. 477. Same. B. BENEFICIAL USE. 478. Beneficial use The final test. 479. Same Even if less than capacity of ditch. 480. Time at which beneficial use is to be figured. 481. What constitutes waste. f 482. Same. TABLE OF CONTENTS. xvii [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] C. ANNUAL INCEEASE OF USE. 483. Future needs. 484. Same. 485. Same. 485a. Same. D. DUTY AND MEASUREMENT OF WATER. 486. Measurement of water. 487. Duty of water. 488. Duty of water as affected by loss in transmission. 489. Summary. 490-495. (Blank numbers.) CHAPTER 22. LIMITATIONS ON CHANGE OF MODE OF ENJOYMENT. A. GENERAL PRINCIPLES. 496. The right is independent of the mode of enjoyment. 497. Same. 498. No injury to others allowed. 499. Right of change chiefly a matter upon public lands. 500. Freedom of change gradually passing away. B. CHANGE OF MEANS OF USE. 501. Change of ditches, etc. 502. Same. 503. Same. C. CHANGE OF POINT OF DIVERSION. 504. Change of diversion. 505. Same. 506. Statutory restrictions. 507. Same. D. CHANGE OF PLACE OF USE. 508. Change of place of use. 509. Statutory restrictions. 510. Change on sale of water-right. E. CHANGE OF PURPOSE OF USE. 511. Change of purpose. 512. Conclusion. 513-521. (Blank numbers.) xviii TABLE OF CONTENTS. [Vol. I, lees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 23. POLLUTION. 522. Western questions. 523. Under the common law of riparian rights. 524. Under the law of prior appropriation. 525. Materiality of interference. 526. Same. 527. Mining debris. 528. Priority. 529. Injunctions. 530. Conclusions. 531-535. (Blank numbers.) CHAPTER 24. ALIENATION AND DISPOSAL OF EIGHT CONTRACTS- CONVEYANCES. A. CONTEACTS BETWEEN PRIVATE PARTIES EXCLUSIVE OF PUBLIC SERVICE COMPANIES.' 536. Right of contract. 537. Subject matter of water contracts. 538. Contracts (continued). 539. Assignment. 540. Contracts with public service companies are governed by special rules. B. CONVEYANCES. 541. Water-rights may be conveyed. 542. Formalities on transfer. 543. Subject matter of conveyance. 544. Construction and operation of conveyance. 545. Reservations. 546. Sales of uncompleted works After-acquired property. 547. Sale in parts. 548. Lease or exchange or other temporary disposal. 549. Sales of "water-rights" by public service companies. C. APPURTENANCE. 550. Whether the water-right is an appurtenance to land. 551. Same. 552. Whether passes on sale of land when appurtenant thereto. 553. Upon subdivision of land. 554. Appurtenance .(concluded). TABLE OF CONTENTS. [Vol. I, MCS. 1-1038. Vol. II, sees. 1039-1470.J D. PAROL SALE. 555. Parol sales of possessory rights on the public domain. 556. Parol sales and licenses in equity. 557. Conclusion. 558-565. (Blank numbers.) CHAPTER. 25. LOSS OF RIGHT. A. ABANDONMENT. 566. Introductory. 567. Abandonment is voluntary and a question of fact. 568. Same (examples). 569. Nonuser merely evidence of intention to abandon. 570. Same. 571. Discharged waste and recapture. 572. Parol sale or faulty deed. 573. Failure of diligence in construction work. B. FORFEITURE. 574. Failure to comply with statute in making an appropriation. 575. Smith v. Hawkins. 576. Forfeiture under statutes. 577. Transitionary state of the law. 578. Conclusions regarding abandonment and forfeiture. C. ADVERSE USE OR PRESCRIPTION. 579. General. 580. Effect of adverse use or prescription. 581. Extent. 582. Essentials. 583. Continuous. 584. Exclusive; uninterrupted. 585. Open; notorious. 586. Claim of right; color of title. 587. Hostile to owner; permission. 588. Invasion of right. 589. Chance to prevent. 590. Payment of taxes. 591. Against the United States or the State. 592. Conclusion. D. ESTOPPEL. 593. Elements of estoppel in pais. 594. Estoppel by silence. 595. Same. 596-603. (Blank numbers.) xx TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 26. LOSS OF RIGHT (CONTINUED) EMINENT DOMAIN. 604. Necessity for public use. 605. Kequirement of hearing and compensation. 606. What is a public use. 607. Private enterprise as public use. 608. Clark v. Nash. 609. Same State statutes and decisions. 610. In California. 611. Statement of the rule of Clark v. Nash. 612. Practical results. 613. Conditions imposed. 614. The French Irrigation System. 615. Procedure and miscellaneous. 616. A question of procedure. 617. Same. 618. Same. 619-623. (Blank numbers.) CHAPTER 27. PROCEDURE. 624. Introductory. A. PARTIES. 625. Cases are governed by the relative rights of the parties before the court. 626. Eights of strangers to a suit cannot be bound. 627. Nor can rights of strangers affect the result between the parties litigant. 628. Eecurrence of the principle in the law of waters. 629. Joinder of parties. 630. Joinder of issue between the parties. 631. Parties (concluded). i B. PLEADING AND PEACTICE. 632. Jurisdiction. 633. Joinder of causes of action. 634. Pleading (continued) Allegations in complaint. 635. Alleging local customs. 636. Evidence. 637. Damages. 638. Measure of damages. 639. Decree. * 640. Miscellaneous matters of practice. TABLE OF CONTENTS. xxi [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.J C. INJUNCTION. 641. Irreparable injury. 642. Same Injuria sine damno. 643. Prospective. 644. Laches. 645. Making out right at law. 646. Mandatory injunctions. (Abatement of nuisance by suit.)] 647. Defenses to injunction. 648. Balance of inconvenience between the parties. 649. Same Hardship on the public. 650. Same Conflict between mining and agriculture. 651. Same Against public service companies. 652. Preliminary injunctions. 653. Injunction (Conclusion), D. OTHER EQUITABLE EEMEDIES. 654. Bills to quiet title, etc. 655. Specific performance and allied matters. E. MISCELLANEOUS EEMEDIES. 656. Actions at law. 657. Abatement of nuisance by act of party Use of force. 658. Crimes. 659-665. (Blank numbers.) PART IV. THE COMMON LAW. OF RIPARIAN EIGHTS. CHAPTER 28. INTRODUCTORY. 666. Appropriation and the common law. 667. Ancient possession The maxim "Aqua currit." 668. Prior possession even if not ancient. 669. Priority of appropriation enforced. 670. Priority finally displaced by equality. 671. Same. 672. Same. 673. Eiparian rights under the California doctrine. 674. Conclusion. 675-683. (Blank numbers.) TABLE OF CONTENTS. [VoL I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 29. FOUNDATIONS OF THE SYSTEM OF RIPARIAN RIGHTS. 684. Introductory. A. GENEEAL. 685. The civil law. 686. The common law borrowed from the civil law. 687. The corpus of naturally running water is not property. 688. Same Publiti juris, etc. 689. But one may own a right to its flow and use The law recognizes a usufructuary right. 690. When taken into possession, the substance becomes private property. 691. Systems of water law are but a development of these three "first principles." B. ACCESS TO THE STREAM. 692. None but riparian proprietors have access to the stream. 693. Same. 694. Same. 695. Same. C. THE BIPABIAN BIGHT DOES NOT BEST UPON THE MAXIM "CUJUS EST SOLUM." 696. The cujus est solum doctrine. 697. Same. 698. Same. 699. Besults. 700-708. (Blank numbers.) CHAPTER 30. NATURE OF RIPARIAN RIGHT. 709. Natural right. 710. Same. 711. Part and parcel of riparian land. 712. The right is usufructuary. 713. As subject of grant or contract. 714-722. (Blank numbers.) CHAPTER 31. WHAT PERSONS AND UPON WHAT WATERS. 723. Who are riparian proprietors. 724. Landholders less than in fee. 725. Upon what waters Watercourses. TABLE OF CONTENTS. xxiii [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] S 726. Navigable streams. 727. Interstate streams. 728. Standing water Lakes Ponds. 729. Percolating water. 730-738. (Blank numbers.) CHAPTER 32. LIMITATIONS ON USE BETWEEN RIPARIAN PROPRI- ETORS THEMSELVES FOR THEIR OWN LANDS. REASONABLE USE. A. CLASSIFICATION OF USES. 739. Equality of riparian owners. 740. Natural uses (Use to support life). 741. Origin of the term "natural uses." 742. Irrigation not within this class. 743. Artificial uses (Business uses). 744. Same. B. EEASONABLE USE. 745. Eeasonable use generally. 746. Eeasonable use for power purposes. 747. Same In California. 748. Reasonable use for irrigation. 749. Same Turner v. James Canal Co. 749a. Same. 750. Eeasonable use (concluded). C. APPOETIONMENT. 751. Apportionment. 752. Apportionment is an equitable remedy. 753. Confined to the parties litigant. D. MISCELLANEOUS. 754. Manner of use. 755. Eeturn of surplus. 756. Possibility for a Eiparian Administrative System. 757-764. (Blank numbers.) xxiv TABLE OF CONTENTS. Vol. I, sees. 1-1038. Vol. II, seci. 1039-1470.] CHAPTER 33. LIMITATIONS ON USE OF WATER BETWEEN RIPARIAN PROPRIETORS THEMSELVES (CONTINUED). USE CONFINED TO RIPARIAN LAND. 765. Introductory. 766. Use confined to riparian land. 767. Same. . 768. What is riparian land Must touch the stream. 769. Receding from the stream Eecession of land title. 770. Same. 771. Same. 772. Same. 773. Within the watershed. 774. Bounded by reasonableness in each case. 775. Conclusions as to riparian land. 776-794. (Blank numbers.) CHAPTER 34. PROTECTION OF RIPARIAN RIGHT AGAINST OTHER RIPARIAN OWNERS. 795. Damage between riparian owners. 796. Possible damage to use of complainant's land must be snown. 797. Authorities quoted. 798. Eeductio ad absurdum. 799. Damage to a reasonable degree not wrongful. 800. Damage to excess of reasonable degree. 801. Where the damage is during complainant's nonuse. 802. Declaratory decree. 803. Conclusions. 804-813. (Blank numbers.) CHAPTER 35. PROTECTION OF RIPARIAN RIGHT AGAINST NONRIPA- RIAN OWNERS. 814. Difficulty of questions involved. A. IMPAIRMENT OF RIPARIAN ESTATE TO ANY DEGREE WHAT- EVER BY NONRIPARIAN USE IS WRONGFUL. 815. Stated generally, nonriparian owners have no rights in streams. 816. Damage to present use immaterial. TABLE OF CONTENTS. xxv [Vol. I, Sflcs. 1-1038. Vol. H, sees. 1039-1470.] 817. Keasonableness in its correlative sense is immaterial. 818. The wrong (where no present damage to use) consists in the de- terioration to any degree of the riparian estate. 819. Nonriparian diversion usually held per se a detriment. B. SOME OPPOSING AUTHORITIES. 820. Departures from the common law. 821. Some rulings under the common law. 822. Some California decisions. 823. Some rulings in other common-law courts. 824. Same. 825. Storm waters. 826. Same. C. CAN THESE MINORITY RULINGS BE RECONCILED TO PRINCIPLE. 827. The answer must be made under the common law. 828. Possible distinction between diminution of flow and depreciation of estate. 829. Same. 830. Same. 831. Application of the distinction by confining the decision to the par- ties litigant. 832. Same. D. OTHER RELATED MATTERS. 833. Declaratory decree. 834. Nonriparian use by both parties. 835. Conclusions. 836. Exception where underground water is involved. 837-843. (Blank numbers.) CHAPTER 36. CONTRACTS AND CONVEYANCES BY A RIPARIAN PRO- PRIETOR. 844. General. 845. Grants and contracts are binding between the parties thereto. 846. Same. 847. But as affecting noncontracting riparian proprietors, grants or eon- tracts or sales of water or of water-right are invalid. 848. Some opposing decisions. 849. How far the opposing eases can be supported upon principle. 850. In the civil law. 851. Conclusions. 852-860. (Blank numbers.) xxvi TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 37. LOSS OF RIPARIAN RIGHT. A. ABANDONMENT AND ADVERSE USE. AVULSION. 861. No abandonment. 862. Avulsion. 863. Adverse use. B. EMINENT DOMAIN. 864. Riparian right may be condemned. 865. Clark v. Nash. 866. Procedure on eminent domain. 867-879. (Blank numbers.) CHAPTER 38. PROCEDURE. 880. General. 881. Parties. 882. Equitable remedies. 883. Pleading and proof Between riparian owners themselves. 884. Same Between a riparian and a nonriparian owner. 885. Pleading (continued). 886. Actions at law. 887. Judgment or decree. 888-896. (Blank numbers.) CHAPTER 39. MISCELLANEOUS RIPARIAN RIGHTS. 897. Introductory. A. NAVIGABLE WATERS. 898. Shores and bed of navigable waters. 899. Public rights in navigable streams. 900. Public authority over navigation. B. ACCRETION AND BOUNDARIES. 901. Accretion. 902. Islands. 903. Boundaries. C. WHARFAGE AND OTHER RIPARIAN OR LITTORAL RIGHTS. 904. Access. 905. Wharfage, etc. TABLE OF CONTENTS. xsvii [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.]- . 906. Other riparian rights, in navigable waters. 907. Fishing. 908-1006. (Blank numbers.) CHAPTER 40. COMPARISON OF THE LAW OF APPROPRIATION AND OF RIPARIAN RIGHTS. 1007. Purpose of this chapter. 1008. First principles. 1009. As dependent on ownership of land. 1010. Contiguity to the stream. 1011. Mode of acquisition. 1012. Beneficial use. 1013. Preference of domestic use. 1014. Equality vs. priority. 1015. In California. 1016-1024. (Blank numbers.) CHAPTER 41. SOME NOTES ON THE EIPARIAN SYSTEM UNDER THE ROMAN LAW AND THE MODERN EUROPEAN LAW OF WATERS. 1025. The corpus of running water. 1026. The law of riparian rights. 1027. Grants by riparian proprietors. 1028. The administrative, condemnational, and public land system. 1029. Bibliography. 1030-1038. (Blank numbers.) xxviii TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] PART V. UNDERGROUND WATER. CHAPTER 42. HISTORICAL. A. ENGLISH EULE. 1039. The English rule. 1040. Contrasted with the common-law rule of watercourse* B. THE AMERICAN EULE. 1041. The English rule modified. 1042. The California cases. 1043. Katz v. Walkinshaw. 1044. The state of the authorities. . 1045. Same. 1046. The rule contended for. 1047. Same. C. SUCCEEDING CALIFORNIA CASES. 1048. McClintock v. Hudson. 1049. Cohen v. La Canada W. Co. 1050. Montecito etc. Co. v. Santa Barbara. 1051. Newport v. Temescal Water Co. 1052. Cohen v. La Canada Water Co. 1053. Burr v. Maclay R. Co. 1054. Barton v. Riverside W. Co. 1055. Hudson v. Dailey. 1056. Los Angeles v. Hunter. 1057. Miller v. Bay Cities W. Co. 1058-1061. Various subordinate rulings. 1062. In the district court of appeal. 1063. Miscellaneous recent Eastern rulings. 1064. Recapitulation of the California cases. 1065. Conclusions. 1066. Collection of recent cases. 1067-1075. (Blank numbers.) TABLE OF CONTENTS. xxlx [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 43. CLASSIFICATION OF UNDERGROUND WATERS. 1076. Classification of underground waters. A. CONNECTED WITH A WATERCOURSE OR SOME OTHER DEFI- NITE BODY OF WATER. 1077. Definite known underground streams. 1078. The subflow of a stream. 1079. Subflow is a part of the stream. 1080. Separate rights in subflow. 1081. Same. (Mentone Irr. Co. v. Redlands Co.) 1082. Percolations tributary to watercourses. 1083. Interference with a stream in the reasonable use of one's 1 own land. B. DIFFUSED PERCOLATING WATER UNCONNECTED WITH A STREAM. 1084. Diffused ground-water. 1085. Diffused ground-water in the California Coast Range valleys. 1086. Same Underground lakes or artesian belts. 1087. Same Underground reservoirs supplied by or supplying surface streams'. 1088. Same. 1089. Artesian wells Miscellaneous. 1090. Merger of the rules governing these different classes of ground- water with each other and with the common law of riparian rights upon streams. 1091-1099. (Blank numbers.) CHAPTER 44. NATURE OF THE RIGHT IN UNDERGROUND WATER. 1100. No longer private property in its natural state. 1101. Usufructuary. 1102. Confined, by the necessity of access, to adjacent landowners. 1103. Natural right, and part and parcel of adjacent land. 1104. Analogy to the common-law riparian right. 1105. Same. 1106. New rule compared to the law of prior appropriation. 1107. Same. 1108. Same. 1109-1117. (Blank numbers.) xxx TABLE OF CONTENTS. [VoL I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 45. USE CONFINED TO ONE 'S OWN LAND ADJACENT TO THE SUPPLY. 1118. Basis of the limitation to one's own land. 1119. A question of fitness of purpose, viz., the benefit of one's own prop- erty, when damaging a neighbor. 1120.. Same Malice distinguished. 1121. The benefit of one's own property as a justification. 1122. This is the chief point in the new cases. 1123. Sale of water. 1124. Conclusions. 1125. Future development. 1126-1132. (Blank numbers.) CHAPTER 46. REASONABLE USE BETWEEN NEIGHBORING LAND- OWNERS. 1133. Introductory. I 1134. Equality of overlying landowners. 1135. Must be for the benefit of the land. 1136. A question of degree. 1137. Apportionment. 1138. Declaratory decree during nonuse. 1139. Means of use of the land. 1140. Drainage. 1141. Importance in mining regions. 1142. Statutory regulation. 1143-1151. (Blank numbers.) CHAPTER 47. PROTECTION OF THE RIGHT TO UNDERGROUND WATER. A. AGAINST AN EXCESSIVE LOCAL USE. 1152. Excessive local use. B. BETWEEN A LOCAL AND AN ALIEN USE. 1153. No question of reasonableness. 1154. Damage will not be implied. 1155. Prospective damage to the local land. TABLE OF CONTENTS. xxxi [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 1156. Declaratory decree. 1157. Distant use of surplus. 1158. Same Not an absolute "appropriation." 1159. Distant use by both parties. } 1160-1168. (Blank numbers.) CHAPTER 48. LOSS OF EIGHT, PROCEDURE, AND MISCELLANEOUS MATTERS. 1169. Nonuse. 1170. Prescription. 1171. Public use estoppel. 1172. Contracts concerning underground water. 1173. Evidence, decrees, etc. 1174. Conclusion. 1175. Same. 1176-1182. (Blank numbers.) PART VI. ADMINISTRATIVE SYSTEM, AND DETERMIN- ATION OF RIGHTS, UNDER STATE WATER CODES AND STATUTES. CHAPTER 49. THE ADMINISTRATIVE SYSTEM. 1183. Introductory. 1184. Legislation. 1185. Same. 1186. Supervision of State. 1187. Intermediate subdivisions. 1188. Primary subdivisions. 1189. Police regulations. 1190. Issuing new permits, determining old rights, and controlling changes. 1191. Jurisdiction of officers usually confined to natural resources. xxxii TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 1192. Powers of water officials are administrative and not judicial. 1193. Vested rights protected. 1194. Decisions of water officials are not conclusive upon the courts. 1195. Duties of water officials. 1196. Actions by and against officials. 1197. Pay of water officials. 1198. Water commissioners and State Engineer in California and other States that have not adopted water codes. 1199. Comment of United States Department of Agriculture. 1200-1205. (Blank numbers.) CHAPTER 50. DETERMINATION OF EXISTING PRIORITIES BY ADMIN- ISTRATIVE OFFICERS. 1206. Wyoming method. 1207. Peparatory steps. 1208. Procedure. 1209. Certificates. 1210. Constitutionality of these statutes'. 1211. How far excluding proceedings in court. 1212-1221. (Blank numbers.) CHAPTER 51. DETERMINATION OF PRIORITIES BY SPECIAL PROCEED- INGS IN COURT. 1222. Colorado method. 1223. Preparatory steps. 1224. Procedure on suit. 1225. Decree and certificate. 1226. Constitutionality of these statutes. 1227. Same Due process of law. 1228. Nature of the proceedings. 1229. Carrier or consumer. 1230. Scope of proceedings. 1231. Form of decree, costs, etc. 1232. Effect of decree Time limitations. 1233. Same Res adjudicata. 1234. Conclusion. 1236. Comment of Department of Agriculture. 1236-1244. (Blank numbers.) TABLE OF CONTENTS. xxxiii [Vol. I, sees. 1-1038. Vol. H, sees. 1039-1470.] PART DISTRIBUTION OF WATER. CHAPTER 52. INTRODUCTORY. 1245. Purpose of this chapter. 1246. Development of distributing systems. 1247. Contract regulation. 1248. Public ownership. 1249. Public control without public ownership. 1250. Conclusion. 1251-1259. (Blank numbers.) CHAPTER 53. NATURE OF PUBLIC SERVICE. A. PUBLIC SERVICE. 1260. Property devoted to the service of the public. 1261. What constitutes public service? 1262. Theory of the law of public service Sovereignty and not pro- prietorship Public control as distinguished from public owner- ship. 1263. The common law. 1264. Constitutional declaration. 1265. Same. B. PRIVATE SERVICE. 1266. Mutual companies Business not subject to public control. 1267. Mutual companies (continued). 1268. Stock in mutual companies. 1269. Transfer of stock in mutual companies. C. CHANGE OF CHARACTER OF SERVICE. 1270. Change from private to public service. 1271. Change from public to private service. 1272. Abandonment of all service. 1273-1278. (Blank numbers.) xxxiv TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] CHAPTER 54. DUTIES OF PUBLIC SERVICE. 1279. Seasonable service to all. 1280. Must serve all the public to the extent of capacity (compulsory service). 1281. Or some class of the public. 1282. With adequate facilities. 1283. Equally and without discrimination. 1284. Without priorities. 1285. Same. 1286. Without unreasonable conditions. 1287. Upon tender of a reasonable rate. 1288. Irrigation rates. 1289. Same. 1290. Miscellaneous duties. 1291-1297. (Blank numbers.) CHAPTER 55. PUBLIC REGULATION. 1298. Public boards or commissions. 1299. Basis of the power to fix rates. 1300. The statutes. 1301. Proceedings before the board. 1302. Rates presumed valid when fixed by the board. 1303. Jurisdiction of equity against improper action by the board. 1303a. Same. 1304. What is a fair return? 1305. What is the value of the property? I 1306-1314. (Blank numbers.) CHAPTER 56. RIGHTS OF CONSUMERS FROM DISTRIBUTORS BASED UPON CONTRACT. A. VALIDITY OP CONTRACTS GENERALLY. 1315. . The practical situation. 1316. Contracts not per se invalid. 1317. But contract provisions that are unreasonable or conflict with the distributor's public duties are invalid. 1318. Same. TABLE OF CONTENTS. xxxv [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] B. BATE CONTRACTS. 1319. Contracts fixing rates in the absence of public rate-fixing. 1320. Effect of transfer of water system upon contract rates. 1321. Effect of public rate-fixing upon contract rate-fixing. 1322. Contracts between companies and cities. 1323. Contracts by the United States under the policy of conservation. C. CONTRACTS AS GRANTING ESTATES. 1324. Whether contracts do or can grant "easements" or "water-rights" to consumers, or only service rights. 1325. The present California rule Leavitt v. Lassen Irr. Co. 1326. Whether charge can be made for a 'water-right" in addition to the rates. 1327. Comments. D. CONTRACTS ARE CONCURRENT ONLY. 1328. Contract rights, when valid, are but concurrent with the noncon- tract rights. 1329-1337. (Blank numbers.) CHAPTER 57. CONSUMERS AS APPROPRIATORS PUBLIC OWNERSHIP AS DISTINGUISHED FROM PUBLIC CONTROL. 1338. The rule in the desert States. 1339. Public ownership of water resources. 1340. Statement of the authorities. 1341. Same Continued. 1342. Same Continued. 1343. Results of the rule Priorities. 1344. Same. 1345. Parties to actions. 1346. Change of use. 1347. Conclusion. 1348-1355. (Blank numbers.) CHAPTER 58. IRRIGATION DISTRICTS. 1356. Purpose. 1357. California. 1358. Operation of the system in California. i 1359. Colorado. TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 1360. Idaho. 1361. Kansas. 1362. Montana. 1363. Nebraska. 1364. Nevada. 1365. New Mexico. 1366. Oregon. 1367. Texas. 1S68. Utah. 1369. Washington. 1370. Wyoming. 1371. Conclusion. 1372-1379. (Blank numbers.) CHAPTER 59. STATE IRRIGATION UNDER THE CAREY ACT. ! 1380. Sources of information. 1381. The act of Congress. 1382. State statutes. 1383. Initiation of projects. 1384. Results so far obtained. 1385. Prices under Carey Act projects. 1386-1393. (Blank numbers.) CHAPTER 60. NATIONAL IRRIGATION. 1394. The Reclamation Act. 1395. Acquisition and protection of Federal water-right*. 1396. Power of the Secretary of the Interior. 1397. Acts of Congress, 61st Session (1909-10). 1398. Acts of Congress, 62d Session (1910-11). 1399. Progress of the work. 1400-1408. (Blank numbers.) TABLE OF CONTENTS. xxxvii [Vol. I, aecs. 1-1038. Vol. II, sect. 1039-1470.] CHAPTER 61. REGULATIONS OF THE DEPARTMENT OF THE INTERIOR UNDER THE RECLAMATION ACT. General information. Withdrawals and restorations. Additional entries. Cancellation. Widows and heirs of entryman. Control of sublaterals. Water-rights for lands in private ownership. Vested water-rights. Corporation lands. Reclamation of lands in private ownership. Cancellation of water-right. Water-right application. Water-right charges. Regulations as to the collection of reclamation water-right charges by re- ceivers of public moneys. Desert land entries within a reclamation project. CHAPTER 62. WATER USERS ASSOCIATIONS UNDER THE RECLAMA- TION SERVICE. 1409. Sources of information. 1410. Nature of Water Users Associations. 1411. Articles of incorporation and by-laws. 1412. Stock subscriptions and certificates. 1413. Assessments. 1414. Private holdings Excess lands. 1415. Contract with Secretary of the Interior. 1416. Completion of organization. 1417. Water-rights applications. 1418. Miscellaneous. 1419-1427. (Blank numbers.) CHAPTER 63. WATER USERS ASSOCIATIONS (CONTINUED). By Morris Bien. zxxviii TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] PAET VIIL STATUTES. 1428. DIGEST OF STATUTES. Introduction. 1429. FEDERAL STATUTES. Constitution. Act of 1866. Desert Land Act. Other assurances of local law. Withdrawal Acts. Right of Way and Reservoir Site Acts. Water-power projects on navigable waters. Carey Act. National Irrigation Act. Debris Act. Irrigation investigation. The public survey. Miscellaneous. 1430. ALASKA STATUTES. 1431. ARIZONA STATUTES. Constitution. Declaration of public ownership. Miscellaneous. 1432. CALIFORNIA STATUTES. Constitution. Declaration of State or public ownership. Administration. Concerning riparian rights of private land. Appropriation of water on public land. Water-power Act of 1911, Interstate waters. Percolating water. Mineral waters. Navigable waters. Hydraulic mining. Eminent domain. Public service Water companies and consumers 'Constitution. Public service Civil Code. TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. n, ieci. 1039-1470.] Public service General statutes. Mutual companies. Municipal ownership. Irrigation district statutes. Eeclamation districts. Injunctions. Penal statutes. Public Health Act. Miscellaneous. 1433. COLORADO STATUTES. Declaration of public ownership. Appropriation. Preferences and pro-rating. Concerning riparian rights. Ditches on private land Eminent domain. Administration. Determination of existing priorities. Change of point of diversion. Method of appropriating. Fees of State Engineer. Public service Water companies and consumers. Crimes. Irrigation districts. Miscellaneous. 1435. IDAHO STATUTES. Declaration of State ownership. Appropriation. Concerning riparian rights. Ditches on private land. Eminent domain. Preferences and pro-rating. Administration. Determination of existing priorities. Method of appropriating. Public service Water companies and consumers. Irrigation districts. Measurement of water. Crimes Police regulations. Carey Act. Miscellaneous. 1436. KANSAS STATUTES. Concerning riparian rights. Administration. Eminent domain Canals on private land. xl TABLE OF CONTENTS. [Vol. I, tecs. 1-1038. Vol. II, sec. 1039-1470.] Preferences. Method of appropriating. Public service Water companies and consumers. Underground water. Irrigation districts. Miscellaneous. 1437. MONTANA STATUTES. Declaration of State ownership. Concerning riparian rights. Administration. Method of appropriating. Determination of existing priorities. Public service Water companies and consumers. Irrigation districts. Miscellaneous. 1438. NEBRASKA STATUTES. Declaration of public ownership. Appropriation. Concerning riparian rights. Ditches on private land. Eminent domain. Preferences and pro-rating. Administration. Determination of existing priorities. , Method of appropriating. Measurement of water Beneficial use Forfeiture for nonuse. Public service Water companies and consumers. Mutual companies. Federal water-rights. Water-power. Crimes. Irrigation districts. Percolating water. Fees of State Engineer. Miscellaneous. 1439. NEVADA STATUTES. Declaration of State ownership. Concerning riparian rights. Determination of existing priorities. Method of appropriating. Fees of State Engineer. Duty and measurement of water. Public service Water companies and consumers. Crimes and police regulations. TABLE OF CONTENTS. xli [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] Irrigation districts. Miscellaneous. 1440. NEW MEXICO STATUTES. Declaration of public ownership. Appropriation. Concerning riparian rights. Administration. Determination of existing priorities. Method of appropriating. Duty and measurement of water. Eminent domain. Miscellaneous. Irrigation law of 1907. Irrigation districts. Miscellaneous. 1441. NORTH DAKOTA STATUTES. Declaration of State ownership. Concerning riparian rights. Administration. Determination of existing priorities. Method of appropriating. Duty and measurement of water. Fees of State Engineer. Miscellaneous. 1442. OKLAHOMA STATUTES. Declaration of public ownership. Concerning riparian rights. Eminent domain. Administration. Adjustment of existing priorities. Method of appropriating. Measurement of water. Miscellaneous. 1443. OREGON STATUTES. Concerning riparian rights. Irrigation districts. Public service Water companies and consumers. Miscellaneous. Water law of Oregon of 1909. Laws of 1911. Practical working of the Oregon water law. 1444. PHILIPPINE ISLANDS. xlii TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] 1445. SOUTH DAKOTA STATUTES. Declaration of public ownership. Concerning riparian rights. Ditches on private land Eminent domain. Administration. Determination of existing priorities. Method of appropriating. Fees of State Engineer. Duty and measurement of water. Public service Water companies and consumers. Miscellaneous. Practical working of the South Dakota water law. 1447. UTAH STATUTES. Declaration of public ownership. Concerning riparian rights. . Ditches on private land Eminent domain. Preferences and pro-rating. Administration. Determination of existing priorities. Method of appropriating. Measurement of water. Fees of State Engineer. Irrigation districts. Miscellaneous. 1448. WASHINGTON STATUTES. Eminent domain. Eiparian rights. Supervision of appropriators. Adjustment of existing priorities. Method of appropriating. Public service Water companies and consumers. Irrigation districts. Irrigation on State lands. Miscellaneous. 1449. WYOMING STATUTES. Declaration of State ownership. Appropriation. Concerning riparian rights. Ditches on private land Eminent domain. Preferences. Administration. Determination of existing priorities. TABLE OF CONTENTS. sliii [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] Method of appropriating. Fees of State Engineer. Duty and measurement of water. Public service Water companies and consumers. Irrigation districts. Carey Act. Miscellaneous. PART IX. FORMS. 1459. FEDERAL FORMS. EECLAMATION SERVICE FORMS. Notice of appropriation by the United States. Water Users Associations. RIGHT OF WAY AND RESERVOIR SITE FORMS. Forms of General Land Office, numbers 1 to 12. FOREST SERVICE WATER-POWER FORMS. Form 58. Application for preliminary water-power permit. Form 59. Preliminary water-power permit. Form 60. Application for final water-power permit. Form 61. Water-power stipulation. Form 62. Final water-power permit. Form 63. Transmission line permit. 1460. CALIFORNIA FORMS. Notice of appropriation. 1461. COLORADO FORMS. Form of title of map. Statement for ditch. '/ Filings for pipe-lines. Filings for seepage ditches. Statement for reservoir. Engineer's affidavit. Changes, enlargements and extensions. Amended filings. Preliminary filings. Certificate on map. xliv TABLE OF CONTENTS. [Vol. I, tecs. 1-1038. Vol. II, sees. 1039-1470.] Certificate on duplicate. Certificate for two or more sheets. Sheets No. 2, No. 3 (etc.), to be filed with State Engineer. Duplicate of sheet No. 1, to be filed with county clerk. Sheets No. 2, No. 3 (etc.), to be filed with the county clerk. Fee list. 1462. IDAHO FORMS. Application for permit to appropriate the public waters of the State of Idaho. Notice of proof of completion of works. Notice of proof of application of water to beneficial use. Notice of publication. Notice for publication Notice of proof of application of water to bene- ficial use. Notice of proof of completion of works and application of water to bene- ficial use. Proof of completion of works Deposition of holder. Proof of completion of works Deposition of witness. Proof of application of water to beneficial use Deposition of holder. Proof of application of water to beneficial use Deposition of witness. Report of water commissioner. Certificate of completion of works. Water license. 1463. NEBRASKA FORMS. Application for a permit to appropriate the waters of the State of Nebraska. Township plats Showing line of ditch or canal. Application for permit to appropriate the waters of the State of Nebraska for power. Township plats Showing course of stream and location of works. Petition for a permit to relocate irrigation works. Township plats Showing line of ditch or canal. Application for a permit to construct drainage works. Township plats Showing course of canal and location of lake. Claim for the waters of the State of Nebraska. Township plats Showing line of ditch or canal. Proof of appropriation of the waters of the State of Nebraska. Proof of appropriation of the waters of the State of Nebraska for power. Certificate of appropriation of water. 1464. NEVADA FORMS. Application for permit to appropriate the public waters of the State of Nevada. Notice of application for permission to appropriate the public waters of the State of Nevada. Proof of application of water to beneficial use. Proof of the appropriation of water. TABLE OF CONTENTS. xlv [Vol. I, tecs. 1-1038. Vol. n, sec*. 1039-1470.] Application for permission to change the point of diversion, manner of use, point of use. Certificate of appropriation of water. 1465. NEW MEXICO FORMS. Application for permit to appropriate the public waters of the territory of New Mexico. Approval of Territorial Engineer. Territorial Engineer's instructions and explanations for filling out applica- tion blanks. Bond. Notice of application for permit. Certificate of construction. License to appropriate water. 1466. NORTH DAKOTA FORMS. Application for a permit to appropriate water within the State of North Dakota. Application for a permit Enlargement. Notice of intention to appropriate water. Proof of publication. 1467. OREGON FORMS. State Engineer's instructions and suggestions. Application for a permit to appropriate the public waters of the State of Oregon. Application for a permit to appropriate the public waters of the State of Oregon [enlargement of existing works]. Application for a permit to construct a reservoir and to store for beneficial use the unappropriated waters of the State of Oregon. Petition for determination of water-rights. Notice of proceedings to determine water-rights. State Engineer's instructions accompanying notice of adjudication of water- rights. Statement and proof of claimant in adjudication of rights. Notice of completion of testimony. Certificates. 1468. SOUTH DAKOTA FORMS. Application for a permit to appropriate water within the State of Soutfi Dakota. Enlargement Application for a permit to appropriate water within the State of South Dakota. Published notice of application. Proof of publication. Notice of completion of works. xlvi TABLE OF CONTENTS. [Vol. I, sees. 1-1038. Vol. II, sees. 1039-1470.] Certificate of examination of works. Certificate of construction of works. Notice of application of water to beneficial use. Certificate of application of water to beneficial use Deposition of holder. Water license. Dry draw filings. Dry draw certificate. 1469. UTAH FORMS. Irrigation Application to appropriate water. Application for other purposes. Irrigation Proof of appropriation of water. Certificate of appropriation of water. 1470. WYOMING FORMS. State Engineer's instructions and suggestions to applicants for permits to appropriate water. Application for a permit to divert and appropriate the water of the State of Wyoming. Enlargement Application for a permit to divert and appropriate the water of the State of Wyoming. Application for a permit to construct the Eeservoir, and to store the unappropriated water of the State of Wyoming. Ditch proof of appropriation of water. Eeservoir proof of appropriation of water. (Adjudication) proof of the appropriation of water. Certificate of appropriation of water. TABLE OF STATUTES CITED. [A table of statutes cited is contained at the end of each State in Part VIII.] TABLE OF CASES CITED. [The table of cases cited is contained in Volume IE.] INDEX. [An index to both volumes is contained in Volume EL] WATER RIGHTS IN THE WESTERN STATES, PAET I. FIEST PKINCIPLES. CHAPTER 1. RUNNING .WATER. 1. Classification of waters. 2. The negative community. 3. Development in the common law. 4. American authorities. 5. Common or public. 6. State in trust for the people. 7. Conclusion. 8-14. (Blank numbers.) (3d ed.) 1. Classification of Waters. From the point of view of the law, occurrences of water consist of two great classes: Those definite in form and occurrence, and those diffused, indefinite in form and occurrence. The definite class includes running water (watercourses, surface or subterranean) and standing water (lakes and ponds). The indefinite class includes diffused surface water (rain water, swamps, etc., the sea), and diffused under- ground water (percolating water). It is with definite bodies of running water, that is, watercourses, that the law has most to do. The law of watercourses 'is a law of streams as natural re- sources. The water running therein unrestrained is the property of no one, but a portion of it taken out of the stream and confined in the possession of an individual becomes the taker's private property, Water Rights 1 (1) 2 (3d ed.) Pt. I. FIRST PRINCIPLES. 2 belonging to him while under his possession and control; and the law of watercourses is a development of the rules under which one may thus take of the water and make it his own. There is a large body of law specifying who may avail themselves of this privilege and to what limitations they are subject, forming, in the common law, "the law of riparian rights," and in the West, "the law of prior appropriation." It is our object here, in this first part, to consider, in its elementary lines, this framework of the law of watercourses; leaving to later presentation the rules of "riparian rights" or "appropriation" that have been built around it. 1 (3d ed.) 2. The Negative Community. In the Institutes of Justinian it is declared concerning things : ' ' They are the property of some- one or no one." 2 As further expressed in the Institutes, "By nat- ural law these things are common to all, viz. : Air, running water, the sea and as a consequence the shores of the sea." 3 Comment- ing on this Vinnius says: "Things common are such because, while by nature being things everyone has use for, they have not, as yet, come into the ownership or control of anyone."* That is, they are the property of no one, within the first quota- tion from the Institutes. This classification of running water with what has been called "the negative community," such as the air, runs through the civil-law authorities. Pothier's exposition of it is as follows: 5 "The first of mankind had in common all those things which God had given to the human race. This community was not a positive community of interest, like that which exists between several persons who have the ownership of a thing in which each has his particular portion. It was a community which those who have written on this subject have called a negative com- 1 Acknowledgment is made to the 2, tit. 1, see. 1. Mr. Ware (Ware's Harvard Law Review, to which the Roman Water Law) gives chiefly the writer contributed part of the fol- Pandects or Digest, and does not lowing chapters. 22 Harvard Law give this passage in the Institutes. Review, 190. 4 "Communia sunt quae a natura 2 "Vel in nostro patrimonio vel ad omnium usum prodita, in nullius extra nostrum patrimonium." As adhuc ditionem aut dominium per- translated in Lux v. Haggin, 69 Cal. venerunt." Quoted in Mason v. Hill, 315, 10 Pac. 674. 5 Barn. & Adol. 1, 110 Eng. Re- 3 "Et quidem natural! jure, com- print, 692. munia sunt omnium haec: aer et aqua 5 Pothier, Traite du Droit de Pro- profluens, et mare, et per hoc, littora priete, No. 21. maris." Institutes of Justinian, lib. a Ch. 1. RUNNING WATER. (3d ed.) 3 munity, which resulted from the fact that those things which were common to all belonged no more to one than to the others. [Then, after saying that in the course of time men divided up among themselves almost all things, and most things have passed out of the negative community and become recognized as private property, proceeds:] Some things, however, did not enter into this division, and remain, therefore, to this day in the condition of the ancient and negative community. These things are those which the juris-consults called res communes. Marcien refers to several kinds the air, the water which runs in the rivers, the sea and its shores As regards wild animals ferae naturae, they have remained in the ancient state of the negative com- munity. 6 All these things, which remained in the ancient state of the negative community, are called things common because subject to becoming the property of anyone who takes of them. They are also called res nullius, because no one owns them while in this state, and cannot own them but by getting them into his possession. These are the things which, belonging to no one to the extent that they have remained in the negative community, are susceptible of being held by right of possession." 7 The law is laid down to the same effect by Puffendorff, Grotius, Vattel, Pardessus, and the other great civil-law commentators. A later chapter has been devoted to their presentation, as other- wise they would be inaccessible to most readers, and they throw light upon this fundamental matter. They will also be of use to practitioners in the Southwest, where the Mexican law sometimes crops up. There is no need, however, to encumber this part of the book by cumulative quotation here. The reader is referred for them to another place. 8 This was found to be the civil law by the common-law cases which investigated it. In an early English case the civil-law authorities are stated as follows: "By the Roman law, running 6 Thus far, the translation is that chacun a de s'en emparer. Elles sont given in Geer v. Connecticut, 161 U. aussi appellees res nullius, parce S. 525, 16 Sup. Ct. Rep. 600, 40 L. qu'aucun n'en a la proprietr, tant Ed. 793. The remainder of the pas- qu'elles demeurent en cet 6tat, et nc sage is the present writer's transla- peut Pacquerir qu'en s'en emparant. tion, to which the original is ap- Ce sont ces choses qui, n'appartien- pended. nent a personne, en tant qu'elles sont 7 "Toutes ces choses, qui sont de- restc'es dans la communaute negative, murrees dans 1'ancien etat de com- qui sont susceptibles de 1'acquisition munaute negative, sont appellees res qui se fait a titre d'occupation." communes, par rapport au droit que 8 Infra, sec. 1025 et seq. 4 (3d ed.) Pt. I. FIEST PRINCIPLES. 3 water, light and air were considered as some of those things which had the name of res communes, and which were defined 'things the property of which belongs to no person,' " etc. 9 In a leading English case where the civil-law authorities are set forth and examined, the same conclusion was reached concerning the Roman law. 10 It is also the civil law as in force to-day. A modern French work says : "The things which, suited alike to the use of all men are not susceptible of exclusive possession cannot, on this ac- count, form the object of a right of property. These things, which the Roman law called res omnium communes, are the air, the deep sea, and running water as such; that is to say, in the sense that one sees it in its state of continual motion and cease- less change." 11 Likewise the modern Spanish law, regarding which Eschriche says that waters of fountains and springs as they go out from thence "Become running water (aqua profluens), and pertain like common things (cosas comunes)," etc. 12 The result of these authorities is that the corpus of naturally run- ning water the water in the natural resource was classed in the Institutes and civil-law writers with the air, and those things which cannot be owned while in their natural state and condition, or as they have been called, the "negative community." 13 (3d ed.) 3. Development in the Common Law. This civil-law prin- ciple that running water is in the "negative community" passed into the common law. It was taken up by the mediaeval English law-writers. As regards a related branch of the law of waters Liggins v. Inge, 7 Eing. 692. nantiales son proprias de los duenos de 10 Mason v. Hill, 5 Barn. & Adol. los terrenes en que nacen 6 de los 1, lit) Eng. Reprint, 692, quoted in campos inferiores que ban adquirido the next section. derecho su aprovechamiento, mien- 11 "Les choses qui, destinees a tras permanecen dentro de su reciato; 1'usage commun de tous les hommes, pero asi que salen de el se hacen ne sont pas susceptibles de possession aguas corrientes, aqua profiuens, y exclusive, ne peuvent, par cela meme, pertenecen como cosas comunes al former 1'object du droit de propriete. primero que las ocupa, en cuanto Ces choses, que le droit Roman ap- tiene necesidad de ellas. Los pri- pellait res omnium communes, sont meros que pueden ocuparlas son los Pair, la haut mer, et I'eau courante duenos de las heredades que aquellas comme elle; c'est-a-dire en tant qu'on banan 6 atraviesan." Eschriche, 1'envisage dans son etat de mobilite "Aguas." continue, et de renouvellement in- 13 Pothier and Pardessus, supra; cessant." (Droit Civile Francais, by Ohio Oil Co. v. Indiana, 177 U. S. ]90, Aubrey & Rau, 4th ed., vol. II, p. 34.) 20 Sup. Ct. Rep. 576, 44 L. Ed. 729, 12 "Las aguas de fuentes y ma- 20 Morr. Min. Rep. 466. 3 Ch. 1. RUNNING WATER. (3d ed.) 5 (the law of accretion) it has been expressly said: ^Our law may be traced back through Blackstone, 14 Hale, 15 Britton, 16 Fleta, 17 and Bracton, 18 to the Institutes of Justinian, 19 from which Bracton evidently took his exposition of the subject." 20 The passage in the Roman Institutes above quoted, classing running water, as a substance, with the air, is transcribed by Bracton as the law of England, saying: 21 "By natural law itself, these things are com- mon to all running water, air, and the sea, and the shores of the sea, as the sea's accessories." The passages in Fleta and Britton are somewhat similar. 1 In the rest of this chapter we shall follow this down the history of the law until we find it in the modern authorities. The classification of running water with the air is taken up by another of the older writers, frequently referred to in the English reports. 2 He finds the civil-law rule in conflict with the maxim, "Cujus est solum, ejus est usque ad caelum." Callis says: "It may here, as I take it, be moved for an apt question, in whom the property of running waters was. 3 In my conceit, the civil law makes prettier and neater distinctions of those than our common law doth; for there it is said that naturali ratione quaedam sunt communia, ut aer, aqua profluens, mare, et littora maris. I concur in opinion with them, that the air is common to all ; and I hold my former definitions touching the properties of the sea and the sea- shores. But that there should be a property fixed in running waters, I cannot be drawn to that opinion ; for the civil law saith further, quod aqua profluens non manet in certo loco, sed procul fuit extra ditionem ejus quod flumen est ut ad mare tandem perveniat; for in my opinion, it should be strange the law of property should be fixed upon such uncertainties as to be altered into meum, tuum, suum, before these words can be spoken, and to be changed in every 14 Vol. II, c. 16, pp. 261, 262. maris accessorial Bracton, lib. 2, f. 15 De Jure Maris, cc. 1, 6. . 7 > f*-*^ .^ ^ g Bk - n > c - 2 - 2 Callis on Sewers, p. 78, original 17 Bk. Ill, c. 2, sec. 6, etc. edition (1622), quoted in Medway 18 Bk II c 2 Co - v - Romney, 9 Com. B., N. S., 587, ' ' 7 Jur -> N - S -> 846 > 30 L - J - C - P - 236 - Sewer" anciently signified small 19 T,nt TT ist. j.i, 20 Lmdley, L. J., in Foster v. streams and brooks of fresh water. Wright, 4 C. P. D. 438, 49 L. J. C. 3 Citing Natura Breva, fol. 123; p - 97 - \ and PI. Com. 154; and 12 H. 7, fol. 21 "Naturali vero jure communia 4, as recognizing a plaintiff as hav- sunt omnium haec aqua proftuens, ing a property in the water as well aer, et mare, et littora maris, quasi as the soil. 6 (3d ed.) Pt. I. FIRST PRINCIPLES. 3 twinkling of an eye, and to be more uncertain in the proprietor than a chameleon of his colours. ' ' This is the first express recogni- tion the writer has discovered, of the conflict between this prin- ciple and the maxim ' ' Cujus est solum. ' ' 4 In one of the older cases holding that ejectment would not lie for a watercourse it is said that livery could not be made of it, "for non moratur, but is ever flowing," and comparing running water to the water in the sea. 5 This case is cited in the well- known case of Shury v. Piggot (1625), where (among many other things said) "aqua profluens" was compared to the air, which "aut invenit, aut facit viam," and also "The same [the water- course] being a thing which arises out of the land, but no interest at all by this claimed in the land, but quod currere solebat in this way, and so to have continuance of this." 6 Lord Bacon spoke of "common property which, like the air and water, belongs to everybody. ' ' 7 The peculiar nature of running water was later referred to by Blackstone, who gives several emphatic statements of it as the settled law of England. He says: "But, after all, there are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common Such (among others) are the elements of light, air and water," and he also speaks of "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 again, "For water is a mov- 4 Lord Coke says: "Land in legal 14 Hen. VIII, fol. 12; 22 Hen. VI, signification comprehendeth any 59; 10 Edward IV, 14." Coke on ground, soil or earth whatsoever, as Littleton, lib. cap. 1, sees. 1, 4a. See meadows, pastures, woods, moors, Blackstone's Commentaries, Bk. II, p waters, marshes, furses and heath," 18. That the law, while applying discussing the meaning of "land," this maxim to percolating water, does adding in the same note: "Also the not follow it as to running water, see waters that yield fish for the food sec. 696, infra. and sustenance of man are not by 5 Challenor v. Thomas, Yelv. 143, that name demandable in a praecipe; 80 Eng. Eeprint, 96. but the land whereupon the water 6 Jones, J., in Shury v. Piggot, 3 floweth or standeth is demandable, as, ' Bulst. 340, 81 Eng. Reprint, 280. for example, viginti acras terrae aqua This case is closely connected with coopertas. And lastly the earth the maxim, "Aqua currit et debet hath in law a great extent upwards, currere ut currere solebat." Infra, not only of water, as hath been said, sec. 667. but of aer and all other things even ^ Life of Bacon, English Men of up to heaven ; for cujus est solum ejus Letters Series, p. 67. est usque ad caelum, as is holden in 3 Ch. 1. RUNNING WATEE. (3d ed.) 7 able, wandering thing, and must of necessity continue common by the law of nature. ' ' 8 The beginning of the last century saw a re-examination into the nature of rights in running water. In 1805, in Bealey v. Shaw, 9 Lord Ellenborough laid down the right, but without dis- cussing the foundation of it. 10 In 1823, however, in Wright v. Howard, 11 it was said of a stream, "there is no property in the water." In 1824, in Williams v. Moreland, 12 appear the expres- sions, "Flowing water is originally publici juris/' and "running water is not in its nature private property." In 1831, in Liggins v. Inge, 13 ' ' Water flowing in a stream, it is well settled by the law of England, is publici juris." In Mason v. Hill, 14 decided in 1833, Lord Denman elaborately considered the attitude of the law toward running water, with the intention ' ' to discuss, and, so far as we are able, to settle the principle upon which rights of this nature depend, ' ' and this case has been generally accepted as accomplishing this re- sult, settling the common law of watercourses in its present form. 10 Lord Denman quotes at length from the civil law, and says con- cerning it: "No one had -any property in the water itself except in that particular portion which he might have abstracted from the stream and of which he had the possession, and during the time of such possession only," and says that the expressions of Blackstone and the common-law cases just quoted calling running water "publici juris," simply adopted into the common law this principle that the water itself was not the subject of private owner- ship. This was followed very explicitly in the succeeding English cases. In one 16 it was said: "Flowing water, as well as light and air, are in one sense 'publici juris.' They- are a boon from Providence to all and differ in their mode of enjoyment. Light and air are diffused in all directions, flowing water in some." 8 Blackstone's Commentaries, Bk. 15 See to this effect regarding II, pp. 14, 18, 395. Mason v. Hill, Cocker v. Cowper, 5 9 6 East, 208, 102 Eng. Beprint, Tyrw. 103, 1 C. M. & R. 418; Embrey 1266. v. Owen, 6 Ex. 353; Stockport W. W. 10 In 12 East, 420, 104 Eng. Re- v. Potter, 3 Hurl. & C. 323; McGlone print, 167, he says the right rests on v. Smith, 22 L. R. Ir. 568; Lord prescription. Blackburn, in Orr Ewing v. Colqu- 11 1 Sim. & St. 190, 57 Eng. Re- houn, 2 App. Gas. 854; Pugh v. print, 76. Wheeler, 2 Dev. & B. (N. C.) 50, 12 2 Barn. & C. 910, 107 Eng. Re- Ruffin, C. J.; Angell on Watercourses, print, 620. 7th ed., sec. 133; Salmond on Torts, 13 7 Bing. 692, 5 M. & P. 712. p. 254; Gale on Easements, 8th U 5 Barn. & Adol. 1, 110 Eng. Re- (1908) ed., part 3, c. I, p. 258. print, 692. 16 Wood v. Waud, 3 Ex. 748. 8 (3d ed.) Pt. I. FIRST PRINCIPLES. 4 In another: 17 "The water which they claim a right to take [from a spring] is not the produce of the plaintiff's close; it is not his property; it is not the subject of property. Blackstone, follow- ing other elementary writers, classes water with the elements of light and air." And in the classical case of Embrey v. Owen, 18 this finds what may be called its crystallized expression in the English reports. In this case Baron Parke (who had also taken part in the judgment in Mason v. Hill) said: "Flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only: that all may reasonably use it who have a right of access to it; that none can Jiave any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. " 19 As late as the 1906 Appeal Cases the Chancellor said that running water is "publici juris," and a claim to ownership of the corpus of the water of a stream was said by another of the lords to be "opposed to elementary ideas about the water of a river," and ' ' repugnant to the general law of rivers. ' ' 20 (3d ed.) 4. American Authorities. Of the authorities Chief Justice Gibson said : 21 " They establish that the use of water, flowing in its natural channel, like the use of heat, light or air, has been held by every civilized nation from the earliest times to be common by the law of nature, and not merely public, like the use of a riyer or a port, which is subject to municipal regulation by the law of the place. They establish, also, that the domestic uses of water are its natural and primary ones. Air is not more indispensable to the support of animal or vegetable life. Water is borne by the air, in the form of vapor, to the remotest regions of the earth, for the free use and com- mon refreshment of mankind; and to interdict the use of the one within any given locality, would be as monstrous and subversive 17 Race v. Ward, 4 El. & B. 702. He cannot say of any pint or globule 18 6 Ex. 355. of water that that pint or globule is 19 "It is a right of the same char- his." Pollock, B., in Kensit v. Great acter as the right to the pure flow of Eastern Ry. (1883), 23 Ch. D. 566. air, and is a right of such a nature 20 White v. White, [1906] App. Gas. that the person who enjoys it cannot 83. at any time fix upon a particular por- 21 Mayor v. Commissioners, 7 Pa, tion of water to which he is entitled. 363. 4 Ch. 1. RUNNING WATER. (3d ed.) 9 of the scheme of animal existence, as it would be to interdict the use of the other. It is only when it has been received on the surface of the earth, not while it is falling from the clouds, that it can be made to minister to the ordinary wants of life ; and if it be common at first, it must continue to be so while it is returning, by its natural channels, to the ocean. No one, there- fore, can have an exclusive right to the aggregate drops that com- pose the mass thus flowing, without contravening one of the most peremptory laws of nature. Water may be exclusively appro- priated by being separated from the mass of the stream, and con- fined in tanks or trunks, but then it would have ceased to be aqua profluens." And adds that a grant of water power "is not a grant of property in the corpus of the water as a chattel." Another early case says: "It is too late to enter into the legal character and quality of water; the law having been settled, time out of mind, on this subject, and remained uniform and un- questioned. Water is neither land nor tenement, nor susceptible of absolute ownership. It is a movable, wandering thing; and must of necessity continue common by the law of nature. It ad- mits only of a transient usufructuary property ; and if it escapes for a moment, the right to it is gone forever; the qualified owner having no legal power of reclamation Hence, as it is said in the authorities just cited, water is a distinct thing from the land. The truth of this observation will be recognized by every person who understands the natural properties of each. No ac- tion of trespass is sustainable for poisoning the water on a person's land. 22 But trespass on the case may be maintained for the injury done to a usufructuary right. The same observa- tion is equally applicable to air and light; and on account of its fugitive nature water is classed by all jurists with these ele- ments." 23 And as a very recent statement, "The plaintiff [as riparian owner] certainly has no property in the particles of water flowing in the stream, any more than it has in the air that floats over its land. Its rights in that respect are confined to their use and in preserving their purity while passing. So, the fish in the stream were not the property of the plaintiff at common law, any more than the birds that flew over its land." 24 22 Citing 3 Blackstone's Commen- 23 Mitchell v. Warner, 5 Conn. 519. taries, 217; Luttrel's Case, 4 Coke, 24 Willow River Club v. Wade j 84, 76 Eng. Reprint, 1063. (1898), 100 Wis. 86, 76 N. W. 273, 1 42 L. R. A. 305. 10 (3d ed.) Pt. I. FIRST PRINCIPLES. , 5 In recent California cases the water is said to belong at common law to the riparian proprietors "by a sort of common right." 25 It appears throughout the California reports, as hereafter quoted. This has passed into the present Western law of appropriation also. Authorities are fully cited later on. 26 There is a very recent tendency to apply this also to the owner- ship of percolating water under the recent modification of the law with respect thereto. In the supreme court of the United States percolating water was said in some ways to be, like run- ning water, in the negative community, 27 and recent California cases say that percolating water no longer belongs to the man in whose land it lies, as was the old rule which distinguished it from running water, but that, until possession is acquired, the owner- ship is in the public, or at least that portion of the public owning the surface soil, and it is common to a large portion of the com- munity. 28 (3d ed.) 5. Common or Public. There is some variation of this in both civil and common-law authorities. One variation is in chang- ing the expression from " things common" to ''things public." Domat 29 names as common things the heavens, stars, light, air, sea ; as public things, the rivers, streams, their banks, highways. Fleta , (an early English writer) says: "Some things are common, as the air, sea, and shores of the sea ; others public, as the right of fishing and of using rivers and harbors." 1 And Lord Denman, in Mason v. Hill, 2 says: "It is worthy of remark that Fleta, enumerating the res communes, omits 'aqua profluens.' " The same may be said of Britton 3 (another early English writer), declaring, "Some things 25 Anaheim W. Co. v. Puller, 150 Cf. Redfield, C. J., in Ford v. Whit- Cal. 327, 88 Pac. 978, 11 L. R. A., lock (1855),. 27 Vt. 265, saying N. S., 1062; Turner v. James Canal streams are of quasi-public concern, Co., 155 Cal. 82, 132 Am. St. Rep. because they affect a large number 59, 99 Pac. 520, 22 L. R. A., N. S., of people. 401, 17 Ann. Cas. 823. 29 Liv. prelim., tit. 3, s. 1, p. 16. 26 Infra, sees. 18, 275-278. , , 8> fc Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 2 5 Barn - & Adol. 1, 110 Eng. 766, 64 L. R. A. 236, Temple, J., Reprint, 692. said: "The members of the community 3 Bk. II, c. II, sec. 1; Nichols* have a common interest in the water." Translation, p. 175. 6 Ch. 1. RUNNING WATER. (3d ed.) 11 are common, as the sea, the air, and the seashore, and as the right of fishing in tidal waters and in the sea and in common waters and rivers ' ' ; though in a later section 4 he includes wild animals among the things common, and he also classes rivers, like Fleta, among UTe things public instead of common. So, many common-law cases al- ready quoted use the expression "publici juris." In conjunc- tion with this change of expression, a few writers substituted rain water for running water among the things common. One civil-law writer 5 commenting on the Institutes reads aqua pluvialis for pro- fluens, as among res communes, and classes flumina with res pub- licae. In another civil-law work "cosas comunes" are defined as those "qui sirven a los hombres y demas vivientes como el aire, el agua llovediza [rain water] el mar y sus riberas. " 6 It is evident how this came about. In addition to the passage \ above, classing running water (aqua profluens) with the common I things, there is a different passage in the Institutes saying, ' ' But all \ rivers and harbors are public, ' ' 7 probably referring to navigation. This has induced some commentators to class running water as public, and then substitute rain water among the list of "thing, 1 common. ' ' 8 But the Institutes, with regard to air, running water, and wild animals, make no distinction ; calling running water common, even though also calling rivers public as regards naviga- tion. 9 (3d ed.) 6. State in Trust for the People. However, as an outgrowth of this variation of the idea of the "negative community" the change from "common" to "public" there is quite generally to-day a tendency to substitute the positive expression that running 4 Sec. 3. tation in Bracton's time. Azo ques- 6 Nicasius, lib. 2, tit. 1, 89b. tions ( and Bracton so notes) whether _ __. , -KT m i vu o there may not be a distinction be- 6 TVhrprn Novisimn lib , . iMovisimo, i. i, 11 u ,, tween things common and things pub- tit. 1; Lux v. Haggm, 69 Cal. 316, j. Qther & haQ faat m&de IQ f h / In . 10 Pac. 674. See other civil-law gti ^ teg Meta an(J Britton to authorities infra, sec. 1025. bfi influenced by this note o y Brac . 7 "Flumina autem omma et portus ton> and having put rivers into "public publica sunt." things" (as do the Institutes), feel a 8 Professor Maitland says in his necessity then to depart from the In- commentary upon Bracton in the pub- stitutes and omit running water from lications of the Selden Society, that the "common things." Bracton is substantially a copy of the 9 The complete classification in the work of an Italian commentator upon Institutes of Justinian is quoted in the Institutes of Justinian a jurist full in the chapter devoted to the civil of Bologna named Azo, of great repu- law. Infra, sec. 1025 et seq. 12 (3d d.) Pt. I. FIRST PRINCIPLES. 6 water belongs to the State in trust for the people or the public, in analogy to a similar change in the way of stating the law regarding wild game, and the law of the beds of navigable waters. Thus, while the shores of the sea and beds of navigable waters are, in the civil law, in the negative community and "common" as distin- guished from ' ' public, ' ' 10 the modern common-law phrase is that they are owned by the State in trust for the people. 11 The same* change is fairly well established regarding wild animals or game. 12 In nearly all now of the Western States this change of ex- pression is, by statute, introduced regarding running water. 13 All waters within the State are declared to be "the property of the public" (or to "belong to the public") in Arizona, California, Colorado, Montana, Nevada, New Mexico, Oklahoma, Oregon, North Dakota, South Dakota, Texas, Utah and Wyoming; while in Idaho, Nevada, North Dakota and Wyoming there are also declarations that waters are "the property of the State." 14 Some of the expressions in the cases construing these provisions consider them simply as an affirmance of the idea of the "negative community," as, for example, "The waters become per- force publici juris," 15 or, "The waters of flowing streams are publici juris, the gift of God to all His creatures," 16 and the Idaho court held that a suit to determine the rights of all water users on a stream was not a suit concerning rights in State prop- erty. 17 But some of the decisions adopt, as a result of these stat- utes, the expression that running water "belongs to the State in trust for the people. ' ' 18 10 Infra, sec. 898. Cal. 397, 58 Am. St. Rep. 183, 48 Pac. 11 Infra, see. 898. 374, 39 L. R. A. 581.) Until actu- 12 Geer v. Connecticut, 161 U. S. ally reduced to possession, the fish 519, 16 Sup. Ct. Rep. 600, 40 L. Ed. belong to all the people of the State 793. Tn this, the leading case, Field, in common." Ex parte Bailey, J.55 J., dissented, however, because he be- Cal. 472, 132 Am. St. Rep. 95, 101 lieved wild animals belonged neither to Pac. 441. the State, nor the public, nor individu- 13 g ee i n f ra> see . 170. als, but to no one. being in the nega- , T ,, tive community, and thf difference in . 14 In f> f J 70 ;, In California, the mode of expression he believed ft , an ,, act of 19 ^' ( he Declaration is material, and should be maintained. ^a** *f % t ! P /Ti / - Mr. Justice Angellotti, in a recent P 60 ? 16 of the State of California." California case, says: "Nothing ia 15 Willey v. Decker, 11 Wyo. 496, better settled than the doctrine that 10 Am - st - Be?- 939 > 73 Pa <5- 21 - the ownership of wild game, not re- 16 Mohl v. Lamar Canal Co. (C. C. duced to actual possession by private Colo.), 128 Fed. 776. parties, of which the fish in our waters 17 Bear Lake Co. v. Budge, 9 Idaho, constitute a part, is in the people of 703, 108 Am. St. Rep. 179, 75 Pac. the State in their collective capacity. 614. (Citing People v. Truckee etc. Co., 116 18 Infra, sec. 170 et seq. 7 Ch. 1. RUNNING WATEB. (3d ed.) 13 This is the same modification of the original idea of the "nega- tive community" as that just pointed out the variation from ' ' common " to ' ' public. ' ' From saying that the running waters of a natural resource belong to no one at all, it is an easy transition to say that they belong to the State in trust for everyone. It had originally come about in the Desert States (the public land States) as opening a road to their departure from title in the United States to waters on the public domain within their limits. 19 In the pioneer California days the theory was that the corpus of running water on the public domain belongs to no one (neither United States, State, nor individuals), being a distinctly negative idea ; but that the right to its flow and use, the usufruct in the natural resource, belongs to the United States on public lands. 20 But the Desert States to-day deny to the United States any right of property with regard there- to; and this change from the "negative community" to the positive one of "State in Trust for the People" facilitates, or is the result of, this denial. (3d ed.) 7. Conclusion. For the present discussion, however, there is no substantial difference in the two forms of expression (that is, whether common or public; res communes or publici juris; the property of no one or the property of the State in trust for the people). So far as they concern the private rights of individuals, whether under the law of appropriation or the common law of riparian rights, both are founded on the ancient view taken by the law that running water unrestrained in its natural course belongs to the ' ' negative community ' ' and is nobody 's property ; its parti- cles or aggregate drops, in specie or as a substance, being outside the domain of what can constitute property ; just as no one can be said to own the air, the sea water, the rain or the clouds or the moon or stars, or the pearl at the bottom of the sea, the wild animals in the forest, or the fish swimming in the running stream itself. Like all these things, running water in its native condition is a substance wandering at large, obeying its own will and ever changing its form and position, uncontrolled by man, and with them, moves in "the negative community," whatever be the phrase adopted to express that idea. 19 Infra, sec. 167 et seq. 20 Kidd v. Laird, 15 Gal. 161, 76 Am. Dee. 472, 4 Morr. Min. Eep. 571. 8-14. (Blank numbers.) (3d ed.) Et. I. FIRST PRINCIPLES. 15 CHAPTER 2. THE USUFRUCT OF THE NATURAL RESOURCE. 15. Rights of use. 16. Same. 17. American authorities. 18. Western authorities. 19. Conclusion. 20-29. (Blank numbers.) (3d ed.) 15. Rights of Use. While the corpus of naturally running water is thus in the negative community and not the subject of private ownership (or "belongs to the public"), the law recog- nizes nevertheless a very substantial right in its flow and use, the right to have the liquid flow and to use it, which the law calls the "usufructuary right," or the "water right." The law of watercourses consists of the rules governing this right of flow and use of the natural resource. We do not stop long over this, merely giving authorities to show the distinction between the usu- fruct and the water itself. There is in the civil law a large body of law known as the law of "usufruct." 1 One civil-law writer says, continuing a passage quoted above: 2 "Though not susceptible of being property, things of this nature [the negative community] do not the less fall within the province of the law for the regulation of their use, which is not absolutely abandoned to the caprice of all." 3 Puffendorff, speaking of the air, one member of the negative community, says: "So, though no one will pretend to fix a property in the wind, yet we may appoint a service or duty of not intercepting the wind to the prejudice of our mills." 4 Another civil-law authority, 5 speak- ing of a riparian proprietor owning both banks of a stream, says 1 Inst. Just., lib. I, tit. IV, V, Droit Civile Francais, par Aubry & Pandects, lib. VII. See Noodt's "De Rau, 4th ed., vol. II, p. 35, citing Usufructu," opp. torn. 1, pp. 387-478. Code Napoleon, sec. 714. This article 2 Supra, sec. 2, note 11. 714 reads as follows: "There are 3 "Quoique non susceptibles de pro- things which belong to no one, and pri6te, les choses de cette nature n'en the use whereof is common to all. tombent pas moins sous 1'empire du The laws of police regulate the man- Droit pour le reglement de leur usage, ner of enjoying such things." qui n'est pas, d'une maniere absolue, 4 Puffendorff, lib. IV, c. V, sec. II. abandonne a la discretion de tous." 5 Hall's Mexican Law, sec. 1392. 15 Ch. 2. THE USUFEUCT. (3d ed.) 15 of the water: "It is not his own as to property, but only as to the use which he can make of it in its passage." When it is said that running water is common, it is meant that the stream is a common source of supply, which many individuals have the right to enjoy. In the old case of Shury v. Piggot, we recall the passages already quoted where it is said that aqua profluens is in a class with the air, and a man's right therein includes no interest in the land but only a right to continuance of flow, Blackstone says: "For water is a movable, wandering thing, and must of necessity continue common by the law of nature, so that I can only have a temporary, transient usufructuary property therein. ' ' 6 And again speaking of ' ' quali- fied property" as opposed to an absolute right of property, Black- stone 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 instant they are out of possession ; for, when 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." 7 One well-known English case says: "The prop- erty in the water itself was not in the proprietor of the land through which it passes, but only the use of it, as it passes along, for the enjoyment of his property, and as incidental to it." 8 The classical English expression is in Embrey v. Owen, 9 saying, as else- where quoted, 10 that flowing water is publici juris, in which, itself, none can have any property, but may have a right to reasonably use it. "Each proprietor of the adjacent land has the right to the 6 2 Blackstone's Commentaries, 18. 8 Wood v. Waud, 3 Ex. 775, citing 1 Blackstone's Commentaries, Bk. Stor 7 and Kent - TT P 2*> T> 3Q5 9 6 Ex - 353 - H, c. 25, p. 395. 16 (3d ed.) Pt. I. FIRST PBINCIPLES. 16 usufruct of the stream which flows through it," the right to the benefit and advantage of the water as it flows past. 11 (3d ed.) 16. Same. There is an interesting early Scotch case in which this phase of the law is analyzed. It is worth the attention of those who are interested in the history of the law. 12 Lord Kames reports it as follows: The lakes of Fanyside are distant about a mile or two from the River Aven. Between the lakes and the river is a mill taking water from the lakes. The waste water from the mill descends to the river, and is the only water that reaches the river unless when the lakes in great speats overflow their banks. The lakes, the mill and the whole surrounding lands belong to Mr. Elphinstone of Cumbernauld, and he projected an artificial canal to direct the water of the lakes into a different river. The pro- prietors of many mills upon the River Aven took the alarm, and commenced a declarator against Mr. Elphinstone. "At advising this cause, much darkness was occasioned by a notion that some of the judges unwarily adopted, as if a river could be appropriated like a field or a horse. A river, which is in per- petual motion, is not naturally susceptible of appropriation; and were it susceptible, it would be greatly against the public interest that it should be suffered to be brought under private property. In general, by the laws of all polished nations, appropriation is authorized with respect to every subject that is best enjoyed sepa- rately ; but barred with respect to every subject that is best enjoyed in common. Water is scattered over the face of the earth in rivers, lakes, etc., for the use of animals and vegetables. Water drawn from a river into vessels or into ponds becomes private property; but to admit of such property with respect to the river itself, con- sidered as a complex body, would be inconsistent with the public interest by putting it into the power of one man to lay waste a whole country A man who builds a mill is entitled to make an aqueduct, provided, after using the water for his mill, he restore it to the river from whence it was taken. This right he has from 11 Another English case says: "All 12 Magistrates of Linlithgow, etc., that a riparian proprietor is entitled contra Elphinstone of Cumbernauld, to is flumen aquae; but no atom of -& 001 , 0n , ,,. T -. . -,^ co , , i i L v 3 Kames. 331 (scotch). Jan. 14, 1768 the water belongs exclusively to him." Earle, C. J., in Medway Co. v. Bom- (italics ours), ney, 9 Com. B., N. S., 586. 17 Oh. 2. THE USUFRUCT. (3d ed.) 17 the law of nature without the aid of prescription. But to carry the water another way without restoring it will require forty years' possession to defend him by negative prescription against a chal- lenge by inferior heritors. "Laying, then, aside arguments from property or servitude, the principles that govern this case are as follows: A river may be considered as the common property of the whole nation, but the law declares against separate property of the whole or part. 'Et quidem naturali jure communia sunt haec: Aer, aqua profluens, et mare.' 13 A river is one subject composed of a trunk and branches. No indi- vidual can appropriate a river or any branch of it; but every indi- vidual of the nation, those especially who have land adjoining, are entitled to the use of the water for their private purposes. Hence it follows, that no man is entitled to divert the course of a river or of any of its branches ; which would be depriving others of their right, viz., the use of the water." 1 * (3d ed.) 17. American Authorities. In American cases the same doctrine is laid down. Justice Story says : 15 ' ' But, strictly speak- ing, he has no property in the water itself, but a simple use of it while it passes along." And Kent: 16 "He has no property in the water itself, but a simple usufruct while it passes along. " In a New York case: 17 "Another maxim .... is, that the owner of the bed of the stream does not own the water, but he only has a mere right to its use; he has a mere usufruct." In a Massachusetts case: "In relation to the stream itself, it is now a well-settled principle that no one, neither the riparian proprietor nor the owner of a mill, acquires or has any property in the water flowing in it, except as to that portion which he actually withdraws and holds in his own possession ; but, instead of 'this, that he has a simple usufruct of it while it passes along." 18 In a very recent New 13 1 Instit. de rerum divisione. season; that is, it was mainly an arti- 14 The case then proceeds to dis- ficial flow. See infra, sec. 53, etc. tinguish the underground "feeders" 15 Tyler v. Wilkinson, 4 Mason, 397, (percolating tributaries) as not gov- Fed. Gas. No. 14,312. erned by the above. Judgment in the 1 3 Com. Marg. 439. case was for defendant on the ground 17 Pixley v. Clark (1866), 35 N. Y. that the flow from the lakes to the 520, 91 Am. Dec. 72. river was not a constant run of water, is Pratt v. Lamson, 2 Allen but only occasional flood water in wet (Mass.), 287. Water Rights 2 18 (3d ed.) Pt. I. FIEST PRINCIPLES. 18 York case 19 it is said: "The water which flows over the lands of a person is not his property, and at most he has a mere usufruc- tuary right therein, and must so use it as to not unnecessarily and unreasonably impair its usefulness by other riparian owners. While the Deposit Electric Company may own the land on which the dam is built, and also a large portion of the lands covered by the pond, yet as was said in Sweet v. Syracuse: 20 'It is a principle recognized in the jurisprudence of every civilized people from the earliest times that no absolute property can be acquired in flowing water. Like light, air, or heat of the sun, it has none of the at- tributes commonly ascribed to property, and is not the subject of exclusive dominion and control, .... While the right to use it as it flows along in a body may become a property right, yet the water itself, the corpus of the stream, never becomes, or in the nature of things can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be ac- quired, or become the subject of transmission from one to another. Neither sovereign nor subject can acquire anything more than a mere usufructuary right therein These propositions have been often stated by jurists and in judicial decisions in different forms, but it is believed that they all concur in the same general result."' (3d ed.) 18. Western Authorities. The California court has laid this down in many cases. In the earliest case upon the subject it said: "It is laid down by our law-writers that the right of prop- erty in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use." 21 In another early case the court was very emphatic, saying: "This court has never departed from the doctrine that running water, so long as it continues to flow in its natural course, is not, and cannot be made, the subject of private ownership. A right may be acquired to its use which will be regarded and protected as property, but it has been dis- tinctly declared in several cases that this right carries with it no specific property in the water itself In regard to the water of the stream, his rights [an appropriator 's] , like those of a riparian owner, are strictly usufructuary, and the rules of law by 19 In re Delaware Eiver (1909), 131 21 Eddy v. Simpson, 3 Cal. 249, 58 App. Div. 403, 115 N. Y. Supp. 750. Am. Dec. 408. 20 129 N. Y. 335, 27 N. E. 1081, 89 N. E. 289. S 18 Ch. 2. THE USUFEUCT. (3d ed.) 19 which they are governed are perfectly well settled." 22 In an- other: "The property is not in the corpus of the water, but only in its use. ' ' M Again : "It is not necessary in this case to de- fine in detail the precise extent of the riparian right as existing in this country; it is enough to say that under settled principles, both of the civil and common law, the riparian proprietor has a usufruct in the stream as it passes over his land." 24 In Lux v. Haggin, 25 the California court elaborately reviewed the entire law of waters, and this is there laid down: "As to the nature of the right of the riparian owner in the water, by all the modern as well as ancient authorities the right in the water is usufructuary and consists not so much in the fluid itself as in its uses." In another case in that court Mr. Justice Henshaw said: "The right of a riparian proprietor in or to the waters of a stream flowing through or along his land is not a right of ownership in or to those waters, but is a usufructuary right a right, among others, to make a reasonable use of a reasonable quantity for irrigation, returning the surplus to the natural channel, that it may flow on in its accustomed mode to the land below " ; 26 and again in another it was said: "The rjghts of the riparian owner .... do not in- clude a proprietorship in the corpus of the water. His right to the water is limited to its use," etc. 27 Many other California cases, hereafter cited, lay this down, and so do the other Western courts, such as, for example, the Nebraska court, saying: "The law does not recognize a riparian property right in the corpus of the water. The riparian proprietor does not own the water. He has the right only to enjoy the advantage of a reasonable use of the stream as it flows by his land, subject to a like right belong- ing to all other riparian proprietors." 28 "The water of a stream is not the subject of ownership in the ordinary sense, but the right of property is in the right to use its flow, and not in the specific water." 1 The right of an appropriator under the Western law of prior appropriation is governed by the same principle. Nothing is more 22 Kidd v. Laird, 15 Cal. 162, 76 27 Gould v. Eaton, 117 Cal. 542, 49 Am. Dec. 472, 4 Morr. Min. Hep. 571. Pac. 577, 38 L. R. A. 181. 23 Nevada e tc. Co. v. Kidd, 37 Cal. 28 Crawford ete> Co . v> Hathaway, ,,. _ . n , 67 Neb. 325, 108 Am. St. Rep. 647. 93 24 Pope v. Kinnan, 54 Cal. 3. N w ?s , ' fi0 Tj R A ooq F 25 69 Cal. 255, 10 Pac. 674. N. W. 781, 61) L. R. A. 889. 26 Hargrave v. Cook, 108 Cal. 72, 1 29 Cyc. 334. 41 Pac. 18, 30 L. R. A. 390. 20 (3d ed.) Pt.I. FIRST PRINCIPLES. 18 firmly settled in the West than the rule that an appropriates* can have no ownership in the water, as such, in the natural stream above the head of his canal or ditch, and that his right is solely one to have the stream water flow to his ditch so that it may be used. 2 This principle of a private right in the use of the natural re- source as distinguished from the substance itself is taken from the law of "usufruct" in the Institutes, 3 and is well recognized to-day. This usufructuary right, or "water-right," is the substantial right with regard to flowing waters; is the right which is almost in- 2 Eddy v. Simpson, 3 Cal. 249, 58 Am. Dec. 408, 15 Morr. Min. Rep. 175; Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140, 4 Morr. Min. Rep. 513; Conger v. Weaver, 6 Cal. 548, 65 Am. Dec. 528, 1 Morr. Min. Rep. 594; Crandall v. Woods, 8 Cal. 136, 1 Morr. Min. Rep. 604; Hill v. King, 8 Cal. 336, 4 Morr. Min. Rep. 533; Kidd v. Laird, 15 Cal. 161, 76 Am. Dee. 472, 4 Morr. Min. Rep. 571; Heyne- man v. Blake, 19 Cal. 579 ; McDonald v. Askew, 29 Cal. 200, 1 Morr. Min. Rep. 660; Nevada etc. Co. v. Kidd, 37 Cal. 282; Hanson v. McCue, 42 Cal. 308, 10 Am. Rep. 299; Los Angeles v. Baldwin, 53 Cal. 469; Pope v. Kinman, 54 Cal. 3; Parks Canal Co. v. Hoyt, 57 Cal. 44; Lux v. Haggin, 69 Cal. 255, at p. 390, 10 Pac. 674; Swift v. Goodrich, 70 Cal. 103, 11 Pac. 561; Green v. Carotta, 72 Cal. 267, 13 Pac. 865; Riverside Co. v. Gage, 89 Cal. 410, 26 Pac. 889; Ball v. Kehl, 95 Cal. 613, 30 Pac. 780; Vernon Irr. Co. v. Los Angeles, 106 Cal. 237, 39 Pac. 762; 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; Smith v. Green, 109 Cal. 229, 41 Pac. 1022; People v. Truckee etc. Co., 116 Cal. 397, 58 Am. St. Rep. 183. 48 Pac. 374, 39 L. R. A. 581; Gould v. Eaton, 117 Cal. 542, 49 Pac. 577, 38 L. R. A. 181; Katz v. Walkin- shaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236 (Shaw, J.) ; Calkins v. Sorosis Co., 150 Cal. 431, 88 Pac. 1094; Duck- worth v. Watsonville Co., 150 Cal. 520, 89 Pac. 338; Hesperia etc. Co. v. Gardiner, 4 Cal. App. 357, 88 Pac. 286; Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320, 30 Pac. 335; Boise etc. Co. v. Stewart, 10 Idaho, 38, 77 Pac. 25, 321; Crawford Co. v. Hathaway, 67 Neb. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889; Salt Lake City v. Salt Lake etc. Co., 24 Utah, 249, 67 Pac. 672, 61 L. R. A. 648; Salt Lake City v. Salt Lake etc. Co., 25 Utah, 456, 71 Pac. 1069; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210; Pomeroy on Riparian Rights, sec. 55; Kinney on Irrigation, p. 398, supra. See, also, infra, sec. 276. "There is no absolute property in the waters of a natural watercourse or natural lake.' No right can be ac- quired to such waters except a usu- fructuary right the right to use it, or to dispose of its use for a bene- ficial purpose." Nev. Stats. 1907, p. 30, sec. 3. Unfortunately, the distinction has not always been appreciated. For ex- ample, in an overruled Colorado case it was said: "The distinction attempted to be drawn between the right to use water and the title to it is purely mythical and imaginary, and the sooner it is dropped, and the two treated as identical, the better, and less confusion will exist." Wyatt v. Lari- mer etc. Co. (1892), 1 Colo. App. 480, 29 Pac. 913. The case was overruled in 18 Colo. 298, 36 Am. St. Rep. 280, 33 Pac. 144. See, likewise, Fresno Irr. Co. v. Park, 129 Cal. 437, at 448, 62 Pac. 87, speaking of the distinction "some- times made" between the ownership of the use of the water and the owner- ship of its corpus. See, also, Stanis- laus W. Co. v. Bachman, 152 Cal. 716, 93 Pac. 858, 15 L. R. A., N. S., 359. 3 Supra, sec. 1 et seq. 19 Ch. 2. THE USUFRUCT. (3d ed.) 21 variably the subject matter over which irrigation or water power or similar contracts are made and litigation arises; and is real property. It is as fundamental under the law of riparian rights as under the law of appropriation. Under the latter the right of use lasts only while in actual application. Under the former the right of use is perpetual whether actually exercised or not; it is perpetually annexed as a privilege to the riparian freehold, to be put into actual exercise whenever its owner will, or not at all, but none the less a mere right of use, present or future, including no ownership of any drop of the water while it continues flowing naturally. (3d ed.) 19. Conclusion. The law of watercourses under whatever system (whether appropriation or riparian rights), borrowing from the civil law, is but a development of the exercise of the usufruc- tuary right, and of the severance in pursuance of it, of a portion of the water from the natural stream. The water in the stream in the natural resource itself is nobody 's property, or ' ' belongs to the public." The right may exist, in one having a right of access to it, to take of it or otherwise use it (called usufructuary) and to have it flow to him for his use. Any part taken in the fulfillment of this usufructuary right is the private property of the taker while in his possession, and it is to this last proposition that we now proceed. 20-29. (Blank numbers.) 22 (3d ed.) Pt.I. FIRST PKINCIPLES. 530,31 CHAPTER 3. WATER SEVERED FROM THE NATURAL RESOURCE AND REDUCED TO POSSESSION. 30. Introductory. 31. Severed water. 32. What acts reduce the water to possession. 33. Analogy to wild animals a "mineral ferae naturae. 1 * 34. Distinguished from percolating water Ohio Oil Co. v. Indiana. 35. Becoming personal property. 36. Same. 37. Escaped or abandoned water. 38. Recapture where abandonment not intended. 38a. Same. 39. Same. 40. Statutory regulation of recapture. 41-50. (Blank numbers.) (3d ed.) 30. The development of the law of running water carries the foregoing to its conclusion whereby the stream water which, while in the stream, is not, as a substance, the subject of prop- erty (or "belongs to the public"), finally passes into private owner- ship. This occurs when some portion of it is taken out of the natural resource, severed from the stream, and reduced to posses- sion. The specific portion of water taken ceases to be in the nega- tive community or to "belong to the public" so long (but no longer) as it is subjected to the actual possession, control and dominion of a private individual. A water-right is a usufruct in the stream, the natural resource, consisting in the right to have the water flow so that some portion of it (which portion the law limits in various ways under the system of prior appropriation or the system of riparian rights) may be reduced to possession and made the private property of an individual. (3d ed.) 31. Severed Water. In the civil law it is said: "Upon these principles, running waters are held by the Roman juris-consulti to be common to all men. But it also follows that this decision does not apply to waters, the appropriation of which (to the ex- clusion of the common enjoyment) is necessary for a certain pur- 31 Ch. 3. SEVERED WATER. (3d ed.) 23 pose, as water included in a pipe or other vessel for certain uses.'* 1 Vilnius says, in commenting on the passage in the Institutes above quoted regarding air, running water, and the sea: "First of all, these things are in their nature suited to the common -use of all ; and next, in case any of these things is such that in its nature it can be taken into possession, it belongs to the possessor so far as he does not injure the general use by such occupation." 2 And commenting upon the same passage in the Institutes a Scotch case says: "Water drawn from a, river into vessels or into ponds be- comes private property." 3 No one owns the air, but the inventor who liquefies it owns so much as is liquid in his laboratory ; it is his private property while in his possession. 4 Pothier illustrates it as follows: "One may put the case, for example, where I go to dip water from a river. I acquire the ownership of the water which I have taken, and with which I have filled my pitcher, by title of occupancy; for this water, being a thing which belonged to no person, to which no person had any exclusive right whatever, I have been able, on taking it into my possession, to acquire the ownership of it by right of capture. This is why, in case, on returning from the river, I have, for some purpose, left my pitcher standing on the road, with the intention of returning later to fetch it where I left it, if, in the meantime, a passer-by, having found my pitcher, proceeds (to save himself the trouble of going -to the river) to pour into his pitcher the water that was in mine, he has committed against me an actual theft of that water, which water was a thing of which I was actu- ally the proprietor, and of which I retained the possession through the intention I had of returning for it at the place where I left it. 1 Bowyer's Commentaries on Civil would be inconsistent with the public Law, p. 61. interest, by putting it in the power of , ,. T , . . one man to lay waste a whole coun- 2 "Prinmm commums omnium eat t Ma istra \ eg V- E ip hins tone, 3 harum rerum usus ad quam natura ^^ g^ comparatae aunt; turn siquid earum 4 g ^^ ^ authority: rerum per naturam occupari poteat, id .-T^-^ tions of this runni j the private laetur,. Quoted in son Hill, 5 Barn. & Adol. 1, 111) i^ng. Kepnnt, / A ii i fiQ'> rf California Civil Code sec ( Allem einzelne portionen von diesem ~- 0> C de sec ' Fluszwasser werden durch die occupa- tion unstrietig ein eigenthum des 3 Adding, "but to admit of such Schopfenden, und dieser kann damit property with respect to the river it- machen was er will." Gliick, corn- self, considered as a complex body, menting on Dig., lib. 1, tit. 8.) 24 (3d ed.) Pt. I. FIBST PEINCIPLES. 31 Note that the flow of the stream must not be confounded with the running water itself, which is designated aqua profluens." 5 The common law is stated in identical terms. "None can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream, and take into his possession, and that during the time of his possession only." 6 In a well-known case in the House of Lords, 7 it is said that no one can have any property in the running water of the stream " which can only be appropriated by severance, and which may be law- fully so appropriated by everyone having a right of access to it" (the riparian proprietors). Lord Campbell declared 8 that water in a cistern is private property, and in a very recent case in House of Lords the Chancellor said that water in an artificial pond is "water with somewhat of a proprietary right." 9 In a New York case it is laid down: "Water, when reduced to possession, is prop- erty, and it may be bought and sold and have a market value, but it must be in actual possession, subject to control and management. Running water in natural streams is not property, and never was." 10 The California court very clearly expressed the theory of the law when, in words similar to those of the House of Lords above quoted, 11 it said: "He does not own the corpus of the water, but incident to his riparian is the right to appropriate a certain portion of it. It is only, I think, by some species of appropria- tion that one can ever be said to have title to the corpus of the water. The right of the riparian owner is to the continuous flow with a usufructuary right to the water, provided he returns it to the stream above his lower boundary, and the right, as I have said, to make a complete appropriation of some of it." 12 The nature of the right of ownership existing in naturally run- ning water is that of having it flow, of using it, and of taking it 6 Pothier, opp. torn. 8, p. 149. water in canal the water in a canal Embrey v. Owen, 6 Ex. 353; is the sole property of the canal own- Mason v. Hill, 5 Barn. & Adol. 1, 110 ers." 5 Am. & Eng. Ency. of Law, Eng. Reprint, 692. 113. The right to take water out of 7 Lyon v. Fishmongers Co., L. E. 1 another's pond is a profit a prendre. App. Gas. 673. Angell on Watercourses, 7th ed., p. 8 Race v. Ward, 4 El. & B. 710. 245; Hill v. Lord, 48 Me. 83, dictum; 9 Lord Halsbury, in White v. but not so of the right to take water White, [1906] App. Gas. 84. from his spring. Race v. Ward, 4 El. 10 City of Syracuse v. Stacey, 169 & B. 710. Water in a pipe is a com- N. Y. 231, 62 N. E. 354. modity, and if conveyed in a pipe, H Lyon v. Fishmongers Co., supra. the pipe may belong to one person 12 Vernon Irr. Co. v. Los Angeles, and the water to another. New Jer- 106 Cal. 237, 39 Pac. 762. One gen- sey Co. v. Town of Harrison, 72 N. J. eral authority says: "Ownership of L. 194, 62 AtL 767. 32 Ch. 3. SEVEEED WATER. (3d ed.) 25 into possession by diverting it into artificial structures, ditches, reservoirs, cisterns, barrels, canals, pipes, and the like, thereby making private property of a part of it, during the time it is held in possession and control. Being naturally a member of the "nega- tive community," the law recognizes only a right to use or take of it, and to have it flow to the taker so that it may be used or taken (a usufructuary right) ; but when severed from the natural resource, so much of the substance as is actually taken is severed from the negative community and, passing under private posses- sion and control, becomes private property during the period of possession and control. The corpus of the water severed from the stream in a reservoir or other artificial structure that confines it in control is private property as a commodity; it ceases to "belong to the public" or to be without ownership, but is "water with somewhat of a proprietary right." (3d ed.) 32. What Acts Reduce the Water to Possession. The test being whether the water is reduced to actual possession, what spe- cific act may produce that effect is a question of fact in which there is latitude for difference under different circumstances. The artificial means employed are usually dams, ditches, reservoirs and other waterworks of magnitude, on the one hand, and household utensils, bottles, barrels, hogsheads and similar small and movable receptacles on the other. That the water is reduced to possession in the latter class is ob- vious. Thus Pothier 13 uses a jug to illustrate the principle, and another authority instances all "portable receptacles." 14 When the other class is considered it is not always so obvious^ and depends much upon the circumstances. Judge Field 15 thought that water in a reservoir could always be regarded as reduced to possession and as private property. Another authority said it was just as obviously so with water in a pond as with water in vessels. 16 At the same time, it has been said that building a dam across a river so as to form a reservoir is not necessarily reducing it to 13 Supra. 48, 28 L. Ed. 173; dissenting opinion; 14 Stanislaus W. Co. v. Bachman, People ex rel. Heyneman v. Blake, 19 152 Gal. 719, 93 Pae. 858, 15 L. E. A., Cal. 579. N 'i5%rii Valley W. Co. v. Schot- ^Magistrates v. Elphinstone, quoted tier, 110 U. S. 347, 4 Sup. Ct. Eep. < U P ra > see " 31 - 26 (3d ed.) Pt. I. FIRST PRINCIPLES. 33 possession, 17 and regarding the effect of a dam in a river, it is held likewise, 18 that it does not always alter the character of the water from that of "publici juris." In one case 19 it was said that build- ing a dam in a stream is reducing the water to possession. The test se-ems to be, as to a dam, whether the flow of the stream continues through the water thus spread out, or whether the flowing char- acter of the water in its natural channel is destroyed. It would seem a question of fact in each case whether the effect of the dam was simply to swell the stream, leaving it still a stream, or was to destroy the stream, and make it a private impound. 20 Likewise the effect of diverting water into a ditch might and might not be reducing it to possession, according to the size and character of the ditch and of the stream it taps. Small ditches, such as mining ditches or lateral irrigation ditches, may possibly be said fully to hold control, whereas large canals like the Erie Canal, for example, might be open to question. However, it seems the consensus of opinion that, as a general rule, water in a ditch is to be regarded as reduced to possession. 21 These are questions of fact, however, and in any event sub- ordinate to the clear rule of law; that is, the test is whether the artificial structure reduces the water to possession. (3d ed.) 33. Analogy to Wild Animals A "Mineral Ferae Natu- rae." In the negative community there is a still more familiar member, namely, animals ferae naturae; with which, also, running water has been compared (even so far as to name it accordingly a "mineral ferae naturae"), and which likewise become private prop- erty by capture. In the first place, wild animals are, by settled law, members of the negative community ; they are nobody 's property while wander- ing at large; and in the next place, running water is compared 17 City of Syracuse v. Stacey, 169 none the less the natural channel of N. Y. 231, 62 N. E. 354, 355. the South Fork, because by artificial 18 White v. White, [1906] App. Cas. means waters were accumulated and 83. spread out and covered the original 19 Conger v. Weaver, 6 Cal. 548, 65 channel." Am. Dec. 528, 1 Morr. Min. Rep. 594. 21 Infra, sec. 35. 20 In one case (County of Sierra v. "The water had been segregated by County of Nevada [1908], 155 Cal. plaintiff from the general supply, was 1, 99 Pac. 371) it is said: "The crea- impounded in his ditch, and was in- tion of the reservoir was effected by tended to be appropriated to his own blocking the channel at a point use. It was under his control and where the stream would otherwise had become his property." Shaw v. naturally flow beyond it. But it was Proffitt (Or.), 109 Pac. 584 (dictum). 33 Ch. 3. SEVERED WATEE. (3d ed.) 27 to animals ferae naturae since the days of the Roman law. In the Institutes the law of wild animals follows under the same title as that above quoted concerning aqua profluens, saying: "Likewise wild animals, birds and fishes, since before capture belonging to no one, after capture belong to him who captures them." 22 Vattel, elsewhere quoted, 23 gives together as the things of which no one claims the property, "the air, the running water, the sea, the fish and wild beasts." Vinnius, in commenting on the Institutes, 24 says fish are among the things common while in the ocean, but cease to be such the moment they are caught ; and it is also said : ' ' The fish in the sea, rivers, lakes, etc., being in their natural freedom, are things belonging to no one; fishing is a species of occupation, whereby the fisherman acquires the property in the fish he catches, and thus takes into his possession. ' ' 25 Says Blackstone: "A qualified property may also subsist with relation to animals ferae naturae, ratione impotentiae, on account of their inability [mentioning also (as well as wild birds) young birds not yet able to fly], for these cannot, through weakness, any more than the others through restraint, use their natural liberty and forsake him The qualified property which we have hitherto considered extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property; it may subsist in the very elements of fire and light, of air and of water." * Following the particles of the liquid from the stream into a reservoir or other structure in which they have been confined, there 22 Inst. Just., lib. II, tit. 1, see. 23 Infra, sec. 1025. 12. "Ferae igitur bestiae et volucres 24 2 Inst., tit. 1, sec. 1. et pisces, id est omnia animalia, quae 25 Pothier, Traite du Droit de in terra, mari, caelo nascuntur, sim- Proprie'te. Opera, torn. 8, p. 137. ulatque ab aliquo capta fuerint, iure The passage continues to say that gentium statim illius esse incipiunt; fishing in non-navigable rivers is quod enim ante nullius est, id natu- not really larceny, though treated as rali ratione occupantis conceditur. such, but "Regarding fish in a reser- Nec interest, feras bestias et volucres voir, these are sub manu, and in the utrum in suo fundo quisque capiat, an possession of him who is guarding in alieno ; plane qui in alienum them,- who may permit their capture fundum ingreditur venandi aut aucu- as he sees fit; and there can be no pandi gratia, potest a domino, si is doubt whatever that one who fishes providerit, prohiberi ne ingrediatur. there without his consent commits an Quiquid autem eorum ceperis, eo usque actual larceny against the man to tuum esse intelligitur, donee tua cus- whom these fish belong." See The todia coercetur ; cum vero evaserit cus- Case of Swans, 7 Coke Rep. 15b, 77 todiam tuam et in naturalem liberta- Eng. Reprint, 435. tern se receperit, tuum esse desinit et 1 II Blackstone's Commentaries, rursus occupantis fit." 395. 28 (3d ed.) Pt. I. FIRST PRINCIPLES. 33 then has come a change in the "wandering" of the liquid that has been so taken. It is like the change regarding wild birds caught in a snare, wild animals caged, fish caught in nets. Before capture, none of these is regarded as property, real or personal; being wandering, ownerless things; while wandering at large they are nobody's property; but after capture, they become the private property of the taker. While swimming in the stream the fish in the water are no more the subject of private ownership than the water they swim in, and (though one may own the usufructuary right of fishing) nobody owns the fish themselves; 2 but the fisher- man owns them when caught in a net. 3 So the particles of water that have passed into private control in a reservoir, ditch, or other waterworks or artificial structure that holds the water confined have been taken from their natural haunts, so to speak, and cap- tured. This comparison was made in the following words by Judge Field with regard to the water in the reservoirs of the Spring Valley Water Company, which supplies San Francisco. After saying that water collected by individual agency in hogsheads, barrels or reservoirs "is as much private property as anything else that is reduced to possession, which otherwise would be lost to the uses of man," he proceeds: "Indeed, it is a general principle of law, both natural and positive, that where a subject, animate or inanimate, which otherwise could not be brought under the control or use of man, is reduced to such control or use by in- dividual labor, a right of property in it is acquired by such labor. The wild bird in the air belongs to no one, but when the fowler brings it to the earth and takes it into his possession, it is his property. He has reduced it to his control by his own labor, and the law of nature and the law of society recognize his exclusive right to it. The pearl at the bottom of the sea belongs to no one, but the diver who enters the water and brings it to light has property in the gem. He has, by his own labor, reduced it to pos- session, and. in all communities and by all law his right to it is recognized. So the trapper on the plains and the hunter in the north have a property in the furs they have gathered, though the animals from which they were taken roamed at large and belonged 2 People v. Truckee etc. Co., 116 Maier, 103 Cal. 476, 42 Am. St. Cal. 397, 58 Am. St. Rep. 183, 48 Rep. 129, 37 Pac. 402. T QT/ on T T> A KCI T? 3 Young v. Hichens, 6 Q. B. 606, Pac. 374, 39 L. R. A. 581; Ex parte 33 Ch. 3. SEVERED WATER. (3d ed.) 29 to no one. They have added by their labor to the uses of man an article promoting his comfort which, without that labor, would have been lost to him. They have a right, therefore, to the furs, and every court in Christendom would maintain it. So when the fisherman drags by his net fish from the sea, he has a property in them, of which no one is permitted to despoil him." .And he applies this to the water brought to a city by a water company. 4 Chancellor Kent says: "The elements of air, light, and water are the subjects of qualified property by occupancy, ' ' and then, in the same paragraph, proceeds to the law of wild animals, as based on the same principle. 6 The leading authority in the common law for this comparison is Blackstone, who says: "But, after all, there are some -few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common ; being such wherein nothing but an usufructuary property is capable of being had; and, therefore, they belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences; such also, are the generality of those animals which are said to be ferae naturae, or of a wild untamable disposition, which any man may seize upon and keep for his own use or pleas- ure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterward." 6 To avoid misunderstanding, it must be well noted that this pas- sage distinguishes the corpus of water from the usufructuary in the stream, and that when Blackstone here says that every man 4 Spring Valley W. W. v. Schot- In a recent California case Mr. tier, 110 U. S. 347, 4 Sup. Ct. Rep. Justice Angellotti describes the 48, 28 L. Ed., at p. 183. Field, J., rights of a water company as "tights arguendo in a dissenting opinion. necessary to secure the absolute own- Cf. the opinion of Sanderson, J., ership of the water caught and im- also dissenting, in Nevada County pounded." Contra Costa Water Co. etc. Co. v. Kidd, 37 Cal. 326, say- v. Oakland (Cal. Sup.), Jan. 19, 1911, ing: "By his diversion .... he con- 113 Pac. 668. verts it into a species of merchandise 5 Kent , 8 Commentaries part 5 c . which he garners in his ditches and 05 ^ 047 reservoirs which he conveys to mar- ket, and measures out, and sells for 6 Blackstone's Commentaries, Bk. a price." II, P- 14- See, also, pp. 18, 395. 30 (3d ed.) Pt. I. FIEST PEINCIPLES. 34 has an equal right to seize and enjoy, he is referring to the par- ticles or drops, which no man can trace or identify as having been formerly in his possession, and which consequently he can lay no claim to because of such former possession. Instead, anyone to whom the escaped or abandoned particles come may seize and use them in the same manner as any other particles, and under the same considerations as govern his right to such other. The es- caped or abandoned particles pass under any usufruct that may exist in the stream they have mixed with, be the owners of that usufruct who they may, and without, for the present purpose, specifying who the owners of the usufruct may be. The state- ment applies only to the corpus of the water (the ownership of the usufruct has been evolved into the law of riparian rights, or in the West, into the law of appropriation), and shows how the corpus is not the subject of property while flowing naturally, is private property during capture, and again ceases to be property when possession ceases (property in the corpus being lost by escape of the water or its abandonment, whereupon the particles again cease to be his property, and are again nobody's property, completing the cycle). 7 (3d ed.) 34. Distinguished from Percolating Water Ohio Oil Co. v. Indiana. This analogy of running water to animals ferae naturae does not, of course, exist, to the same extent, to percolating water, because in Acton v. Blundell 8 a distinction was made between the two. A different rule of ownership (the cujus est solum doctrine) was applied to percolating water, whereby, even in its natural state, it is the private property (real property) of the landowner in whose land it exists. This is the great difference in the atti- tude of the law toward percolating water and the running water of streams. "There is only one case in law in which water in its natural state is the subject of ownership, and that is the case of percolating water. A man is regarded as owning the percolating water while it is in the land. But other water in its natural state is subject only to the use of the man through whose land it flows. He has a right to its use but is not regarded as having the title. ' ' 9 There is to-day, however, a tendency to give up the rule of Acton 7 See Pardessus, Trait6 des Servi- 8 12 Mees. & W. 324, 13 L. J. Ex. tudes, vol. I, p. 174. 289. Goodwin on Real Property, p. 2. 34 Ch. 3. SEVEEED WATER. (3d ed.) 31 v. Blundell, and to abandon the difference, 10 and thus to class all water, percolating as well as running, as a "mineral ferae naturae." Some authorities thus merging the different kinds of water are stated and reviewed by the supreme court of the United States in Ohio Oil Co. v> Indiana. 11 This is, of course, a funda- mental departure as regards percolating water, and the court did not go the whole length of putting it absolutely, like running water, into the "negative community." The cujus est solum doctrine withheld the court somewhat, and it said the analogy as to percolat- ing water is not complete. In reading this opinion, it must be borne in mind that the court's hesitation has reference solely to percolating water, concerning which the analogy is a very recent departure or "new rule," and involves the rejection of Acton v. Blundell. The case dealt with natural gas, to which the court also tenta- tively applied the principle, speaking of percolating water only as an analogy, classing natural gas, oil and percolating water together as "minerals ferae naturae"; but with some hesitation induced by the cujus est solum doctrine which has hitherto applied to them, in contrast to running water. Mr. Justice White, deliv- ering the opinion, said these have no fixed situs, but on the con- trary, have the power, as it were, of self-transmission and are of a peculiar character. He recognizes that the cujus est solum doctrine makes them the landowner's property, and yet says that cannot absolutely be, but that property can be based in them only when subject to control in a well, for example. When they escape or come under another's control, the title of the former is gone. He quotes with approval a Pennsylvania case 12 w r herein it is said that while these things are minerals, they are minerals with peculiar attributes. "Water, also, is a mineral, but the decisions in ordinary cases of mining rights, etc., have never been held as unqualified precedents in regard to flowing or even percolating water. 13 Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals 10 For the recent cases, see infra, (1906), 204 U. S. 316, 27 Sup. Ct. sec 1066 Rep. 289, 51 L. Ed. 499. 11 177 U. S. 190, 20 Sup. Ct. Rep. " Wertmordand C >4% ? Pft 576, 44 L. Ed. 729. 20 Morr. Min. 130 Pa. 235, 18 Atl. 724, 5 L. R. A. Rep. 466. See. also, Geer v. Connect!- *- cut, 161 U. S. 519, 16 Sup. Ct. Rep. , . The distinction between the two 600 40 L Ed. 793; Bacon v. Walker kmd s of water is thus noted, but not followed up. 32 (3d ed.) Pt. I. FIKST PRINCIPLES. 34 ferae naturae. In common with animals, and unlike other min- erals, they have the power and the tendency to escape without the volition of the owner. Their fugitive and wandering existence within the limits of a particular tract is uncertain," etc. Other cases are cited in which the phrase ' ' minerals ferae naturae ' ' is used. Only when reduced to actual possession do they become the sub- ject of ownership, but then are, like any other property, the sub- ject of ordinary commerce. 14 Mr. Justice White says the land- owner has the right on his land to bore wells and otherwise seek to acquire these things, but that "until these substances are ac- tually reduced by him to possession, he has no title whatever to them as owner," and uses the expression that "things which are ferae naturae belong to the 'negative community.' ' Proceed- ing to a conclusion, however, regarding natural gas, with which the case dealt, he cannot consider the analogy complete. This is because of the conflict with the cujus est solum doctrine, which he was not ready to. reject entirely, and, because, if the analogy to the negative community were absolute, he saw no way to exclude the public from taking them as well as the landowners. It is not our object here to enter this discussion as to natural gas, oil, or even percolating water, as we consider the last separately in another place. 15 We have shown the settled view of the law toward running water (aqua profluens). We would also mention with regard to Mr. Justice White's two grounds of hesitation, that as to the first, the cujus est solum doctrine not only never has any bearing as to running water, but is being in contemporary cases rejected also as to percolating water; 16 while as to the second, the general public is excluded (at common law) from the use of running water for the reason that, while its corpus is owned by no one, the taking thereof is confined to riparian proprietors because they, as the owners of the inclosing lands, alone have access to it (the lack of access excluding all nonriparian owners) ; following which all riparian proprietors, having equally the right of access, must exer- cise the resulting usufruct reasonably, with due regard to the rights of their neighbors on the stream. 17 Since the above was published, 14 Citing State ex rel. Corwin v. L. B. A. 443, 17 Morr. Min. Hep. Indiana etc. Co., 120 Ind. 575, 22 481 - N. E. 778, 6 L. E. A. 579; People's * nfra > sec : 110 et *?* , , , 16 See recent cases collected infra, Gas Co. v. Tyner, 131 Ind. 277, 31 sec- 1066< Am. St. Eep. 433, 31 N. E. 59, 16 17 Infra, sec. 692 et seq. 35 Ch. 3. SEVERED WATER. (3d ed.) 33 the California court has adopted this as the basis of its new law of percolating water also. 18 From Ohio Oil Co. v. Indiana, the term "mineral ferae naturae" is passing into the text-books. For example, "Water, oil, and still more strongly gas, may be classed by themselves, and have been not inaptly termed minerals ferae naturae. ' ' 19 (3d ed.) 35. Becoming Personal Property. The analogy to animals ferae naturae is finally shown by the authorities establishing that water reduced to possession is personal property. Just as wild animals, by capture becoming private property, are personalty, so likewise running water, severed from its natural wandering, and confined under private control in a reservoir, or other works of man that reduce it to possession, is also personal property. The individual particles of water so impressed by diversion into an artificial structure or waterworks that confine it, and become private property, possess none of the characteristics of immova- bility that go with ideas of real estate; they are still always mov- ing though privately possessed, having, as particles, the char- acteristics of personal property. The analogy to caged animals, snared birds, or fish in a net shows well the point of view ; and the particles in the reservoir or other artificial structure that reduces it to possession, now private property, are personalty. This is the law as laid down by Justice Stephen Field. 20 "Water, when col- lected in reservoirs or pipes, and thus separated from the original source of supply, is personal property, and is as much the subject of sale an article of commerce as ordinary goods and merchan- dise." This was said of the water in the same Spring Valley reservoirs as those involved in the Schottler case. It was neces- sary to decide whether the Spring Valley Company, supplying San Francisco with water, was within a statute authorizing the formation of a corporation for trade or commerce, and it was held 18 Hudson v. Daily, 156 Cal. 617, 6 Gal. App. 233, 91 Pac. 811; Huber 105 Pac. 748, quoted infra, sec. 1055. v. Merkel, 117 Wis. 355, 98 Am. St. 19 21 Am. & Eng. Ency. of Law, Rep. 933, 94 N. W. 354, 62 L. R. A. 417. See, also, 27 Cyc. 534; Kerr on 589. Real Property, sec. 111. See, also, 20 People ex rel. Heyneman v. Charon v. Clark, 50 Wash. 191, 126 Blake, 19 Cal. 579, cited by him with Am. St. Rep. 896, 96 Pac. 1040, 17 approval in the Schottler opinion, it. R. A., N. S., 647 ; Ex parte Elam, quoted, sec. 33, note 4, supra. Water Rights 3 34 (3d ed.) Pt. I. FIRST PRINCIPLES. 35 that it was. In another California case 21 it was in effect held that where the corpus of water in a pipe is involved as distinguished from' a "water-right" or usu'fruct in a stream, a justice of the peace has jurisdiction, saying: "It has several times been held that water diverted from a natural stream into ditches and reser- voirs is, when so contained in said reservoirs, the personal prop- erty and not the real estate of the owners thereof." In a Utah case holding the water in a ditch or pipe taxable as personal prop- erty, it is said: "Water in the pipes of a distributing system is personal property. The ownership is in the water itself. " 22 A late New Mexico case, holding water confined in a reservoir to be per- sonal property, says: "Water once reduced to possession and con- trol may be the subject of purchase and sale, or of larceny ; and it makes no difference in that respect whether the captured fluid is held in a skin or cask by an itinerant water vender, or in the pipes of a modern aqueduct company. ' ' ^ The water so taken into an artificial appliance is the subject of larceny at common law, as personal property. 24 There is some latitude for discussion as to what acts reduce the water to possession as a fact. 25 But when severed from the stream and actually reduced to possession, the specific portion so held at any given moment is personal property, and this 'is stated in numerous other authorities, some of which are given in the note. 26 21 Hesperia etc. Co. v. Gardiner, 4 "It is urged that an appropriate r Cal. App. 357, 88 Pac. 286. The of water does not become the owner supreme court denied a rehearing. of the very body of water as his per- 22 Bear Lake Co. v. Ogden, 8 Utah, sonal property, until he has acquired 494, 33 Pac. 135. the control of it in conduits or reser- 23 Mr. Justice Abbott in Hagerman voirs of his own. The proposition as etc. Co. v. McMurray (N. M.), 113 stated is undoubtedly correct," etc. Pac. 823, referring to the second edi- Beatty, C. J., in Riverside Co. v. Gage, tion of this book. See, also, Turley 89 Cal. 418, 26 Pac. 889. v. Furman (N. M.), 114 Pac. 278. In one case it is said that there 24 Ferens v. O'Brien, 11 Q. B. D. is a plain and substantial difference 21. This is enacted in California between water in a ditch or reservoir Penal Code, section 499. and water in a natural stream, and Wild animals are not property in a says, regarding the former, that, natural state, and not the subject of "being in defendant's possession and larceny; but when brought into pos- under his control, had become his session by being caught in a trap, personal property." Ball v. Kehl, 95 they are then the subject of larceny Cal. 613, 30 Pac. 780. as chattels. 25 Cyc. 17, article "Lar- "For the purpose of this decision, ceny," by Professor J. H. Beale. it may be admitted that water ac- See 1 Hale's Pleas of Crown, 511. quired by appropriation (to be solrl 25 Supra, sec. 32. to miners and others) by means of 26 In addition to the foregoing, we a ditch leading from a natural stream, add the following cases where the becomes, after it passes into the ditch, principle was, enunciated obiter: the personal property of the appro- 36 Ch. 3. SEVERED WATER. (3d ed.) 35 (3d ed.) 36. Same. The origin of this rule (deduced from the funda- mental civil-law principle of the "negative community" that the corpus of the water in a natural stream is not property, real or personal, in any sense of the word), excludes the common-law maxim, "Cujus est solum ejus est usque ad caelum," from any application to the water of running streams. In dealing with the question of when water becomes personalty, a common argument is to overlook this starting point, and, failing to distinguish between the water and the water-right, to regard the stream water as itself real property under the cujus est solum doctrine. An argument is then started from a proposition that the particles are realty, and the transition is regarded as one from the particles as realty to personalty by severance from the freehold, like fixtures or emblements; when in truth it is the transition from not property (neither real nor personal) to private property, by severance from the natural stream; between particles wandering "wild" and particles "captured" by diversion and under private possession and control. The "cujus est solum" argument, among other things, would apply to running streams the ideas upon which the law of percolating water rests, for the corpus of naturally percolating water is property real property as part of the soil under the maxim, "Cujus est solum ejus est usque ad caelum." Not so, however, the flowing water in a natural stream as a natural resource, the corpus of which is never property, real or personal, while in the stream. The foundation of the law of watercourses, on the one hand, and of the law of percolating water on the other, is entirely different, owing to the very fact that the "cujus est solum" maxim does not apply to the water of a natural water- priator. Nevertheless, although such from its original channel and con- appropriator may be entitled to the veyed elsewhere in pipes for distribu- flow of all the stream undiminished, tion and sale, it loses its original char- the water in the stream above his acter and becomes personal prop- ditch is not his personal property. erty." Dunsmuir v. Port Angeles .... The appropriator certainly does Co., 24 Wash. 114, 63 Pac. 1095. not become the owner of the very "When water has been separated body of the water until he has ac- from the stream and stored where it quired control of it in conduits or can be controlled by the owner, it reservoirs created by art or applied becomes personal property." Farn- to the purpose of leading or storing ham on Waters, 462. water by artificial means." Parks See, also, Helena W. W. v. Settles, Canal Co. v. Hoyt, 57 Cal. 44. 37 Mont. 237, 95 Pac. 838. . "After it has been diverted 36 (3d ed.) Pt. I. FIRST PEINCIPLES. 37 course. 27 The cujus est solum doctrine has no bearing upon the point. 1 Aside from this importance of the matter in illustrating the theory of the law of streams, however, it would be unfortunate if much stress were laid upon it in practice. It is the continuance of the natural supply, the flow and use of the natural resource, which alone is entitled to much attention. The true force of the foregoing lies in showing that to decide cases upon the basis of private property rights in running water as a substance must usually be improper ; controversies must, as a rule, be decided with reference to the usufruct of the natural resource and not the corpus of the water itself. 2 (3d ed.) - 37. Escaped or Abandoned Water. The water taken into an artificial structure and reduced to possession is private property during the period of possession. When possession of the actual water or corpus has been relinquished or lost, by overflow or dis- charge after use, property in it ceases; the water becomes again nobody's property and re-enters the negative community, or "be- longs to the public," just as it was before being taken into the ditch. 3 It has no earmarks to enable its former possessor to follow 27 Acton v. Blundell, 12 Mees. & sumer in a portable receptacle, reason- W. 324, 13 L. J. Ex. 289, in estab* ing upon the cujus est solum ground, lishing the law of percolating water, The point was not actually involved said that percolating water "is not in the case, however j and since then to be governed by the law which ap- the case has been doubted in Leavitt plies to rivers and flowing streams, v. Lassen Irr. Co., 157 Cal. 82, 106 but that it rather falls within that Pac. 404 (see infra, sees. 1324, 1325), principle which gives to the owner of and seems clearly no longer to retain the soil all that lies beneath his sur- the approval, so far as concerns the face." present matter, of the distinguished i An example where the "cujus est jurist who wrote the opinion, solum" reasoning is inadvertently 2 Kidd v. Laird, 15 Cal. 161, 76 made use of, appears in a recent case Am. Dec. 472, 4 Morr. Min. Eep. 571. (Stanislaus W. Co. v. Bachman, 152 Discussing the distinction between Cal.* 717, 93 Pac. 858, 15 L. E. A., the right of use and the water itself, N. S., 359). Expressions are used Mr. Justice Ailshie, in Idaho, in that the water of running streams is concurring opinion, says: "Indeed, it on the same footing as percolating can be of no consequence to the State water; that running water is not dif- as to where the property right in the ferent from other material substances waters is vested, so long as the people composing a part of the earth; that have reserved to themselves the right the particles of water of a natural to regulate the use." Hard v. Boise stream are real property; and the etc. Co., 9 Idaho, 589, 76 Pac. 331, at opinion concludes that water does not 334, 65 L. E. A. 407. See Part VII become personalty on severance from of this book regarding regulation of the natural resource and reduction to distribution of water to public uses, possession, but only when lifted off 8 Supra, sec. 2. the ground and delivered to some con- 38 Ch. 3. SEVEEED WATEB. (3d ed.) 37 it and say it is his. The specific water so discharged or escaped is abandoned ; not an abandonment of a water-right, but an abandon- ment of specific portions of water, viz., the very particles that are discharged or have escaped from control. 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 without intent to recapture, the waste is abandoned, and the owner of the. water-right no longer has any claim upon it. 4 If it finds its way by natural channels into another creek, he cannot go there and reclaim it as against other appropriators there who make use of it. 5 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. 8 In one case it is said: 7 "The water from the tunnel finds its way to the stream and has become a part thereof. It inures to the benefit of all taking water therefrom. In this particular water the claimants have no interest or right which will permit them to segregate a volume of water equal to that flowing from the tunnel, even if it be an actual in- crease, and assert an exclusive right thereto as against others diverting water from the stream. ' ' 8 (3d ed.) 38. Recapture Where Abandonment not Intended. But there is an exception to this. If the discharge or escape from the ditch or tunnel or reservoir or other structure is made not because it is waste, but for convenience in handling it, intending at the time to recapture it at some lower point, it is not abandoned, for abandonment is always a question of intention. In such case, if the water enters a stream, where such . intention to retain owner- ship of the artificial increment exists, the water may be reclaimed from the stream by its producer. The usufructuary right of the stream claimants below extends only to the natural flow of the stream, the specific waters of which are nobody's property; while 4 Dougherty v. Creary, 30 Cal. 290, 175; Schulz v. Sweeney, 19 Nev. 359, 89 Am Dec. 116, 1 Morr. Min. Rep. 3 Am. St. Rep, 888, 11 Pac. 253. 35; Davis v. Gale, 32 Cal. 26, 91 Am. 6 McKinney v. Smith, 21 Cal. 374, Dec. 554, 4 Morr. Min. Rep. 604; 1 Morr. Min. Rep. 650. Colorado etc. Co. v. Rocky Ford etc. 7 Farmers' etc. Co. v. Rio Grande Co., 3 Colo. App. 545, 34 Pac. 580; etc. Co., 37 Colo. 512, 86 Pac. 1042. Farmers' etc. Co. v. Rio Grande etc. 8 Citing La Jara Creamery & Live- Co., 37 Colo. 512, 86 Pac. 1042. stock Assn. v. Hanson, 35 Colo. 105, 5 Eddy v. Simpson, 3 Cal. 249, 58 83 Pac. 644. Am. Dec. 408, 15 Morr. Min. Rep. 38 (3d ed.) Pt.I. FIKST PEINCIPLES. 38 the property right in the water itself extends, free of such usufruct in others, to whatever liquid or artificial increment has, without intent to abandon, been artificially added, produced or introduced into the channel by the labor of man. Such increment belongs to the man whose labor produced it or brought it there when naturally it would not have existed there; having become his property by artificial development and brought under his possession and con- trol or ' ' captured, ' ' it may, in such a case, be ' ' recaptured, ' ' to use an expression of Judge Field's. Water can be discharged into a stream as a link in a ditch line and taken out again, though there are prior appropriators or existing riparian owners on the same stream. A stream may be used to carry stored water. It is not abandoned where there is an intent to recapture it. 9 9 California. Hoffman v. Stone, 7 Cal. 46, 4 Morr. Min. Rep. 520; Butte etc. Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769, 4 Morr. Min. Rep. 552; Burnett v. Whiteside, 15 Cal. 35; Weaver v. Eureka L. Co., 15 Cal. 274, 1" Morr. Min. Rep. 642 ; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554, 4 Morr. Min. Rep. 604; Richardson v. KierJ 37 Cal. 263; Wilcox v. Hausch, 64 Cal. 461, 3 Pac. 108; Creighton v. Kaweah Co., 67 Cal. 222, 7 Pac. 658; Paige v. Rocky Ford Co., 83 Cal. 84, 21 Pac. 1102, 23 Pac. 875; Wiggins v. Muscupiabe Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. R. A. 667; Mayberry v. Alhambra etc. Co., 125 Cal. 444, 54 Pac. 530, 58 Pac. 68; Churchill v. Rose, 136 Cal. 576, 69 Pac. 416; Lower Tule etc. Co. v. Angiola etc. Co., 149 Cal. 496, 86 Pac. 1081; Wutchumna W. Co. v. Pogue, 151 Cal. 105, 90 Pac. 362; Pomona W. Co. v. San Antonio W. Co., 152 Cal. 618, 93 Pac. 881. See Evans D. Co. v. Lakeside D. Co., 13 Cal. App. 119, 108 Pac. 1027; Civ. Code, sec. 1413. Colorado. Platte etc. Co. v. Buck- ers etc. Co., 25 Colo. 77, 53 Pac. 334; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Buckers etc. Co. v. Farmers' etc. Co., 31 Colo. 62, 72 Pae. 49; Ripley v. Park etc. Co,, 40 Colo. 129, 90 Pac. 75. See Hackett v. Larimer etc. Co. (Colo.), 109 Pac. 965. See statutes infra, sec. 40. Idaho. Parke v. Boulware, 7 Idaho, 490, 63 Pac. 1045; Malad etc. Co. v. Campbell, 2 Idaho, 411, 18 Pac. 52. See statutes, infra, sec. 40. Montana. Beaverhead etc. Co. v. Dillon etc. Co., 34 Mont. 135, 85 Pac. 880; Smith v. Duff, 39 Mont. 382, 133 Am. St. Rep. 587, 102 Pac. 984; Kelly v. Hynes (Mont.), 108 Pac. 785. See Civ. Code, sec. 1883. Nebraska. See statutes cited infra, sec. 40. In Cobbey's Ann. Stats, (sec. 6752, Laws 1889, c. 68, p. 504, sec. 6, and Laws 1895, c. 40, p. 378, sec. 3) it is, however, prohibited on streams less than one hundred feet in width. Nevada. Schulz v. Sweeney, 19 Nev. 359, 3 Am. St. Rep. 888, 11 Pac. 253. New Mexico. Laws 1907, p. 71, sec. 60. Oklahoma. Stats. 1905, p. 274, sec. Oregon. Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 Pac. 9; McCall v. Porter, 42 Or. 56, 70 Pac. 822, 71 Pac. 976; Hough v. Por- ter (1908), 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. See statutes, infra, sec. 40. South Dakota. Stats. 1905, p. 201, sec. 4; Stats. 1907, c. 180, sec. 4. Utah. Fuller v. Sharp, 33 Utah, 431, 94 Pac. 817; Herriman etc. Co. v. Keel, 25 Utah, 96, 69 Pac. 719; Herriman etc. Co. v. Butterfield Min. etc. Co., 19 Utah, 453, 57 Pac. 537, 51 L. R. A. 930. Enacted in Stats. 1911, c. 43,- p. 60, amending Comp. Laws, 1907, sec. 1288x25. Washington. Miller v. Wheeler (1909), 54 Wash. 429, 103 Pac. 641, 38 Ch. 3. SEVERED WATER. (3d ed.) 39 In a very early California case Mr. Justice Stephen Field, deliv- ering the opinion of the court, said: "In the case at bar the channel of the south fork of Jackson Creek is used as a connect- ing link between the Amador County canal and the ditch of the defendants. The water from the canal is emptied into the fork with no intention of abandoning its use, but for the sole pur- pose 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 wheat and corn the quantity to be taken by each owner must be a matter of evi- dence. The courts do not, however, refuse the consideration of such subjects, because of the complicated and embarrassing char- acter of the questions to which they give rise. If exact justice can- not be obtained, an approximation to it must be sought, care being taken that no injury is done to the innocent party. 10 The burden of proof rests with the party causing the mixture. 11 He must show clearly to what portion he is entitled. He can claim only such portion as is established by decisive proof. The enforcement of his right must leave the opposite party in the use of the full quan- tity to which he was originally entitled. ' ' 12 The party recaptur- ing the water must make and deduct from the amount to be re- captured due allowance for seepage and evaporation, 13 and must take due care not to abstract or impair any natural tributaries, 14 even if those tributaries consist only of percolating water. 15 23 L. R. A., N. S., 1065; Laws 1907, Pac. 49; Smith v. Duff (1909), 39 c. 222, p. 285. Mont. 382, 133 Am. St. Rep. 587, 102 Miscellaneous. See Elliot v. Fitch- Pac. 984. burg Rj\, 10 Cush. (Mass.) 193, 57 But see Miller v. Wheeler (1909), Am. Dec. 85; Whittier v. Cocheco Co., 54 Wash. 429, 103 Pac. 641, 23 L. R. 9 N. H. 454, 32 Am. Dec. 382 ; Society A., N. S., 1065, semble contra, as to etc. T. Morris Canal Co., Saxt. (1 burden of proof. N. J. Eq. 830) 157, 21 Am. Dec. 41. 12 Butte C. & D. Co. v. Vaughn, 10 Accord, Burnett v. Whitesides, n c a i 14 3 > 70 Am. Dec. 769, 4 Morr. 15 Cal. 35. Min. Rep. 552. 11 Accord Burnett v. Whitesicles 15 u Herriman etc CQ Butterfield Cal. 35; Wilcox v. Hausch 64 Cal. Min iVQ? T V^L ST? ^ci SPT' 51 L - R ' A - 93 ; Miller v - Wh eeler Keel, 25 Utah, 96, 69 Pac 719; Her- ( ^ Wagh ' 429 1Q3 p ac 641 riman etc. Co. v. Butterfield Mm. oq T R A -vr q 1ftfi ',r etc. Co., 19 Utah, 453, 57 Pac. 537, * '' ^ V^' 51 L. R. A. 930, the latter holding * Miller v. Wheeler, supra. that seepage and evaporation must be * 5 Smith v. Duff (1909), 39 Mont. deducted. See, also, Buckers etc. Co. 382, 133 Am. St. Rep. 587, 102 Pac. v. Farmers' etc. Co., 31 Colo. 62, 72 984. 40 (3d ed.) Pt.I. FIRST PRINCIPLES. 38 The intention not to abandon the water turns the stream chan- nel into a mere means of conveyance. 16 In one case the increment to the stream consisted of waste water .seeping into it from irri- gation. The court found (a matter possibly questionable on the facts recited) that this water it had always been the intention of the irrigator, from whose land it seeped, to recapture from the stream and put to his own use; and held that he consequently could sell to another the same right to withdraw from the stream the flow equivalent to the seepage, which sale would prevail against existing claimants on the stream. 17 Water may be " developed ' * by a tunnel distant from and unconnected with the stream and allowed to flow from the tunnel into the stream, and where the facts show this . to be new and foreign water which would not naturally have formed part of the stream, the tunnel owner, if he so intends at the time he caused this increment, may reclaim it from the stream. 18 Water may be drained from a mine and emptied into a stream with the intent to recapture it at some other point, and a decree settling rights upon the stream rendered 16 Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 Pac. 9. 17 The court said (Miller v. Wheeler (1909), 54 Wash. 429, 103 Pac. 641, 23 L., R. A., N. S., 1065) : "Having decided that there was some flow, that this was increased by the energy and expenditure of appellants, and that the increase was not aban- doned, the case will be remanded to the lower court to find the amount of the original flow from the springs on Wheeler Hill, the amount this flow has been increased by artificial means, and the amount of depreciation from natural waste and evaporation of the added flow in passing from Wheeler Hill to the Miller headgate; and that it then decree that the amount so found be allowed to pass the head- gate for use on the lands of Wheeler and his grantees in the valley below." But an increment due to more eco- nomical structures is not an artificial increase such as to take it out of a contract to supply from the natural flow. Evans v. Prosser etc. Co. (Wash.), 113 Pac. 271. is Mayberry v. Alhambra etc. Co., 125 Cal. 444, 54 Pac. 530, 58 Pac. 68, saying: "The right to the artifi- cial increment is quite distinct from the title to the natural flow, and the owner thereof may reclaim it from the channel." Accord, Buckers etc. Co. v. Farmers' etc. Co., 31 Colo. 62, 72 Pac. 49. See Farmers' Union etc. Co. v. Rio Grande etc. Co., 37 Colo. 512, 86 Pac. 1042. In one case it is said: "The court found, in effect, that the subterranean water diverted and carried down the canyon in said pipe- line and by that means mingled with the natural surface flow and turned into the defendants' ditch at the Crafton dam, did not constitute any part of the subterranean waters which would naturally flow to and feed the plaintiff's source of supply, and that the interference with natural condi- tions did not operate to diminish plaintiff's supply. If this is true, the diversion by means of the pipe- line would cause no damage to plaintiff." Mentone Co. v. Redlands Co., 155 Cal. 323, 100 Pae. 1082, 22 L. R. A., N. S., 382, 17 Ann. Gas. 1222. 38a Ch. 3. SEVERED WATEE. (3d ed.) 41 previously does not prevent the recapture of the mine water for irrigation. 19 . The matter is frequently covered by statute. 20 (3d ed.) 38a. Same. While the new water in the cases heretofore considered was usually transported to the stream from a distant source, such as from another stream in another watershed, yet the same principle applies where the increment is not so transported, but is caused to exist solely by salvage works in the stream itself, provided those works are done with the express intention of availing oneself of the increased flow. Thus, it was applied in one case, 21 where the increment was introduced by merely clearing out a choked channel; or by other artificial means; 22 or by enlarging flow of springs ; 23 or by providing an artificial channel to save seepage and evaporation. 24 A recent case furnished an excellent illustration. In Pomona W. Co. v. San Antonio W. Co., 25 the stream for two and one-half miles was a losing stream, diminishing nineteen per cent by seepage and evaporation before reaching plaintiff. Defendant saved this loss by providing a pipe-line to carry the stream over those two and one-half miles, and also, in the bed of the creek thus left dry, placed another pipe-line in which 25-50 inches of water accumulated. 1 The court says that the defendant thus de- livers to plaintiff below all the water which plaintiff would get and be entitled to if the stream continued to flow naturally; and the water in the pipes in excess of the natural flow is new, rescued, developed, or salvage water. The court lays stress upon the fact that the presence of the new water is due entirely to the agency of the defendants, and holds that the amount thereof must be de- 19 Ripley v. Park etc. Co., 40 Colo. Co., 34 Mont. 135, 85 Pac. 880; Kelly 129, 90 Pac. 75. v. Hynes (Mont.), 108 Pac. 785. 20 Infra, sec. 40. The California 23 Churchill v. Rose, 136 Cal. 576, 69 Civil Code enacts, section 1413: "The Pac. 416. water appropriated may be turned 24 Pomona W. Co. v. Sau Antonio into the channel of another stream W; Co., 152 Cal. 618, 93 Pac. 88,1; and mingled with its water, and then Wiggins v. Muscupiabe Co., 113 Cal. reclaimed; but in reclaiming it the 182, 54 Am. St. Rep. 337, 45 Pac. water already appropriated by an- 160, 32 L. R. A. 667. other must not be diminished." This ^ 152 Cal. 618, 93 Pac.. 881. is merely declaratory of the early deci- 1 No contention upon the use of sioiis already cited. riparian proprietors was made; and 21 Paige v. Rocky Ford etc. Co., the parties all claimed to use the 83 Gal. 84, 21 Pac. 1102, 23 Pac. 875. water on nonriparian lands or under 22 Beaverhead etc. Co. v. Dillon etc. claims of appropriation. 42 (3d ed.) Pt. I. FIRST PRINCIPLES. 38a termined "with the nicest exactness possible," and the right thereto then belongs to defendant who rescued it. Mr. Justice Henshaw said : ' ' This principle has been enunciated by this court as early as Butte Company v. Vaughn, 2 and has been reaffirmed, however varying the forms may have been, whenever it has been presented. The principle in brief is this: that where one is en- titled to the use of a given amount of water 'at a given point, he may not complain of any prior use made of the water which does not impair the quality or quantity to which he is entitled, and, upon the other hand, he may not lay claim to any excess of water over the amount to which he is entitled, however it may be pro- duced. In the Vaughn case, supra, the question turned upon the prior use. In Creighton v. Kaweah Irrigating Company 3 it is said: 'At best, the plaintiffs would be entitled only to have the defendant enjoined from obstructing the flow of that which would have naturally flowed unaided by artificial means, with which the plaintiff is not connected.' In Wiggins v. Muscupiabe L. & W. Co., 4 this whole question is elaborately considered, and full recogni- tion is accorded of the right to water of one who saves as well as to the one who develops it. It there appeared that one hundred inches of water were naturally lost by absorption and evaporation in passing through the natural channel from the dam and ditch of an upper riparian owner to the land of a lower owner. It was held that a court of equity in dividing the flow of the stream might allow the upper owner to provide artificial means for carry- ing all the waters of the stream in excess of the one hundred inches to the land of the lower -owner, and permit the upper owner to use so much of the one hundred inches as he could save by such artificial means, and, quoting from the opinion, it is said: 'The plaintiff could, under no circumstances, be entitled to the use of more water than would reach his land by the natural flow of the stream, and, if he receives this flow upon the land, it is immaterial to him whether it is received by means of the natural course of the stream or by artificial means. On the other hand, if the de- fendant is enabled by artificial means to give to the plaintiff all of the water he is entitled to receive, no reason can be assigned why it should, not be permitted to divert from the stream where it 2 11 Cal. 143, 70 Am. Dec. 769, 4 4 113 Cal. 195, 54 Am. St. Rep. Morr. Min. Rep. 552. 337, 45 Pac. 160, 32 L. R. A. 667. 3 67 Cal. 222, 7 Pac. 658. Ch. 3. SEVERED WATER. (3d ed.) 43 enters its land and preserve and utilize the one hundred inches which would otherwise be lost by absorption.' This same doctrine is recognized by all the courts which have been called upon to con- sider it." 5 (3d ed.) 39. Same. The point which distinguishes these cases is the intent existing at the time the artificial increment to the stream is produced, not to abandon it, but, on the contrary, always in- tending to reclaim it, and the carrying out of that intent within a reasonable time. The intent to recapture the water must be pres- ent at the time it is discharged from control, and must be very clearly shown; 6 otherwise an injunction will lie to prevent its recapture. 7 The intent to recapture is essential, and without it, the water is abandoned ; and, as previously set forth, cannot be re- claimed against claimants on the stream, existing at the time the recapture is attempted. The rule permitting recapture of artificial increments added to the stream without intent to abandon applies under the law of riparian rights as much as under the law of appropriation. 8 (3d ed.) 40. Statutory Regulation of Recapture. In this matter super- vision by public officials seems specially desirable when the owners along the stream are numerous. The owner of a water-right in the stream may well say: "Our waters would be so mixed that, inde- pendently of the injury you could cause me in retaking from the stream more water than you had turned in, you oblige me to keep a constant surveillance over you while doing so, and you compel me to keep up a perfect understanding with you in regard to the main- taining, clearing, and stoppage, or continuance of flow, on terms 5 Citing Platte Irr. Co. v. Imperial 8 Wiggins v. Muscupiabe Co., 113 Co., 25 Colo. 77, 53 Pac. 335; Herri- Cal. 182, 54 Am. St. Rep. 337, 45 man Irr. Co. v. Butterfield Min. Co., Pac. 160, 32 L. R. A. 667; Brymbo 19 Utah, 453, 57 Pac. 541, 51 L. R. A. Co. v. Lesters Co., 8 Rep. (Eng.) 930; Farnham on Waters, sec. 672. 329; Elliot v. Fitchburg Ry., 10 Note that the Wiggins case was de- Cush. (Mass.) 191, 57 Am. Dec. 85; cided with regard to riparian pro- Muskoka Co. v. Queen, 28 Grant Ch. prietors at common law. See, also, (U. C.) 563; Fox etc. Co. v. Kelley, infra, sec. 279. 70 Wis. 287, 35 N. W. 744; Society 6 Schulz v. Sweeney, 19 Nev. 359, 3 v. Morris Co., 1 N. J. Eq. 157, 21 Am, Am. St. Rep. 888, 11 Pac. 253. Dec. 41; Dyer v. Cranston Co., 22 R. 7 Wilcox v. Hausch, 64 Cal. 461, I. 506, 48 Pac. 791. 3 Pac. 108. 44 (3d ed.) Pt. I. FIRST PRINCIPLES. 40 upon which we probably could not agree ; in a word, you impose on me a perpetual community of interest which I have not sought, but opposed." To meet this, the recent State Water Codes usually allow the State Engineer to oversee the commingling and recap- ture. 9 In Washington the statute provides for court commissioners for that purpose. 10 And such commissioners may be appointed by courts in specific cases without statute. 11 9 Colorado. Rer. Stats. 1908, sees. 3203, 3222-3225; Gen. Stats. 1725; Laws 1879, p. 107, sec. 39; Laws 1907, p. 176. Idaho. Laws 1909, p. 150, c. 197; Laws 1911, c. 149. Nebraska. Cobbey's Ann. Stats., sees. 6752, 6799; Stats. 1897, c. 85, p. 359, see. 1; Laws 1903, c. 119, p. 612. New Mexico. Stats. 1907, p. 71, sec. 60. Oregon. Stats. 1909, c. 216, sec. 59. South Dakota. Stats. 1907, c. 180, sec. 4. 41-50. (Blank numbers.). And probably the other States hav- ing water codes. See statutes, in Part VIII below. 10 Stats. 1907, c. 222, p. 285. In the code of Lombardy it is pro- vided: "Article 16. Whoever desires to introduce water into a public canal with the view of taking it out again at a lower point shall submit his claim to the director-general. It will be decided so as to cause no injury to the rights of other parties. Objec- tions to such arrangement will be dis- posed of by the public administra- tion." 11 Infra, sec. 640. 51 Ch. 4. NATUBAL EESOUECES. (3d ed.) 45 CHAPTER 4. THE LAW CONFINED TO NATURAL RESOURCES. S 51. The natural usufruct alone of practical importance. 52. Natural and artificial watercourses distinguished. 53. The law of natural watercourses does not apply to water in an arti- ficial watercourse. 54. Importance of the right of access to the natural stream. | 55. Artificial flow claimants may have priorities between themselves. 56. But artificial flow claimants have no original rights against the creator of the flow, the owner of the natural resource. 57. Same. 58. Same. 59. Some qualifications. 60. Qualification by grant, condemnation, or dedication. 61. Qualification by drainage from a foreign source into a natural stream. 62. Qualification by relation back to a natural stream. 63. "First principles" deduced. 64-65. (Blank numbers.) (3d ed.) 51. The Natural Usufruct Alone of Practical Importance. The value of the foregoing lies in showing that the corpus of water in the stream itself, as a substance, is not the subject of property (is in the "negative community" or "belongs to the public"), and that one may have only the strictly usufructuary right to the flow and use of the stream. Were the principles to be, to any great extent, so applied as to regard cases as based upon property rights in running water as a substance, it would be a misapplication, for their true force lies in showing the opposite that controversies must, as a rule, be decided with regard to the flow and use of the natural water supply, and not its corpus; for the usufruct of the natural resource (and not the water itself) is alone of practical importance. This is having much influence in the West under the law of ap- propriation, which forcefully denies that a water user has any ownership in the water of the stream from which he diverts (that "belongs to the public"), but only a right to continuance of supply from the natural resource during the beneficial use. Under the common law of riparian rights the principle is as true a riparian owner also has no ownership of the water of the stream to which 46 (3d ed.) Pt. I. FIRST PRINCIPLES. 52 his land is riparian. He also has only a right of continuance of supply, though this right of a riparian owner differs from the law of appropriation, in that it is not confined to periods of use, but is perpetually reserved to his land, a perpetual right to have the supply from the natural resource continued for future possible use whether now used or not. (3d ed.) 52. Natural and Artificial Watercourses Distinguished. The law of natural watercourses or of natural bodies of water as natural resources does not apply to water in an artificial water- course, or other occurrence or situation not of natural creation. An artificial flow, depending for its continuance upon the act of man, differs in its essentials from a flow created by nature ; the one is voluntary, and the other is an element of geological struc- ture, a natural part of the earth; 1 the one requires duties to be placed upon the upper owner if he must continue it, the other requires no act of man to continue it. Moreover, in the natural resource whose flow is due to nature, the water is "piiblici juris" (or "belongs to the public," or is in the "negative community") and open to acquisition of original private rights of continual flow and use, or "water-rights." But the water in a ditch, reser- voir, pipe, or other artificial impound or structure that reduces it to possession is not publici juris; it has already somewhat of a private right attached to its corpus which withholds it from natural servitude of flow and use of others than its actual pos- sessor, the natural order of the water as a thing wandering at large has ceased. 2 Creswell, J., in Sampson v. Hodinott, 8 referring to the distinc- tion between an artificial drain and a natural stream, says that "all authority, from the Digest downward, shows that there is distinction." 4 That as a general proposition rights are the same in natural and artificial watercourses "cannot possibly be sus- i "A watercourse is a thing natu- or a ditch is as much an artificial ral." Shury v. Piggott, 3 Bulst. 339; mechanism as a pump; it may, indeed, Poph. 169, 81 Eng. Reprint, 280. be much more so; and the one al- - As said in one case, Charnock v. ters the natural conditions in the Higuerra, 111 Cal. 473, 481, 52 Am. same sense that the other does." St. Rep. 195, 44 Pac. 171, 32 L. R. A. 3 i Com. B., N. S., 590. 190, "Every diversion of water from 1 See, also, 14 Ency. of Laws of a stream is artificial a disturbance England, 604; 5 Am. & Eng. Ency. of of the natural order of things. A dam Law, 112. 53 Ch. 4. NATUBAL RESOURCES. (3d ed.) 47 tained. " 5 As is said by another authority: "The rights and lia- bilities of parties in respect of artificial streams and watercourses are entirely distinct from the rights and liabilities of riparian proprietors [or appropriators] in respect of natural streams and watercourses. The water in an artificial stream is the property of the party by whom it is created or caused to flow." 6 (3d ed.) 53. The Law of Natural Watercourses Does not Apply to Water in an Artificial Watercourse. In the natural resource (the flow and use of a natural stream) a real property right, an incorporeal hereditament, is acquired by original ownership. In an artificial flow, ownership can, as a general principle, be ac- quired only by grant, condemnation or prescription from the owner of the natural resource supplying the artificial flow; it is a derivative right and not an original one. Nature has created a resource in the flow and supply of the natural stream; but away from streams water carried to other localities can be sub- ject only to such rights of continuance as are derived through the man who carries it and causes it to flow there. It is simply the result of natural conditions. Only owners of rights in the natural streams have "natural rights" or rights in a natural water body ; all others derive a right only through some stream-owner, a derivative and not a natural right. This gives great value to the owners of natural water 'resources, and is a disadvantage to water users owning no rights in the stream itself and building up improvements at a distance from streams in reliance upon water coming from works or land of stream appropriators or riparian owners ; but that is simply an inevitable disadvantage inherent in natural situation away from streams, or where streams have been all taken up by prior rights where the law permits their appropriation. 7 5 Wood v. Waud, 3 Ex. 748. Ae- water permanently from its channel, cord, Goddard on Easements, 7th ed., and requires it to be returned to the 1910, p. 87. -stream so that natural rights may ex- 6 Kerr on Injunctions, 4th ed., p. ist therein in favor of others. (In- 190. fra, sec. 709, "Natural Right.") The "Artificial channels are in a dif- law of prior appropriation, however, ferent legal position from natural does not require such return in favor watercourses." Ferguson on Water of any party subsequent to a perma- in Scotland, p. 277. nent diversion; it holds the natural 7 Note that the common law for- resource open to exclusive ownership, bids the carrying away of stream 48 (3d ed.) Pt. I. FIRST PRINCIPLES. 54 (3d ed.) 54. Importance of the Right of Access to the Natural Stream. Since only the natural resource is, thus, the subject of original natural usufructuary rights (as distinguished from contract or derivative rights), a right of access to the natural resource (the natural stream) is indispensable to the acquisition of rights or usufructs therein. It is the result of natural conditions which surround streams entirely by land vested in ownership. Since such inclosing lands alone have or can give a right of access to the stream, their ownership must be a factor which will inevi- tably shape any system of water law. The controlling force of the ownership of the inclosing lands controlling access to the natural resource is the accepted basis of the common law of riparian rights and of the new law of per- colating water. Thus, declaring emphatically that the water itself is not the subject of ownership (or is "publici juris"), the law of riparian rights arises directly from the exclusion of non- riparian owners because they have no access to the natural resource (the natural stream) without trespassing upon the riparian lands; it then gives equal rights (as opposed to special rights by priority of use) to that class of the public owning the lands having such access, that is, the riparian or inclosing lands. 8 Likewise the new law of percolating water declares that the ground-water is not itself the subject of private ownership, just as of the water of streams, and declares that it gives equal rights to that class of the public owning the lands having access to the natural underground re- source that is, all adjacent or overlying lands. 9 And no less noteworthy is the way the right of access has affected the law of prior appropriation. The early policy of the United States of free rights in the public lands (approved by the act of 1866) afforded free access to the streams to all, and the law of prior appropriation nourished; to-day, with the vast areas of re- served or withdrawn lands, the United States has largely with- drawn the right of access to the streams, with the avowed purpose of preventing their appropriation. 10 So, likewise, the rapid pace of settlement, under which bordering lands are passing into private hands, restricts the right of access in the same way, and impedes appropriation of the water. It was, indeed, the passing of riparian 8 Infra, sees. 692 et seq., 765 et 8 Infra, sec. 1102 et seq. seq. 10 Infra, sec. 204 et seq. 55 Ch. 4. NATURAL RESOUECES. (3d ed.) 49 lands into private hands which directly brought back the laws of riparian rights in California (confining appropriation to the pub- lic lands) ; and which, in Colorado, to avoid that result, caused the early ruling for free access and rights of way over private lands, since found necessary on constitutional grounds to discard. 11 So the situation is rapidly arriving where, even though the State law recognizes no water law but prior appropriation, yet appro- priators cannot get at the water either because private land incloses the stream and must not be trespassed upon, or because the inclos- ing land is public land and the United States refuses the right to build ditches or reservoirs (that is, the right of access) except under the newly developing system of Federal Right of Way legis- lation. The general body of the law of watercourses, under whatever system, is applicable only to natural streams in their natural situa- tion; and a right of access to this natural resource through the bordering lands is essential to the exercise of rights therein, a de- terminative factor in any system of water law. (3d ed.) 55. Artificial Flow Claimants may have Priorities Between Themselves. Between two parties, both without right in any natural stream (such as rival claimants to waste water coming from a ditch of a stream-owner to whom both are strangers), priority of possession governs by the rule of the common law that posses- sion is sufficient title against a later mere possession; between two parties equally without right the one first in possession has the better standing. 12 It is frequently so provided by statute. 13 It should be noticed, however, that the Colorado statute, which has been the model for the others, recognizes a paramount right in the owner of the natural resource from which the waste or seepage 11 Infra, sees. 224, 225. shall be governed by the same laws 12 See Wood v. Waud, 3 Ex. 748. relating to priority of right as those For example, water from a tunnel ditches constructed for the purpose of belongs to the appropriators receiving utilizing the water of running it as against all who are not privy streams; Provided, that the person to those who drove the tunnel. Far- upon whose land the seepage or spring mers' Union etc. Co. v. Rio Grande waters first arise, shall have the prior etc. Co., 37 Colo. 512, 86 Pac. 1042. right to such waters if capable of be- See, also, cases in the following ing used upon his lands." Colo. Rev. note. Stats. 1908, sec. 3177; M. A. S. 2269;- 13 Colorado. "All ditches now con- Laws 1889, p. 215, 1. See Rev. Stats, structed or hereafter to be constructed 1908, sec. 4231, as to waste water for the purpose of utilizing the waste, hoisted from a mine. (See La Jara seepage or spring waters of the State, etc. Co. T. Hansen, 35 Colo. 105, 83 Water Rights 4 50 (3d ed.) Pt. I. FIEST PBINCJPLES. 56 comes. The rival waste claimants merely have priorities between themselves. Claims of this kind between rivals both subject to a paramount title in a third person frequently occur in the law of waters ; 14 but they are not freehold rights, being at the mercy of the paramount owner, in this case, the owner of the natural supply. (3d ed.) 56. But Artificial Flow Claimants have No Original Rights Against the Creator of the Flow, the Owner of the Natural Re- source. While artificial flow claimants may thus have priorities between themselves, they can have no right of continuance against the owner of the natural supply (the appropriator on the natural stream, or in California, the riparian owner) , except by grant, con- demnation or dedication (or by the rule of compulsory service where the water is distributed to public use) . 14a The chief instance of artificial flows in practice is where some stream-owner has carried water to a distance and, after use, dis- charges it below his land or works. Where this discharge is into a stream, the matter is more particularly considered in a later section; but the simplest case is where there is no stream at the point of discharge, and the waste simply makes its way off over a dry gulch or other theretofore waterless configuration of the land. Seeing the water come down, other parties arrive, build Pae. 644. See, also, Eipley v. Park Oregon. See Brosnan v. Harris, 39 etc. Co., 40 Colo. 129, 90 Pac. 75.) Or. 148, 87 Am. St. Rep. 649, 65 Pac. Idaho Section 3246, Rev. Codes, is 867, 54 L. R. A. 628 ; Hough v. Por- copied from the Colorado statute, ter, 51 Or. 318, 95 Pac. 732, 98 Pac. supra. The act embodying this sec- 1083, 102 Pac. 728. tion was passed in 1899. See Laws South Dakota. Laws 1905, p. 201, 1899, p. 380, sec. 23. See concurring eec. 56. See Laws 1907, e. 180, see. opinion of Sullivan, C. J., in Gerber 57, requiring payment to the owner v. Nampa Irr. Dist., 16 Idaho, 1, 100 of works from which seepage comes, Pac. 80 ; Saunders v. Robison, 14 before right thereto is acquired. Idaho, 770, 95 Pac. 1057. Washington. Sec. 5829, Pierce's Nebraska. (Substantially a copy Code of 1905. See Dickey v. Maddux, of the Colorado act.) Comp. Stats. 48 Wash. 411, 93 Pac. 1090; Nielson 1903, see. 6452; Cobbey's Ann. Stats. v. Sponer, 46 Wash. 14, 123 Am. St. 6798; Laws 1895, c. 69, p. 260, see. Rep. 910, 8ft Pac. 155. This is 44. copied from the Colorado statute, New Mexico. Laws 1907, p. 71, supra. sec. 53. See Vanderwork v. Hewes Some of these, such as the New (N. M.), 110 Pae. 567. Mexico and South Dakota statutes, North Dakota. Stats. 1905, c. 34, recognize, between seepage claimants, sec. 49; Rev. Codes (1905), sec. 7604 priority in him who first obtains per- et seq. mit from the State Engineer. Oklahoma. Laws 1905, p. 224, sec. 14 Infra, sees. 246 : 627. 45. I4a Infra, sec. 1248 et seq. 57 Ch. 4. NATURAL RESOURCES. (3d ed.) 51 ditches below, receive the water and put it to use. Yet unless they have a contract with the stream-owner, they must generally rely upon continued receipt from him of such water at their peril. In such case the creator of this artificial flow may cease to allow it to escape. So long as he permits it to go down, the lower takers have a right to all that comes; so much he has abandoned, and can- not recapture; with its use he has no concern. 15 But it is only the specific water run waste that is abandoned, not any of the in- coming water; the owner's water-right in the flow and use of the natural stream remains unaffected and unlimited by anything that happens to the waste away from any stream. Whenever he will he may begin to retain it and prevent its escaping in the future, or may change his use so that it escapes in another place (the law limiting changes, elsewhere considered, applies only to natural streams) ; 16 and generally may exercise dominion over its continu- ance even though it be to the detriment of those to whom it has come while allowed to escape. 17 Some simple illustrations will show that this must obviously be so. May not the original appropriator from the stream, the owner on the natural resource, abandon his ditch when it gets old, the abandonment resulting in that it no longer carries waste to the waste claimants or, if it breaks, must he keep it in repair for the benefit of the waste users ? Would the flow of water from the eaves of a house give a right to the neighbors to insist that the house should not be pulled down or altered, so as to diminish the quan- tity of water flowing from the roof? Would the fact that my pump has for years dripped water onto a neighbor's ground give him a right to say that my pump must go on leaking? (3d ed.) 57. Same. As the water in a ditch is private property, the landowner through whose land the ditch runs, or into which a ditch discharges, can claim no riparian rights therein against the ditch- owner, for riparian rights exist only in natural streams, whose waters are publici juris. A nonriparian owner receiving the 15 Supra, sec. 37. submission on the part of the lower 16 Infra, sees. 496, 5.00. proprietor to proceedings which indi- 17 The mere discharge of water by cate a claim of right on the part of an upper proprietor upon the land of the proprietor above, but it is difficult a lower may easily establish a right for the lower proprietor to establish on the part of the upper proprietor a right to have the flow continued. to go on discharging, because so long 18 Davis v. Martin (1910), 157 Cal. as the discharge continues there is 657, 108 Pac. 867 j Creighton v. 52 (3d ed.) Pt.I. FIRST PRINCIPLES. 557 waste from the ditch of a riparian owner does not thereby acquire any right in the stream from which the water originally comes, nor any right (aside from grant) to have the riparian owner continue the supply. 19 Nor is it subject to the acquisition (against the creator of the flow) of a continuous right of flow and use by ap- propriation under the law of prior appropriation, for the law of appropriation, properly speaking, as a law of freehold rights, applies likewise only to the flow of a natural stream. 20 In the absence of contract, the natural water-right owner may cease the abandonment of waste from a ditch, and so use the water that none of it thereafter runs waste, or so that it runs off in a new place where people below no longer can get it. 21 Long receipt by them of the water of itself gives no per- manent right to have the discharge continued, whether by appro- priation, prescription or estoppel, even though the lower claimants built expensive ditches or flumes to catch the waste. 22 The claim Kaweah Co., 67 Cal. 221, 7 Pac. 658; Green v. Carotta, 72 Cal. 267, 13 Pac. 685; Arkwright v. Gell, 5 Mees. & W. 225, 2 H. & H. 17; Ranney v. St. Louis Co., 137 Mo. App. 537, 119 S. W. 484. Compare the French law as given in "Droit Civile Francais," by Aubrey & Rau, 4th ed., vol. Ill, p. 48. "Proprietors nonriparian to the natural flow of the water are not al- lowed, as riparian to an artificial canal leading from the stream, to de- mand that the canal owner transmit to them the water thus derived." ("Les proprietaires non-riverains d'un cours d'eau naturel ne sont pas aclmis, comme riverains d'un canal artificiel derive de ce cours d'eau, a demander que le proprietaire du canal leur transmette les eaux ainsi derivees.") 19 Davis v. Martin, 157 Cal. 657, 108 Pac. 866. In this case the court said, per Mr. Justice Shaw: "The Martin ranch abutted upon the stream and the riparian rights attaching to said lands by reason of this contiguity were paramount to the rights of any appropriator. Being the owners of the land bordering its banks, they could control its flow and prevent others from diverting it at any point on their lands. There was no evi- dence or finding that the plaintiffs ever obtained by purchase or grant from the owners of the Martin ranch any right whatever either to maintain the ditch over that ranch, or to use the water of the stream The only part thereof which the plaintiffs succeeded in obtaining for use on their land was such waste waters as the owners of the Martin ranch al- lowed to pass through the ditch be- yond their boundaries." 20 Cases just cited. Helm, C. J., in Farmers' etc. Co. v. Southworth, 13 Colo. Ill, 21 Pac. 1029, 4 L. R. A. 767, says: "The constitution recog- nizes priorities only among those tak- ing water from natural streams." (See, also, Dickey v. Maddux, 48 Wash. 411, 93 Pac. 1090.) Other authorities are hereinafter cited in dealing with specific examples in the following sections. 21 Davis v. Martin, 157 Cal. 657, 108 Pac. 866; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299 (commented on in Katz v. Walkinshaw, 141 Cal. 116, at 129, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236) ; Correa v. Frietas, 42 Cal. 339, at 343; 2 Morr. Min. Rep. 336. 22 The following are cited only as examples (see, also, cases cited infra, sec. 593, "estoppel") : Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116, 1 Morr. Min.. Rep. 35; Stone v. Bumpus, 40 Cal. 428, 4 Morr. Min. Rep. 271; Hanson v. 57 CK 4. NATURAL EESOUECES. (3d ed.) 53 to a continuance of such lower use by estoppel is frequently made, on the ground that the ditch-owner allowing the discharge down the gulch knew of the expectation of the person receiving the dis- charge, and of the expense incurred in putting it to use. But in a leading case 23 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 constructed 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 conduct of a party before a court of equity will estop him from the assertion of his title the effect of the estoppel being, to forfeit his property, and transfer its en- joyment to 'another." 24 Estoppels may arise from proper facts, but not from merely receiving water that another discharges. 25 Lower user based purely upon discharged waste from a ditch or tunnel, etc., gives no permanent rights, and to this effect some quotations are here given, including cases where the waste found its way to the lower claimants by percolation. "The plaintiffs could acquire no other than a mere privilege or right to the use of the waste water, or, at most, but a secondary and subordinate right to that of the first appropriators, and only such as was liable to be determined by their action at any time, unless the water had been turned back into the original channel " * McCue, 42 Cal. 303, 10 Am. Eep. 299; 21 Morr. Min. Eep. 699; Wimer v. Correa v. Frietas, 42 Cal. 339, 2 Morr. Simmons, 27 Or. 1, 50 Am. St. Eep. Min. Eep. 336; Stockman v. Eiver- 685, 39 Pae. 6; Crescent etc. Co. v. side etc. Co., 64 Cal. 57, at 59, 28 Silver King etc. Co., 17 Utah, 444, 70 Pac. 116; Anaheim etc. Co. v. Semi- Am. St. Eep. 810, 54 Pac. 244. See Tropic etc. Co., 64 Cal. 185, 30 Pac. Yale on Mining Claims and Water 623; Lux v. Haggin, 69 Cal. 255, at Eights, 201; Arkwright v. Gell, 5 266, 10 Pac, 674 (disapproving Parke Mees. & W. 226, 2 H. & H. 17; Mason v. Kilham, 8 Cal. 77, 68 Am. Dec. v. Shrewsbury etc. Ey. Co. [1871], 310, 4 Morr. Min. Eep. 522, on this L. E. 6 Q. B. 578; Greatrex v. Hay- point) ; Lakeside Ditch Co. v. Crane, ward [1853], 8 Ex. 291, 22 N. J. Ex. 80 Cal. 181, 22 Pac. 76; Hargrave v. 137. Cook, 108 Cal. 72, 41 Pac. 18, 30 L. 23 Stockman v. Eiverside etc. Co., E. A. 390; Davis v. Martin, 157 Cal. 64 CaL 57 at 59 2 8 Pac. 116 657, 108 Pac. 866; Fairplay etc. Co. , r ,.,. ,, ,, , ,,. J . o ' n i -i OK R7 T>O/, ifln 24 Citing Boggs v. Merced Mm. 91 V p 7^' I k^rl v Co -> 14 Cal. W3/10 M ". Min. Eep. 21 Morr. Mm Eep. 725; Burkhart v. ^ TM . in ' accord with the lea j. p ' I'P ? QQ fiT w A ^1 iQ g En g lish case of Arkwright v. Eep. 2(9, 86 Pac. 99, 6 L. E. A., N. S., gg, 5 - & W 2"6 2 H & H 17 1104; Smith etc. Co. v. Colorado etc. "J J Co., 34 Colo. 485, 82 Pac. 940, 3 L. 5 Infra, sees. 556, 593, 594. E. A., N. S., 1148; Cardelli v. Com- l Woolman v. Garringer, I Mont. stock Co., 26 Nev. 284, 66 Pac. 950, 544, 1 Morr. Min. Eep. 675. 54 (3d ed.) Pt. I. FIRST PRINCIPLES. 57 In Hanson v. McCue : 2 "This ditch, in its course over Hanson's land, leaked water in such quantities that it collected into a stream, which Hanson used for irrigation. This was the only foundation for the right which Hanson had or claimed to the water. The court prop- erly held that he had no right to the waste water, and that McCue was not bound to continue to maintain the artificial stream for Hanson's benefit, but could, by any means he chose, change the use of the spring and the course of the ditch." In a recent California case it was ruled that use for many years of waste coming from a ditch does not of itself give any right of action against the ditch- owner when he thereafter, for his own use, cuts off the waste. 3 Waste water soaking from the land of another after irrigation need not be continued, and may be intercepted and taken by such original irrigator, and conducted elsewhere, though parties there- tofore using the waste are deprived thereof. In one case 4 plain- tiff had dug a ditch along the boundary of her land, thereby collecting the seepage from the irrigation of her neighbor above. The latter dug a parallel ditch on his own land, collecting the seep- age for himself and using it elsewhere. The court says: "The plaintiff certainly has acquired no vested right to compel the de- fendants to apply the waters, the right to the use of which they own, in such a way as that some of it will not soak into their own ground, but escape and pass from the surface onto her lands. The defendants have the right to change the place and manner of use, or reduce the quantity applied to their lands, so that no water whatever will escape and reach the lands of plaintiff The plaintiff does not assert the right to the use of this water by virtue of an appropriation made from the same stream, or any of its tributaries, which are the source of defendants' supply. She can- not, therefore, like a prior or junior appropriator of water from the same stream, insist on the economical use of the defendants of their appropriation By mere acquiescence on their part to plaintiff's use after waste water has passed from their lands they have not estopped themselves thereafter to intercept and make beneficial use of it before it escapes from their control." 5 2 As commented on by Shaw, J., in * Burkhart v. Meiberg, 37 Colo. 187, Katz v. Walkinshaw, 141 Cal. 116, 119 Am. St. Rep. 279, 86 Pac. 98, 99 Am. St. Rep. 35, 70 Pac. 663, 74 6 L. R. A., N. S., 1104. Pac. 766, 64 L. R. A. 236. 5 Where a canal company furnishes 3 Davis v. Martin, 157 CaL 657, an applicant with waste water from n 108 Pac. 866. drain ditch, supplied wholly with 57 Ch.4. NATUEAL RESOURCES. (3d ed.) 55 No action, therefore, will lie for an injury by the diversion of an artificial watercourse, where from the nature of the case it is ob- vious that the enjoyment of it depends upon temporary circum- stances and is not of a permanent character. 6 This, if sanctioned, would present a case of the servient owner being allowed to compel the dominant one to continue a discharge of water and to prevent him from altering its course, and thus to invert their relative posi- tions. No such right exists in the servient proprietor. 7 The point of view is that the water issuing from the discharge must be considered as a corpus, so that no question of a continuous water wasting from other lands, the user thereof cannot compel the canal company to maintain such waste water, even though a rental is charged therefor when used; for the rights of the user depend wholly upon the water wasted into the drain ditch. Gerber v. Nampa Irr. Dist., 16 Idaho, 1, 100 Pae. 80. 6 Wood v. Waud, 3 Ex. 747; Gale on Easements, 181; Arkwright v. Gell, supra; Duncan v. Bancroft, 110 Mass. 267; Waffle v. New York Cent. R. R. Co., 53 N. Y. 11, 13 Am. Rep. 467; 58 Barb. 413; 2 Washburn on Real Property, 72. 7 A recent writer (Mr. Mills, of Denver, Colorado, in Mills' Irrigation Manual, p. 53) says: "An appro- priator of waste water acquires a right only to whatever water flows from the ditch or canal through which the first use is made, after the wants and necessities of the appropriators under such ditch or canal have been supplied, and such appropriation does not carry a right to any specific quan- tity of water, nor the right to inter- fere with the water flowing in such ditch or canal, and the appropriators under such ditch or canal are under no obligation to permit any specific quantity of water to be discharged as waste for his benefit." An English case says: "If the stream flows at its source by the operation of nature that is, if it is a natural stream the rights and lia- bilities of the party owning the land at its source are the same as those of the proprietors in the course below. If the stream flows at its source by the operation of man that is, if it is an artificial stream the owner of the land at its source or the commence- ment of the flow is not subject to any rights or liabilities toward any other person, in respect of the water of that stream. The owner of such land may- make himself liable to duties in re- spect of such water by grant or con- tract; but the party claiming a right to compel performance of those duties must give evidence of such right be- yond the mere suffering by him of the servitude of receiving such water." Gaved v. Martyn, 19 Com. B., N. S., 759, 760. "If such a stream be of a tem- porary and precarious character, owing its existence solely to opera- tions carried on for the beneficial use of the alleged servient tenement, it will be difficult, if not impossible, for an inferior heritor to qualify a right to its continuance." Ferguson on Water in Scotland, pp. 277, 278. A civil-law writer finds the rule to be the same under that system, saying: "I have been able to allow it to run out of my property, because it was useless to me I have been able to permit that you should make on your field works to collect it, because I had no right to prevent them, since each one can do on his property that which appears most convenient to him, but not on that account have you ac- quired the right to the water which has not yet flowed out of my field, but only to that which may be al- ready outside of my possession; and thus it is, that I can retain it, con- vert it to new uses, and even dry up the spring, which, perhaps, may be prejudicial to me." Eschriche, "Aguas," sec. 4, translated from the Spanish. See, also, the French writer quoted at the beginning of this sec- tion. 56 (3d ed.) Pt. I. FIRST PKINCIPLES. 58 usufructuary right in a natural resource can be involved. So much of the corpus as is discharged is "returned to the public," and may be taken by the man to whom it comes, but receiving it gives him no right in any of the substance that has not yet come to him. He deals with the corpus of water and not with its natural flow. The law of appropriation as a system of permanent freehold rights, and the law limiting change 8 properly can apply only to rights in a natural watercourse. As was said in Colorado by Mr. Justice Helm: "The constitution recognizes priorities only among those taking water from a natural stream." 9 Waste claimants at a distance from streams have no rights of con- tinuance against the owner on the natural resource, or the creator of the waste flow. Should the statutes above mentioned 10 be thought to x attempt to bind a stream-owner against his will to waste claimants disconnected with any stream, they would be taking from owners on the natural resource the control of their property, and would seem unconstitutional as depriving them of an essential element of their property right without due process of law. 11 (3d ed.) 58. Same. "While the foregoing was addressed more di- rectly to water discharged as waste from a ditch or flume or similar structure, yet the authorities given also involve water escaping by seepage, and the principle is entirely the same. No question of a continuous water- right is involved (aside from prescription or con- tract, etc.) except where rights can be asserted directly or indirectly in a natural stream. The discharge of drainage water through a tunnel stands on the same footing, with the additional strength that, while the discharge considered in the last section was not of water artificially collected (but, instead, originally existing in a natural body and diverted therefrom) here the water is itself artificially collected, as well as artificially confined. The question arises in cases of water pumped from a mine and run off in a ditch. The leading case in which this situation is considered is the English case of Arkwright v. Gell, 12 in which the opinion was by Baron Parke, to whose opin- 8 Infra, sec. 496 et seq. n See Dickey v. Maddox, 48 9 Farmers' etc. Co. v. Southworth, Wash. 411, 93 Pac. 1090; Nielson v. 13 Colo. 120, 21 Pac. 1028, 4 L. E. A. Sponer, 46 Wash. 14, 123 Am. St. 767. Kep. 910, 89 Pac. 155. 10 Supra, sec. 55. 12 5 Mees. & W. 226, 2 H. & H. 17. 58 Ch. 4. NATUEAL RESOUKCES. (3d ed.) 57 ions the law owes much to the clear presentation of the distinction between the corpus of water and a usufructuary right. He says the stream coming from the mine is not governed by the law of natural watercourses, and proceeds: "This was an artificial watercourse, and the sole object for which it was made was to get rid of a nuisance to the mines, and to enable their proprietors to get the ores which lay within the mineral field drained by it ; and the flow of water through that channel was, from the very nature of the case, of a temporary character, having its continuance only whilst the convenience of the mine-owners re- quired it, and in ordinary course it would most probably cease when the mineral ore above its level should have been exhausted." As to the lower claimant who received and put to use this water, "He would only have a right to use it, for any purpose to which it was applicable, so long as it continued there." Time would raise no presumption of a grant nor found any claim to a continuance of the discharge; for "the mine-owner could not bring any action against the person using the water," so as to make him stop using it ; and consequently such use did not in any way concern or bind the mine-owner. "We therefore think that the plaintiffs never ac- quired any right to have the stream of water continued in its former channel." 13 A modern illustration, entirely to the same effect, arose out of the waters flowing from the Sutro tunnel, below Virginia City, Nevada. Plaintiffs used waste water that was being pumped from the Comstock mines, and discharged in large volume through the Sutro tunnel, which had been built to drain those mines. This discharge, the court held, was an artificial stream, and not subject to appropriation by plaintiff so as to give any right against the tun- nel company. The court put this case: "One further illustration: A, by artificial means, fills a tank or reservoir on his own land to- day, 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-morrow, 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 num- 13 Accord, Wood v. Waud, 3 Ex. Water in Scotland, p. 277 et seq. 775. See, also, Ferguson on Law of 58 (3d ed.) Pt. I. FIRST PRINCIPLES. 59 ber of years. In such case, time would raise no presumption of grant, and A could at any time stop the production of such arti- ficial and temporary stream; and he could also, at any time, if he continued the production of such stream, put the waters thereof to his own use." 14 In this case, counsel argued "That such waters are just as absolutely the property of the corporation defendant as if such water were manufactured each day from oxygen and hydrogen by the corporation defendant." A distinction may, perhaps, be made between such tunnel water and an artesian well. The water from an artesian well, though artificially started, thereafter flows naturally. It has been held, that where an artesian well was drilled on an oil claim on public land, and both the well and claim were then abandoned, the flow from the well was a stream to which the law of appropriation ap- plied thereafter. 15 Another case also distinguished between arte- sian wells flowing naturally and wells requiring pumping. 18 (3d ed.) 59. Some Qualifications. It is possible that the owner of the natural supply may be prevented from capriciously cutting off an artificial supply of water which another has long enjoyed, when that is done without any fair object of his own to promote, or is done merely to injure the other; but that would be an innovation upon the general rule that the motive with which an act is done is immaterial. Such innovation has been made in natural percolating water cases, denying a right to cut off another's natural percolating supply except for the reasonable use of one's own land; 17 but it has not, as yet, entered into the authorities here. But there is one clear qualification; and there are two others upon which the law is not, however, settled. The clear exception is where rights are acquired against the creator of the flow by grant, condemnation or dedication. The two others are possibly the cases where an artificial flow of water from a foreign source is allowed to enter and enrich a natural stream, and the cases in the 14 Cardelli v. Comstock T. Co.. 26 etc. Co. v. Weston, 29 Colo. 125, 67 Nev. 284, 66 Pac. 950, 21 Morr. Min. pa c. 160, 21 Morr. Min. Rep. 725. Rep. 699. Accord as to mine tunnel 15 De WolfskiU v. Smith, 5 Cal. waters, Crescent etc. Co. v. Silver ^f^rt^m Cal. App . 233 , King etc. Co., 17 Utah, 444, 70 Am. 9! p ac . gll. St. Rep. 810, 54 Pac. 244; Fairplay " Infra, sec. 1119 et seq. 60 Ch. 4. NATUEAL RESOURCES. (3d ed.) 59 West where consumers from a distributing canal are held to be owners of the natural stream through the intermediate agency of the distributing system. These are considered in the following sec- tions in the order named. (Before doing so, mention may be made of an apparent qualifica- tion under the rule of compulsory service where water is received from a canal devoting it to public use. 17 * That, however, is a matter only collateral to the law of watercourses.) (3d ed.) 60. Qualification by Grant, Condemnation, or Dedication. That rights may be obtained, against the owner of the natural supply, by grant or condemnation, needs no exposition. There is further an established principle that by lapse of time an artificial watercourse may come to be regarded as equivalent to a natural one. These cases do not depend exactly upon prescrip- tion, for, as above shown, prescription, properly speaking, cannot run in favor of lower parties upon a flow as against parties high up. 18 They rest rather upon what some of the cases call an ordi- nary dedication to a class of public which, in the course of time, has established itself upon the basis of the artificial condition. Where the creator of the artificial condition intended it to be per- manent, and a community of landowners or water users has been allowed to adjust itself to the presence and existence of the arti- ficial watercourse or other artificial condition, acting upon the supposition of its continuance, and this has proceeded for a long time beyond the prescriptive period, the new condition will be re- garded as though it were a natural one, its artificial origin being then disregarded by the law as it has been by the community. The creator of the artificial watercourse will be held to have dedicated it to the use of the community that has by long time become ad- justed to it. 19 I7a Infra, sec. 1280. St. Rep. 382, 83 N. E. 893, 16 L. R. 18 Supra, sec. 56 et ssq. A., N. S., 280, 14 Ann. Gas. 907; 19 Paige v. Rocky Ford etc. Co., 83 Shepardson v. Perkins, 58 N. H. 354; Cal. 84, at 93, 21 Pac. 1102, 23 Pae. City of Reading v. Althouse, 93 Pa. 875; Matheson v. Ward, 24 Wash. 405; Woodbury v. Short, 17 Vt. 386, 407, 85 Am. St. Rep. 955, 64 Pac. 44 Am. Dec. 344; Foetl v. Whitlock, 520; Hollett v. Davis, 54 Wash. 326, 27 Vt. 265; Beeston v. Waite (1856), 103 Pac. 423; Hough v. Porter, 51 5 El. & B. 986; Bailey v. Clark Or. 318, 95 Pac. 732, 98 Pae. 1083, (1902), 1 Ch. 649; Nuttall v. Brace- 102 Pac. 728; Stimson v. Inhabitants well, L. R. 2 Ex. 1; Ivimey v. Stocker, of Brookline, 197 Mass. 568, 125 Am. L. R., 1 Ch. App. 396; Whitmore v. 60 (3d ed.) Pt. I. FIRST PRINCIPLES. 61 Where the owner of the land has artificially changed the course of the stream so as to affect other riparian proprietors favorably, and acquiesced therein for a sufficient length of time, he cannot claim the right to change the flow of the water to the detriment of such other riparian owners; for such acquiescence on his part is binding like a public dedication. 20 After high- water channels are artificially opened, and after they, together with the cuts dug con- necting them with the main stream, have been used by the parties opening them and by their successors in interest, and such use is acquiesced in and recognized as branches of the main creek by others on the main stream and its tributaries and branches for the period prescribed by the statute of limitations, they become as natu- ral channels and owners of lands adjacent thereto are in law entitled to the same consideration and to the same rights as are those on the main and unquestioned channel. 21 - This rule rests upon a quasi dedication of the artificial condition to the public, and the essence of it is the growth of a community dependent upon the artificial condition. "Where no such com- munity-interest has been created, and the question is solely between a single individual and the original creator of the artificial water- cpurse or condition, the rules purely of prescription, as above con- sidered, apply. The rule of dedication to the public just set forth is inapplicable. (3d ed.) 61. Qualification in Cases of Drainage from a Foreign Source Into a Natural Stream. The foregoing dealt with artificial dis- charges of water, such as waste water, that did not enter any natural stream. Where the discharge of waste from a ditch or other works is into a stream perhaps another question enters. Where the discharge into a stream consists only of water originally taken from that stream, there can be no question but that the lower stream claimants have a right to its continuance, being simply a Stanford (1909), 1 Ch. 427; Wood v. sec. 159); Woodbury v. Short, 17 Waud, 3 Ex. 775; Gould on Waters, Vt. 386, 44 Am. Dec. 344; Shep- sec. 159; 14 Ency. of Laws of Eng- ardson v. Perkins, 58 N. H. 354; land, 404. Ford v. Whitlock, 27 Vt. 265; Mathe- But see Ranney v. St. Louis etc. Co., son v. Ward, 24 Wash. 407, 85 Am. 137 Mo. App. 537, 119 S. W. 484; St. Rep. 955, 64 Pac. 520; Hollett Greatrex v. Hayward (1853), 8 Ex. v. Davis (1909), 54 Wash. 326, 103 291, 22 L. J. Ex. 137. Pac. 423. 20 Paige v. Rocky Ford etc. Co., 21 Hough v. Porter, 51 Or. 318, 95 83 Cal. 84, 93, 21 Pac. 1102, 23 Pac. 732, 98 Pac. 1083, 102 Pac. 728. Pae. 875 (citing Gould on Waters, 61 Ch. 4. NATURAL RESOURCES. (3d ed.) 61 surplus of the natural flow, governed by the ordinary rules of riparian rights (under the common law) or of successive appro- priators of natural streams under the law of appropriation. 22 In- d'eed, under the common law of riparian rights, such return to the stream is obligatory. 23 But there is much difficulty where an artificial flow is discharged into a stream from a foreign source, such as the waste from a ditch heading in a different stream, or from a seepage tunnel, or from neighboring irrigation, which would not have formed part of the stream otherwise; a difficulty arising chiefly under the law of appropriation of streams, which system does not in all cases re- quire the .water to be returned to the same stream from which taken, and it is frequently discharged into an entirely different drainage. The man bringing it there without intent to recapture has aban- doned all he allows to enter, and cannot reclaim it from the stream; 24 but have claimants on the receiving stream any perma- nent right to a continuance of the discharge into the stream ? Is it a part of their natural source of supply giving vested rights in a supply from a foreign source, so as to limit the dominion of the ditch-owner over it, and so as to constitute a permanent right to have the discharge into the stream from the foreign source kept up? For example, if mine water has long drained into a stream and augmented it, must the mine-owner forever continue draining his mine that way, when it is clear, as above, that he would not have to continue it if he had not discharged it directly into the stream ? 25 There are holdings that the lower stream claimants have a right to the continuance of the artificial discharge into the stream from a foreign source, as a part of their usufructuary right in the stream itself. 1 Nevertheless, it is said: "Water artificially added to a natural stream becomes a part of it, and can be afterward appropriated only to the same extent as the stream itself. [Referring to aban- 22 Infra, see. 302 et seq., succes- Tourtellot v. Philps, 4 Gray (Mass.). eive appropriators. 370, Shaw, C. J. ; Washburn on Ease- 23 Infra, sec. 755. ments, star p. 274, sec. 33; Angell 24 Supra, sec. 37. on Watercourses, 7th ed., sees. 93, 95, 25 He certainly cannot pollute it. p. 99. Humphreys T. Co. v. Frank, 46 Colo. It should be recalled that the duty 524, 105 Pac. 1093. to continue the artificial discharge 1 Eddy v. Simpson, 3 Cal. 249, 58 into the stream is established where Am. Dec. 408, 15 Morr. Min. Rep. lapse of time has made it amount in 175; Wood v. Waud, 3 Ex. 779; effect to a dedication of the artificial Druley v. Adam (1882), 102 111. 177; flow to the public (supra, sec. 60). 62 (3d ed.) Pt. I. FIRST PRINCIPLES. 62 donment of the water so long as it is so discharged.] But the means by ivhich it is added may presumably be stopped." 2 And it has also been said that, as to artificial increase in the flow of a stream the lower owner has no interest therein, and cannot, as a matter of right, insist upon its being kept up or upon any ad- vantages to be derived therefrom. 3 These seem to say that where water is from a foreign source there is no distinction whether it enters a natural stream, or whether, as in the many cases previously cited, it is discharged as waste at a distance from streams ; that the party receiving it cannot force its continuance in this case any more than in the other. The present writer expresses no opinion. (3d ed.) 62. Qualification by Relation Back to a Natural Stream. Contracts for water in artificial structures must primarily be derivative rights, resting for their continuance upon the contract duty of the owner on the natural resource (the natural stream) to keep his contract and furnish the supply (and, where the water is devoted to public use, upon the public right to compel its distribu- tion) . 4 Primarily, such contracts are for service; 5 so far as they are contracts for water as such, they would be contracts for personal property, since the corpus of the water in the canal or other artificial waterworks is, so far as it is private property, personalty. 6 Thus, a contract with a house-supply company in a city sells the householder so many gallons or cubic feet of liquid measured by a meter and is a contract of sale 7 of personal property ; 8 it does not profess to 2 Note by Justice Holmes in 3 law of watercourses; nor is it a pri- Kent's Commentaries, 14th ed., p. 689. vate property right. Accord, Goddard on Easements, 7th 5 Infra, sec. 1324. ed., 1910, p. 87. Supra, sec. 35; infra, sec. 537. 3 Story, J., in Webb v. Portland 7 That is, so far as it is a sale. Mfg. Co., 3 Sum. 189, Fed. Gas. No. Primarily, it is a contract of service 17,322. That a mine-owner may stop rather than sale. Infra, sec. 1324. mine water entering a stream is laid 8 People ex rel. Heyneman v. down as the law of Scotland. Fergu- Blake, 19 Cal. 595, Field, J., quoted son on the Law of Water in Scotland, supra, sec. 35 ; Spring Valley W. W. p. 277 et seq. v. Schottler, 110 U. S. 347, 4 Sup. 4 Infra, sec. 537 et seq., contracts. Ct. Eep. 48, 28 L. Ed. 173, quoted Where the owner of the natural sup- supra, sec. 33; Hesperia etc. Co. v. ply is distributing water to the public, Gardner, 4 Cal. App. 357, 88 Pae. a noncontract duty rests upon him un- 286. Compare Carothers v. Phil. Co., der the rule of compulsory service. 118 Pa. 468, 12 Atl. 314; Ohio Oil Co. (Infra, sec. 1280.) But that has no v. Indiana, 177 U. S. 290, 20 Sup. bearing here, as it arises outside the Ct. Eep. 576, 44 L. Ed. 729, 20 Morr. 63 Ch. 4. NATURAL EESOUECES. (3d ed.) 63 grant a perpetual flow from a natural stream or to give the house- holder a title in the natural source of supply. But irrigation or water-power contracts to receive water from another's canal are, in the West, usually regarded as conferring a title to an interest in the natural source of supply from which the canal heads, and in the transmission canal ; that is, conferring upon the user a part interest in the real estate upon which the supply is dependent. The users receiving water from a dis- tributing system at points far away from streams, and hence not directly claiming upon the natural resource, are nevertheless usually regarded as having, through the intermediate agency of canals or ditches of others, rights in the usufruct of the natural stream on a par with those directly diverting from the natural flow ; having freehold rights in real property in the canal, and in the flow and use of the natural stream from which the artificial flow (however distant) comes. The water user, although contracting for supply from an artificial flow in a distributing canal, is usually regarded as becoming a part owner of the distributing system. This is an important qualification of the rule that a claimant upon an artificial flow is subordinate in ownership to the owner upon the natural resource. By this qualification the former is not merely the recipient by contract of an artificial flow fed by a natural supply the ownership of which is in another, but becomes himself a part owner of the natural source of supply, subordinate to no one in ownership, it seems. This is considered at much length hereafter in the part devoted to the "Distribution of water." 9 (3d ed.) 63. "First Principles" Deduced. The law of watercourses is one of natural streams as natural resources, or natural water supplies. From the foregoing chapters the following "first prin- ciples" of the law of watercourses may be deduced: Min. Rep. 466 ; citing State ex rel. court has confined it to private con- Corwin v. Indiana etc. Co., 120 Ind. tracts, inapplicable to rights of con- 575, 22 N. E. 778, 6 L. R. A. 579; Burners from public sen-ice irriga- People's Gas Co. v. Tyner, 131 Ind. tion companies; holding that such 277, 31 Am. St. Rep. 433, 31 N. E. consumers get no actual ownership in 59, 16 L. R. A. 443, 17 Morr. Min. realty, no "water-right" as a perma- Rep. 481. nent usufruct or interest in a natural 9 Infra, sees. 1324, 1338. The stream, but only a right of service; view .just stated is the one generally thereby placing them on the same prevailing in the West. But since footing as consumers in cities. See the above was written the California infra, sees. 1245, 1260, lb'25 et seq. 64 (3d ed.) Pt. I. FIEST PKINCIPLES. 63 a. The running water of natural streams is, as a corpus, the prop- erty of no one (variously expressed as being in the "negative community," "common," "publici juris," "the property of the public," or "the property of the State in trust for the people"), and is a wandering, changing thing without an owner, like the fish swimming in it or like wild animals, the air in the atmosphere, and the "negative community" in general. 6. The substantial property right recognized by the law is the usufruct of the stream the right to the flow and use of the natural resource, or "water-right" in the natural supply, and this is real property, however obtained. A right of access to the natural resource is essential to the enjoyment of this usufruct. c. Any specific portion of the water severed from the stream and reduced to possession (as in a barrel, tank, ditch, reservoir, or artificial waterworks or structures generally) is private property as a corpus while so held in possession; but the usufruct in the natural resource, and not the corpus of a specific portion of water, is of most importance ; and when the portion that has been reduced to possession escapes or is abandoned, it re-enters the "negative community," and its former owner may not recapture it unless he discharged it from his possession with that intent. And the following corollary: Upon artificial resources or flows, or waste water, priority gov- erns between rival claimants among themselves, but they are all, as respects continuance of supply, subordinate to the owner of the natural supply, with the following exceptions: (1) The owner of the natural resource may become bound to the waste claimants or artificial flow claimants by dedication (where a community has become dependent thereon), or by the rule of compulsory service where the supply is devoted to public use, or by grant or condemna- tion (but not by prescription or estoppel, without special facts and circumstances beyond receipt by the latter of the benefit of the waste or artificial flow) ; (2) Under the usual Western law of dis- tribution of water for irrigation, consumers from ditches, canals, and similar works are (in addition to the public right to share in a public use or service) accorded rights of part ownership in the natural resources involved, by relation back to the natural stream through the intermediate agency of the distributing canal. 64-65. (Blank numbers.) PAKT II. CALIFORNIA AND COLOEADO DOCTEINE8. CHAPTER 5. HISTORICAL REVIEW. TO THE ACT OF 1866. A.. ORIGIN OF THE DOCTRINE OF PRIOR APPROPRIATION IN THE CUSTOMS OF PIONEER MINERS. 5 66. Acquisition of the Western public domain. 67. California before the arrival of pioneers. 68. Mexican law. 69. Discovery of gold in California in January, 1848. 70. Immigration upon the discovery of gold. 71. Customs of the pioneer miners. 72. The customs approved by the legislature. 5 73. Water customs as part of the mining customs. B. DEVELOPMENT OF THE CUSTOMS INTO LOCAL LAW. 74. The questions presented to the courts. 75. The customs and the common law. f 76. The customs and the court. 77. Irwin v. Phillips. 78. Prior rights by appropriation upheld in court. 79. Endeavors to follow and not disregard the common law. 80. The common law departed from. $ 81. The question of common law subordinated. C. THE QUESTION OF FEDERAL PUBLIC LAND LAW. 82. Who was the ultimate proprietor? 83. The pioneers as trespassers against the United States. 84. Spread of the Possessory System. 85. Possessory System not confined to mining. 86. Precarious status of possessory rights on the approach of the Civil War. 87. Revocation of possessory rights by Federal patent. D. THE THEORY OF FREE DEVELOPMENT OF THE PUBLIC LANDS UNDER LOCAL LAW. 88. Unpopularity of the "trespasser" basis of the Possessory System. 89. The theory of a grant with the dignity of a fee. Water Rights 5 (65) 66 (3d ed.) Pt. II. CALIFORNIA -COLORADO DOCTRINES. 66 90. Same. 91. "Excepting the government." E. THE ACT OF 1866. 92. Introductory. 93. Congress and the public domain. 94. The act of 1866. 95. The act explained by Judge Field and other authorities. 96. An enactment of the policy that the waters on public lands were open to free development under local law. 97. Operates as a grant. 98. Only declaratory of the California law. 99. Conclusion. 100-107. (Blank numbers.) A. ORIGIN OF THE DOCTRINE OF PRIOR APPROPRIATION IN THE CUSTOMS OF THE PIONEER MINERS. (3d ed.) 66. Acquisition of the Western Public Domain. The law of prior 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 Territories, viz. : Alaska, Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming. By 1846 the title of the United States was established to the country covering Oregon, Washington, Idaho, and portions of Montana and Wyoming. 1 On July 4, 1848, the Treaty of Guada- lupe Hidalgo 2 with Mexico was proclaimed, ceding to the United States the region now covered by California, Nevada, Utah, and part of Arizona and New Mexico. In 1853 the Gadsden Purchase embraced part of Arizona and New Mexico. 3 Consequently, at the time this history opens, practically all the region west of the 1 "There has been some discussion now issued by that office states that as to the origin of our title to what the title was established in 1846. was known as the Oregon country, The exact basis of our claim has ap- comprising the States of Oregon, parently never been authoritatively Washington and Idaho, and the por- decided." Morris Bien, in 192 North tions of Montana and Wyoming west American Review, 388, for September, of the Rocky Mountains. The ques- 1910. tion was whether our title was de- The General Land Office became a rived from the Louisiana Purchase or part of the Department of Interior directly by discovery and prior pos- March 3, 1849. Ibid. session. As the result of a discus- 2 9 Stats, at Large, 928. sion by the General Land Office in 8 Lindley on Mines, sec. 40. 1898, the map of the United States 67 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 67 Mississippi Valley was a vast, uninhabited, newly acquired Federal property. (3d ed.) 67. California Before the Arrival of Pioneers. California had been, at the beginning of the century, a Spanish missionary terri- tory. That part to which the pioneers came was known to the Mexi- cans as Alta or Upper California, and was regarded as only a set of colonies extending northward from the original settlements in Baja or Lower California, the desert peninsula, which is still Mexi- can territory. 4 The colonies consisted of here and there small set- tlements about the missions of Franciscan monks who had wandered northward from the original Jesuit and Dominican Missions of Baja California. Under the Spanish rule that preceded the Mexican Revolution, these colonies were on the outskirts of civilization, needing but few laws, and little regard being paid to the strict letter of even those. With 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 was adopted and enforced in place of the one which had fallen into disuse. Land had never been, previously to the acquisition of the country by the Americans, of much value. The wealth of the colonists consisted principally in their cattle and horses, which were sold for a trifling sum. During the disorders which characterized the Mexican regime, land can be said to have had scarcely any value at all events, not a value worth the trouble and expense of procuring a perfect title under the colonization laws of Mexico and Spain. No mail facilities were enjoyed long journeys had to be made to the capital of the province, in the midst of civil disorders and revolution, in order to procure a perfect title. Men coujd not always, perhaps 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 obtain a title, in others after having taken only the incipient proceedings, to the practice of taking pos- session, or at least of claiming large tracts of land which had not been surveyed, and the boundaries of which were undefined and even unknown. This system continued until the conquest of the 4 See the volume in the American Commonwealth Series, upon "California," by Josiah Boyce. 68 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 68 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 population ex- cept Indians. 5 (3d ed.) 68. Mexican Law. The region before the conquest, was un- settled and a part of the Mexican public domain, just as, after the cession, it became part of the public domain of the United States. The foundation of the Mexican civil law was, as at common law, the law of riparian rights; but upon the public domain, where there were no riparian proprietors, the Mexican Government held, as it to this day holds, a large power of making grants and con- cessions. Little had been done under this power, however the writer knows of no California water-rights traced back to any special private grant or concession of waters from the Mexican Government. There had been, in fact, no law in force to inter- fere with the California miners helping themselves to the waters they needed ; for the region, as a whole, was uninhabited. A minor feature of the public land system of Mexico has, how- ever, in the case of the city of Los Angeles, come down to the present day. Under the Mexican law, agricultural settlements or "pueblos" located on public land had ipso facto a concession of the waters on the surrounding public lands, so far as necessary for the general supply of the settlement. This right in the pueblo was superior to that of any riparian proprietors ; because any ripar- ian proprietors, perforce, acquired private title to public riparian land subsequent to the establishment of the pueblo, since the pueblos 5 Preface by Judge Bennett to the present day the peninsula is overrun first volume of California Reports. with a heavy growth of cactus, and "Previous to the occupation of the probably always has been. The part of the country known as the Gold stories of the old Mexican and Span- Region, by the Americans, no at- ish irrigation here are much exag- tempts were made to settle there, as gerated. it was infested by wild Indians." Speaking of California at the time, Yale on Mining Claims and Water it was said: "The country was very Rights, p. 23. sparsely populated indeed, except by Concerning the ancient Mexican a few families at the various Mis- colonization in Baja California, the sions." Memoirs of General W. T. writer of this book, on a trip across Sherman, p. 28. Speaking of Baja the middle of the peninsula a few California: "There were few or no years ago, learned of evidences of ir- people in Lower California, which is rigation on a very small scale in the a miserable, wretched, dried-up penin- vicinity of the Missions, but at the eula." Ibid, p. 38. 68 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 69 colonized uninhabited regions. 6 The pueblo right prevailed because it was acquired on public land before there were any riparian proprietors. The city of Los Angeles has, after much litigation, been held to succeed to the rights of the pueblo, from which it grew, to a public water supply from the Los Angeles River which runs through it. The extent of the city's right of use under this claim is now settled to include the entire flow of the river, which may be used in parts of the city either within or outside the original pueblo limits. 7 This, however, was distinctly public land law; for the basic Mexican law was the law of riparian rights as at common law. Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Vernon Irr. .Co. v. Los Angeles, 106 Cal. 237, 39 Pac. 762; Los Angeles v. Los Angeles etc. Co., 152 Cal. 645, 93 Pac. 869, 1135. Af- firmed in 217 U. S. 217, 30 Sup. Ct. 452, 54 L. Ed. 736. 1 City of Los Angeles v. Hunter; Same v. Buffington (1909), 156 Cal. 603, 105 Pac. 755. This pueblo right is set forth in Lux v. Haggin: "By analogy, and in conformity with the principles of that decision [Hart v. Burnett, 15 Cal. 530], we hold the pueblos had a species of property in the flowing waters within their limits, or a cer- tain right or title in their use, in trust, to be distributed to the common lands, and the lands originally set apart to the settlers, or subsequently granted by the municipal authorities. .... Each pueblo was quasi a public corporation. By the scheme of the Mexican law it was treated as an en- tity or person, having a right as such, and, by reason of its title to the four leagues of land, to the use of the waters of the river on which it was situated, while, as a political body, it was vested with power, by ordinance, to provide for a distribution of the waters to those for whose benefit the right and power were conferred From the foregoing it appears that the riparian proprietor could not ap- propriate water in such manner as should interfere with the common use or destiny which a pueblo on the stream should have given to the waters; and, semble, that the pueblos had a preference or prior right to con- sume the waters, even as against an upper riparian proprietor." Lux v. Haggin, 69 Cal. 255, 10 Pac. 674. By the act of 1850, page 155, it was provided that the city of Los Angeles succeeded "to all the rights, claims and powers of the Pueblo de Los Angeles in regard to property." The pueblo right of Los Angeles was considered in another case, Ver- non Irr. Co. v. Los Angeles, 106 Cal. 237, 39 Pac. 762, where it was said that the Mexican law regarded the waters as public property and held for the benefit of the inhabitants and by the pueblo (where there was one) to induce settlement; also in Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585, to the same effect, and further holding that the pueblo right of Los Angeles grows with the growth of the city. Los Angeles v. Pomeroy went to supreme court of the United States under the name o.'r Hooker v. Los Angeles, 188 U. S. 314, 23 Sup. Ct. Rep. 395, 63 L. R. A. 471, 47 L. Ed. 487, where the pueblo right was upheld against riparian proprietors, even those claim- ing land under Mexican grants. This was affirmed in Devine v. Los Angeles 202 U. S. 313, 26 Sup. Ct. Rep. 652, 50 L. Ed. 1046, on the ground that the controversy involved no federal question. Likewise in Los Angeles etc. Co. v. Los Angeles, 217 U. S. 217, 30 Sup. Ct. Rep. 452, 54 L. Ed. 736 (1910), affirming S. C., 152 Cal. 645, 93 Pac. 869, holding further that the rights of pueblos against riparian owners is solely a question of local law. In Los Angeles v. Hunter, Same v. 70 (3ded.) Pt. II. CALIFORNIA -.COLORADO DOCTRINES. 69 We have considered this at length in later chapters. 8 We refer to it here as showing that, because substantially the whole region was public domain of Mexico, there was no occasion even under Mexican law to apply the law of riparian rights, there being no riparian proprietors; and, there being no private riparian lands to which to restrict the use of water, no such restriction prevailed. What law had been enforced at the time the pioneers settled in Cali- fornia centered chiefly about the pueblos, of which none existed in the mining regions ; and hence if continued in force, would have put little impediment in the way of the miners helping themselves to the waters they needed. Whatever questions could have arisen under Mexican law were public land questions, just as they became when, in the following years, they arose under American sover- eignty. 9 (3d ed.) 69. Discovery of Gold in California in January, 1848. There have been gold excitements since, but none as great nor as permanent in importance as that following the discovery of gold in California. Only very old-timers, schoolboys then, are left to remember it. A military expedition had landed at Monterey, California, not many months before and was holding possession Buffington (1909), 156 Cal. 603, 105 Rep. 652, 50 L. Ed. 1046; Los Angeles Pac. 755, the matter was said to be v. Hunter, Same v. Buffington (1909), fully at rest, that the city's right ex- 156 Cal. 603, 105 Pac. 755. See tended to the whole flow" of the Los Shaw, J., concurring in Miller v. Bay Angeles River, for use either within Cities W. Co., 157 Cal. 256, 107 Pac. or without the original pueblo limits, 115. See, also, Anaheim W. Co. v. and included the underground waters Fuller, 150 Cal. 327, 88 Pac. 978, 11 of the San Fernando Valley, in which L. R. A., N. S., 1062; Fellows v. Los the river has its source as in a quasi Angeles, 151 Cal. 52, 90 Pac. 137. subterranean lake. 8 Infra, sees. 685 et seq., 1026. The following is a list of the cases 9 Regarding Mexican law, see Lux involving the Los Angeles pueblo v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 right : Feliz v. Los Angeles, 58 Cal. Pac. 674 ; Boquillas etc. Co. v. Curtis, 73; Elms v. Los Angeles, 58 Cal. 80; 11 Ariz. 128, 89 Pac. 504, S. C., 213 Lux v. Haggin, 69 Cal. 255, 4 Pac. U. S. 339, 29 Sup. Ct. Rep. 493, 53 919, 10 Pac. 674; Vernon Irr. Co. v. L. Ed. 822; Gutierres v. Albuquerque Los Angeles, 106 Cal. 237, 39 Pac. etc. Co., 188 U. S. 545, 23 Sup. Ct, 762; Los Angeles v. Pomeroy, 124 Rep. 338, 47 L. Ed. 588; De Boca v. Cal. 597, 57 Pac. 585; Los Angeles Pueblo, 10 N. M. 38, 60 Pac. 73. The v. Los Angeles etc. Co., 152 Cal. 645, quotations from these cases given in 93 Pac. 869, affirmed in 217 U. S. the preceding editions of this book 217, 30 Sup. Ct. Rep. 452, 54 L. Ed. are here omitted because of the fuller 736 ; Hooker v. Los Angeles, 188 U. S. presentation of the civil law hereafter 314, 23 Sup. Ct. Rep. 395, 47 L. Ed. given. Infra, sees. 685 and 1025 at 487, 63 L. R. A. 471; Devine v. Los seq. Angeles, 202 U. S. 313, 26 Sup. Ct. 70 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 71 for the United States. An American, John A. Sutter, made his way inland and was building a sawmill on the American River where it joins the Sacramento, when his partner, James W. Mar- shall, found gold in the scourings of the mill-race. Sutter sent specimens to Monterey to get a pre-emption title to the land from the United States military commander, as the only representative of the American government in the new region. Title 'was denied from lack of authority. The specimens were shown to the com- mander's adjutant, W. T. Sherman, then a lieutenant, who con- firmed the character of the mineral. The discovery was made in January, 1848, and almost contemporaneously the Mexican War came to a close and the region was ceded by Mexico to the United States by the treaty of Guadalupe Hidalgo, proclaimed July 4, 1848. 10 (3d ed.) 70. Immigration upon the Discovery of Gold. General Sher- man says in his writings that he thought little of it at the time, but when many years had passed he wrote, ' ' That gold was the first discovered in the Sierra Nevadas, which soon revolutionized the whole country and actually moved the whole civilized world." As the spring and summer of 1848 advanced, reports came faster and faster from gutter's sawmill of fabulous discoveries, and spread throughout the land. Everybody was talking of gold, until it assumed the character of a fever. Soldiers began to de- sert; citizens were fitting out trains of wagons and pack-mules to go to the mines where men earned fifty, five hundred, and thou- sands of dollars per day ; and for a time it seemed as though some- body would reach solid gold. Some of this gold began to come to Yerba Buena in trade, and to disturb the value of merchandise, particularly of mules, horses, tin pans, and articles used in mining. Before another year had passed, the stream of gold-seekers at- tracted by the discovery filled the mountains with a hundred thou- sand people, and still increased. Crowded steamers began to round the Horn," and later brought people who crossed the Isthmus of Panama. Emigrant trains of families who could not pay steamer passage crossed the plains in wagons, braving starva- 10 9 Stats, at Large, 928. The first arrived February 28, 1849. 72 (3d ed.) Pt. EL CALIFORNIA - COLORADO DOCTRINES. 71 tion, Indians, and the elements. The rush to Cripple Creek, Klon- dike, Tonopah and Goldfield all together did not approach it. There were, during the first year, no government, no law, nor any private landowners. The region was a vacant wilderness. The American military officers on February 12, 1848, declared the Mexican law abrogated; but otherwise the small military force was inadequate and inactive. Colonel Mason, in command, had simply said, in general conversation, "This is public land and the gold is the property of the United States; all of you here are trespassers, but as the Government is benefited by your getting out the gold, I do not intend to interfere." (3d ed.) 71. The Customs of the Pioneer Miners. The miners ac- cordingly, from lack of other means of keeping order, held mass meetings in each locality and adopted district organizations by which they agreed to be governed. The regulations were numer- ous, as each mining district had its own laws, but frequently one set of laws was adopted for the whole county. 12 The essentials of these regulations were everywhere similar. Mass meetings were held, officers appointed, including sheriffs and recorders, and names adopted, "sensible, poetical, and ridiculous, the last predominating." Localities had such names as Henry's Dig- gings, Slag Gulch, Indian Diggings, Fiddle Town and Whisky Hill, the last supposed to be at or near the place pictured by Bret Harte in "The Luck of Roaring Camp"; yet as a whole, the population was of young men of good character, just enter- ing the world to seek fortune. The rules covered a wide field of law, but were devoted spe- cially to property rights. Their fundamental principle held the natural resources free to all, the first possessor being protected; the rule "first come first served" was applied by common ac- ceptance. The right to mine, first of all in importance, was pro- tected in the first possessor of the mining ground, and that has grown into the system of mining law which we have to-day. All 12 There were about five hundred each in Arizona, Idaho and Oregon, districts in California about 1860, following in the steps of California, two hundred in Nevada, one hundred 72 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 73 rights were declared upon the basis of priority of discovery, loca- tion and appropriation. 13 These customs, it should be repeated, grew up among the miners upon the public domain, and were not rules that the lawyers originated among themselves. Lawyers in large numbers, where the camps would admit them, came, as they still come, to new min- ing camps, and some of the most prominent names in the history of the State are of lawyers who started practice in the pioneer mining camps. But the rough-and-ready spirit of mining camps carries them along with it. The lack of facilities for reference and study forces them to depend on their own argument adapted to their surroundings more than upon precedent. (3d ed.) 72. The Customs Approved by the Legislature. Free min- ing, free soil and free water, under self-government, thus sprang up over night, in which Congress had no part, although the region was now American soil, and Federal property. "I apprehended, if these territories were left without a government for another year, and especially California, they might be lost to the Union," said President Polk in December, 1848. He added that "in the course of the next year a large population would be attracted to California by its mineral wealth and other advantages; that among the emigrants would be men of enterprise and adventure, men of talents and capital; and that finding themselves without a government or the protection of law, they would probably or- ganize an independent government, calling it California or Pacific Republic, and might endeavor to induce Oregon to join them." 14 The situation was met by the hurried admission of the State into the Union. Under the lead of the military officers, a loyal State organization was effected and California was admitted in September, 1850, without having had preliminary status or gov- ernmental organization as a territory. The Act of Admission contained the usual clause that the State shall never interfere with the primary disposal of the public domain, but the new State lost no time in giving its full approval to this universal occupa- 13 Concerning the customs of miners Eights, cc. VII, VIII; Lindley on and origin of the law of appropria- Mines, sec. 40 et seq. tion of water, see an interesting arti- 1* Diary of James K. Polk, pub- cle in 1 Michigan Law Review, 91. lished by A, C. McClwg & Co., See, also, Yale on Mining and Water Chicago. 74 (3d ed.) Pt. H. CALIFORNIA - COLOEADO DOCTRINES. 73 tion of the public lands. In 1851, at the instance of Stephen Field, then a young member from Yuba County (and later Chief Justice of California and Justice of the United States supreme court), the first California legislature passed the following stat- ute: 15 "In actions respecting mining claims, proof shall be ad- mitted of the customs, usages or regulations established and in force at the bar, or diggings embracing such claim; and such customs, usages or regulations, when not in conflict with the consti- tution and laws of this State, shall govern the decision of the ac- tion. " 16 In this way, by customs established by themselves, and with the sanction of the State legislature when organized, the pioneers appropriated to themselves the mines and forests and waters and other things of the region. (3d ed.) 73. Water Customs as Part of the Mining Customs. For, as the use-of large quantities of water became (after the advent, in the second or third year, of "sluicing" and similar methods) essential to mining operations, it became one of the mining cus- toms or regulations that the right to a definite quantity of water, and to divert it from streams or lakes, could be acquired by prior appropriation. Historically, the law of appropriation of water is merely a branch of mining law. It was only an extension of the same rule as that by which possession of mining claims was recognized. 17 is Civil Practice Act of April 29, amazing the amount we move and it 1851. sec. 621. now see. 748 of the astonishes our neighbors. A lot of Code of Civil Procedure (with slight them are looking out for sidehill verbal changes). diggings below us and will try the 16 This statute was early copied in same process. Anderson says it will almost all the other Western States; be a good idea to extend our ditch ' e. g., Idaho: Riborado'v. Quang Pang and sell water to the miners who etc. Co., 2 Idaho, 136 (144), 6 Pac. might want to use it, but I don't 125; Nevada: Stats. 1861, p. 21, sec. see what right we have got to it more 77; Mallett v. Uncle Sam Min. Co., than anybody else. Anyway he has 1 Nev. 188, 90 Am. Dec. 484, 1 Morr. put a notice at the head of the ditch Min. Rep. 17. Utah: Rev. Stats. claiming all the water it will hold, 1898, sec. 3521. and as there is no law in the case he 17 See statement by reporter in says he will make a law out of the Titcomb v. Kirk, 51 Cal. 289, 5 Morr. precedent." Diary of a Forty-Niner, Min. Rep. 10. edited by Chauncey L. Canfield, who The following is from an old diary says in a note, "The first claim to of one of the pioneer miners recently water-rights on record in Nevada published. Under date of October 19, County." This passage is interesting, 1850, this diary says: "We got the though possibly not authentic. The ditch repaired and the water turned county records were destroyed by fire on the flat by Thursday and have in 1856. been running off the top dirt. It's 74 Ch. 5. HISTORICALTO THE ACT OF I860. (3d ed.) 75 The fact probably is that, since water customs did not arise until the second or third year (the first year being the stage of pan and shovel, rocker and "long torn," not requiring diversion), the statute below quoted adopting the general common law was already in existence. 18 No special importance attaches to these relative dates, however; no point has ever been made of them, for reasons hereafter appearing. B. DEVELOPMENT OF THE CUSTOMS INTO LOCAL LAW. (3d ed.) 74. The Questions Presented to the Courts. When the State courts were organized and received the questions growing out of these conditions (the first case did not reach the supreme court until 1853), the necessity was thrown upon the court of giving legitimacy in some way to these things that had tran- spired among the miners and were so firmly established through- out the population then existing in the State. There was an immediate conflict of contentions. This conflict existed along two distinct grounds in the water cases. One was of the relation of these new rules to the common law, which had been adopted by the statute of April 13, 1850, as follows: "The common law of England, so far as it is not repugnant to or in- consistent with the constitution of the United States, or the con- stitution or laws of this State, is the rule of decision in all the courts of this State." 19 The other was of the relation of the 18 That statute was passed in April, 1852: Kelley v. Natoma W. Co., 6 1850, ratified on the admission of the Cal. 105, 1 Morr. Min. Eep. 592; State in September, 1850, while the Crandall v. Woods, 8 Cal. 137, 1 Morr. first water ditch was probably not Min. Eep. 604; Parke v. Kilham, 8 built until the end of that year. In Cal. 78, 68 Am. Dec. 310, 4 Morr. the first ten volumes of the California Min. Eep. 522; Humphreys v. McCall, Eeports, the following are the dates 9 Cal. 59, 70 Am. Dec. 621; Moke- of the early ditches involved in the lumne Hill Co. v. Woodbury, 10 Cal. cases: 185. Fall of 1850: Kidd v. Laird, 15 Cal. , 163, 70 Am. Dec. 472, 4 Morr. Min. 3es - Eep. 571; Nevada W. Co. v. Powell, The first attempt at quartz mining 34 Cal. 109, 91 Am. Dec. 685, 4 Morr. was not until 1852 (Whitney's Geology Min. Eep. 253. See the date of the of California, p. 224). The first ditch given in the diary just above hydraulic mining was not tried until quoted. 1853 (Browne's Mineral Eesources of 1851: McDonald v. Bear E. Co., 13 California, p 116). Cal. 226, 1 Morr. Min. Eep. 626; no _. Maeris v. Bicknell, 7 Cal. 261, 68 Am. _ " Stats - }JfJ P- 219 5 now Political Dec. 257, 1 Morr. Min. Eep. 601; Code ** 4468 - White v. Todd's Valley Co., 8 Cal. This adoption of the common law 44? ; Ortman v. Dixon, 13 Cal. 37. was by the constitutional convention 76 (Sded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 75,76 appropriators to the United States government, the landowner of * the region which the pioneers were appropriating to themselves without Federal authorization; for the act admitting California into the Union had contained the usual clause that the State shall never interfere with the primary disposal of the public domain within its limits. The first was a question of local law; the second, a question of Federal public land law. Side by side these questions have ever since run through the history of the law of waters in the West, at different periods the one and then the other assuming the more importance. In the beginning, of which we are now writing, it was the second, the relation to the United States, which loomed largest. The other question, of the relation to the common law, was never serious then, being soon disposed of by merging it into the second question, as we shall quickly see. (3d ed.) 75. The Customs and the Common Law. The water cus- toms, based upon exclusive rights by priority of appropriation, were opposed to the common-law system of riparian rights. 20 They did not follow the rules of riparian rights because, in the first place, the miners, left so largely to themselves, did not know those rules. The miners were of all nationalities, from places where many different systems of law prevailed, and went into a wilderness where the law was not represented. Important also was the necessity of carrying the water far from streams, and muddying it with mining debris. But the main reason was that the law of riparian rights is a system for settled regions of private landowners, while there was here a new and uninhabited region in which no private landowners existed. Instead of finding the streams inclosed by private land preventing access to them, all was public land, as free and open as the air. (3d ed.) 76. The Customs and the Court. As early as the third volume of the California Reports the matter was before the su- preme court, but the court was not yet ready to declare this before the State's admission into fhe schedule of the constitution continued Union, which did not occur until all existing statutes in force. September of the same year. The 20 Infra, sec. 666 et seq. 77 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 77 custom concerning the use of waters lawful. 21 The trial judge did adopt it as the basis of his charge. But the supreme court said: "The rule laid down by the court below, while it is a de- parture from all the rules governing this description of property, would be impracticable in its application, and we think it much safer to adhere to known principles and well-settled law, so far as they can be made applicable to the novel questions growing out of the peculiar enterprises in which many of the people of this State are embarked." This case of Eddy v. Simpson is in- teresting as nevertheless foreshadowing the doctrine which after- ward became the rule of the court, that prior possession of water on public land gives the exclusive right to its use; and as showing the difficulties the court met in adjusting itself to the new condi- tions arising out of the occupation by the pioneers of the great, open, public domain. 22 (3d ed.) 77. Irwin v. Phillips. The next case before the California court succeeded in having the principle of exclusive right by prior appropriation of water on the public lands fully recognized and accepted. This case, Irwin v. Phillips, 5 Cal. 140, 23 decided in 1855, is always cited as the original precedent establishing the rule of appropriation. The case was between a canal owner who had diverted water from the public land, and a miner who had later located on public land from which the stream had been diverted. The opinion is of sufficient importance to be given in full. 24 The court said (per Heydenfeldt, J.) : 25 "The several assignments of error will not be separately con- sidered, because the whole merits of the case depend really on a single question, and upon that question the case must be decided. 21 Eddy v. Simpson, 3 Cal. 249, 58 trinsic difficulties in the subject itself Am. Dec. 408, 15 Morr. Min. Eep. 175. that it is almost impossible to settle 22 The difficulties in the way of the satisfactorily, even by the application court caused the court later in a case to them of the abstract principles of involving the diversion of water to re- justice. Yet we are compelled to de- mark in Bear River Water Co. v. New eide these cases, because they must be York Min. Co., 8 Cal. 327, at 333, 68 settled in some way, whether we can Am. Dec. 325, 4 Morr. Min. Rep. 526: say after it is done that we have given "The business of gold mining was not a just decision or not." only new to our people, and the cases 23 63 Am. Dec. 113, 15 Morr. Min. arising from it new to our courts, and Ren. 178. without judicial or legislative prece- 24 The italics are ours. dent, either in our own country or in 25 Murray. C. J., concurred, though that from which we have borrowed he dissented in Conger v. Weaver, our jurisprudence; but there are in- infra, sec. 89. 78 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 77 The proposition to be settled is whether the owner of a canal in the mineral region of this State, constructed for the purpose of supplying water to miners, has the right to divert the water of a stream from its natural channel, as against the claims of those who, subsequent to the diversion, take up lands along the banks of the stream for the purpose of mining. It must be premised that it is admitted on all sides that the mining claims in controversy, and the lands through which the stream runs and through which the canal passes, are a part of the public domain, to which there is no claim of private proprietorship; and that the miners have the right to dig for gold on the public lands was settled by this court in the case of Hicks et al. v. Bell et al., 3 Cal. 219. 26 "It is insisted by the appellants that in this case the common- law doctrine must be invoked, which prescribes that a watercourse must be allowed to flow in its natural channel. But upon an examination of the authorities which support that doctrine, it will be found to rest upon the fact of the individual rights of landed proprietors upon the stream, the principle being both at the civil and common law that the owner of lands on the banks of a water- course owns to the middle of the stream, and has the right in virtue of his proprietorship to the use of the water in its pure and natural condition. In this case the lands are the property either of the State or of the United States, and it is not necessary to decide to which they belong for the purposes of this case. It is certain that at the common law the diversion of watercourses could only be complained of by riparian owners, who were deprived of the use, or those claiming directly under them. 27 Can the ap- pellants assert their present claim as tenants at will? To solve this question it must be kept in mind that their tenancy is of their creation, their tenements of their own selection, and subsequent, in point of time, to the diversion of the stream. They had the right to mine where they pleased throughout an extensive region, and they selected the bank of a stream from which the water had been already turned, for the purpose of supplying the mines at another point. "Courts are bound to take notice of the political and social con- dition of the country which they judicially rule. In this State 20 Note the way this is put. The the land being public land, neither court says it, itself, settled the right litigant was a landowner, and hence to mine on public land. And that is neither could claim to be a riparian just what happened, as time went on. proprietor, not owning the soil. 27 The court here has in mind that, 77 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 79 the larger part of the territory consists of mineral lands, nearly the whole of which are the property of the public. No right or intent of disposition of these lands has been shown either by the United States or the State governments, and with the exception of certain State regulations, very limited in their character, a sys- tem has been permitted to grow up by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region has been tacitly assented to by the one gov- ernment, and heartily encouraged by the expressed legislative policy of the other. If there are, as must be admitted, many things connected with this system, which are crude and undigested, and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res judicata. Among these the most important are the rights of miners to be protected in the possession of their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly arti- ficial works have conducted them for miles over mountains and ravines, to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without development. So fully recognized have become those rights, that, without any specific legislation conferring or confirming them, they are alluded to and spoken of in various acts of the legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the lawmakers ; as, for instance, in the Revenue Act ' canals and water- races ' are declared to be property subject to taxation, and this when there was none other in the State than such as were devoted to the use of mining. Section 2 of article 9 of the same act, pro- viding for the assessment of the property of companies and asso- ciations, among others mentions 'dam or dams, canal or canals, or other works for mining purposes. ' This simply goes to prove what is the purpose of -the argument, that however much the policy of the State, as indicated by her legislation, has conferred the priv- ilege to work the mines, it has equally conferred the right to divert the streams from their natural channels, 28 and as these two rights stand upon an equal footing, when they conflict, they must be 28 Bear in mind that it is of streams is speaking; it started with that as a on the public domain that the court premise. 80 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 78 decided by the fact of priority, upon the maxim of equity, 'Qui prior est in tempore, potior est in jure.' The miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights, which have an equal equity, on account of an equal recognition from the sovereign power. If it is upon a stream, the waters of which have not been taken from their bed, they cannot be taken to his prejudice; but if they have been already diverted, and for as high and legitimate a purpose as the one he seeks to accomplish, he has no right to complain, no right to interfere with the prior occupation of his neighbor, and must abide the dis- advantages of his own selection. "It follows from this opinion that the judgment of the court below was substantially correct, upon the merits of the case pre- sented by the evidence, and it is therefore affirmed. ' ' (3d ed.) 78. Prior Rights by Appropriation Upheld by the Courts. This is the pioneer Western decision recognizing the doctrine. The rule of prior appropriation of water on public land was thus established independently of legislation. The act of April, 1850, had adopted the common law as a general rule of decision in the State, and the act of 1851 had adopted the customs of miners where not in conflict with the laws of the State, and an act (men- tioned in the opinion) had taxed ditches and canals; but closer than this there was nothing. Nor were the courts aided by direct legislation until the act of the Federal Congress of 1866. The case treated together both the questions to which we have referred; that is, the question of local law involving riparian rights, and the question of Federal public land law. The common law was held inapplicable, not because "unsuited to public wel- fare," but because there was no private land on the stream. Adopting the argument of counsel (afterward judge of the supreme court), Baldwin, the court expressly excluded riparian rights from a consideration of the case because it was all vacant public land. The intention was, said a contemporary writer, 1 to provide an entirely new system wherever the mining customs prevailed (which customs prevailed on what was then all public domain). But at the same time it must be carefully noted that it was premised in the case as "admitted on all sides that the lands through which i Yale on Mining Claims and Water Rights, p. 161. 79 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 81 the stream runs are a part of the public domain, to which there is no claim of private proprietorship," and "if it is upon a stream the waters of which have not been taken from their bed, they cannot be taken to his [meaning the private landowner's] preju- dice," which exception has since overshadowed the rest, in Cali- fornia. The case having thus held riparian rights not involved because there was no private, but only public, land on the stream, then went on to hold for the public land that both the United States and State, whichever may be the owner, had permitted "free and unrestrained occupation of the mineral region," so as to give the customs the force of "res judicata" and thereby "conferred the right to divert the streams" ; and thus the court merged the whole matter into a question of public land law. 2 (3d ed.) 79. Endeavors to Follow and not Disregard the Common Law. Although the question of Federal public land law became controlling, there was also difficulty in the position taken as a question of local State law. The court was in some quarters accused of judicial legislation because the legislature had adopted the common law as the gen- eral rule of decision by the statute already quoted. Chief Justice Murray had first opposed the recognition of the doctrine of ap- propriation at all, dissenting in Conger v. Weaver; 3 and when overruled by the rest of the court, acquiesced only on the ground (now the basis of the "Colorado doctrine" 4 ) that the statute had not adopted the common law because unsuited to conditions. 5 2 A very concise statement of the recognize them. In this way the rule situation under which Irwin v. Phil- of appropriation became established lips was decided is given in the recent in the Pacific States, in opposition to case of Meng v. Coffey, 67 Neb. 500, the common law, with reference to 108 Am. St. Rep. 697, 93 N. W. 713, streams or bodies of water which 60 L. R. A. 910, saying that govern- wholly ran through or were situated ment and law were not yet established, upon ihe public lands of the United there was no agricultural population, States." and were no riparian owners, and 3 6 Cal. 548, 65 Am. Dec. 528, 1 streams could be put to no use ex- Morr. Min. Rep. 594. cept for mining. "It was a crude 4 Infra, sec. 167. attempt to preserve order and the gen- c Hoffman v. Stone, 7 Cal. 47, 4 eral peace, and to settle customary Morr. Min. Rep. 520; Crandall v. rights among a body of men subject Woods, 8 Cal. 136, 1 Morr. Min. Rep. to no law, under which so many and 604. See, also, Hill v. King, 8 Cal. so valuable rights arose that when the 338, 4 Morr. Min. Rep. 533. law stepped in it was obliged to Water Rightg 82 (3d ed.) Pt. II. CALIFORNIA - COLOKADO DOCTRINES. 79 His opinions were, however, the only ones at that time taking that ground, and it was regarded by some as an admission by the chief justice that the court had simply entered into judicial legislation. 6 Such criticism, whether now appearing sound or not, at that day, when the matter was all new and untried, induced in some of the judges a desire to reconcile their decisions to the common law, and not to acknowledge a departure from it. For example, in Conger v. Weaver the court said: "In the decisions we have heretofore made upon the subject of private rights in the public domain, we have applied simply the rules of the common law. We have found that its principles have abundantly sufficed for the de- termination of all disputes which have come before us, and we claim that we have neither modified its rules, nor have we attempted to legislate upon any pretended ground of their insufficiency." The first explanation to this effect rested upon the merger that had been made with the question of the government title. Conger v. Weaver, below quoted, 7 said it had applied simply the common- law rule in respect to presumption of title of mere possessors on a third person's (the government's) land, or water, one against the other, 8 and, at the same time, against the government itself as landowner, estoppel by conduct, and grant of right conclusively presumed upon equitable grounds to bind the United States, being matters with which we shall find the subsequent history having much to do; here mentioned only because they were then said to be applications of the common law. 9 (It may be that, applied to ordinary private landowners, such arguments would not have disturbed the common law ; but the United States was not an ordi- nary landowner, but a very extraordinary one, owning the whole State ; and when applied to such a case, a new law between the citi- 6 In Yale on Mining Claims and court in the days of its early organi- Water Rights, page 129, the learned zation." author says: "The complaint of the 7 Infra, sec. 89. supreme court was, in the opinion of 8 See infra, sees. 246, 627. some of its members, that they were 9 The leading authority upon inin- compelled to take the place of the ing rights holds that certain mining legislature in framing rules in regard rights arising out of the pioneer to water-rights. This was undoubt- Possessory System are not in deroga- edly the case; the only rule adopted tion of the common law. (Lindley by the legislature touching the sub- on Mines, sees. 535 et seq., 568, speak- ject was the adoption of the common ing of the theory of the extralateral law as the rule of decision, by the right in mining, and saying: "Instead act of April, 1850. It was, therefore, of being in derogation of the common as the chief justice said, left to the law, this class of grants is in absolute courts, and this can be admitted with- harmony with it." Sec. 568.) out injustice to the members of the 80 Ch. 5. HISTORICALr TO THE ACT OF 1866. (3d"ed.) 83 zens on the public lands was made in practice concerning waters. Any consistency with the common law upon such arguments was remote, while the inconsistency in detail was immediate.) A second ground of reconciling the rules of water appropriation to the common law appeared later. The common law of riparian rights regards all riparian proprietors (all landowners upon a stream's banks) as upon an equal footing, their rights being cor- relative or adjustable for their common benefit, refusing to recog- nize a right in anyone by priority, and giving each a reasonable use of the stream for his own land at any time. 10 In some early California cases the court argued that the rights of an appropriator were likewise correlative to those of later users, so as not to be independent or exclusive, following out to some extent the policy of Conger v. Weaver that the common law had not been departed from. This did not prevail, however. It is considered at some length hereafter. 11 (3d ed.) 80. The Common Law Departed from. Despite these few early attempts to reconcile the doctrine of appropriation to the common law, the consensus of opinion has, as to water-rights at all events, long admitted that the doctrine of prior right by appro- priation is in derogation of the common law 12 (though there has never, so far as the writer has found, been any attempt to nar- rowly construe the subsequent statutes on that account). In the first case dealing with water-rights the California court, as already quoted, said that the rule "is a departure from all the rules gov- 10 See infra, sees. 310, 739. True, of point of diversion. (Kidd v. there were some earlier English de- Laird, 15 Gal. 161, 76 Am. Dec. 472, cisions favoring the doctrine of prior 4 Morr. Min. Rep. 571. See infra, appropriation (infra, sees. 666-669), see. 496.) but the pioneer California court re- 12 Lux v. Haggin, 69 Cal. 255, 10 f erred to them only once, and then Pac. 674, saying: "The doctrine of only to disclaim reliance upon them, in 'appropriation,' so called, is not the Hill v. King, 8 Cal. 336, 4 Morr. Min. doctrine of the common law." Atchi- Rep. 533. son v. Peterson, 87 U. S. 507, 22 L. 11 Infra, sec. 310 et seq. Ed. 414, 1 Morr. Min. Rep. 583; It may be noted that in some fea- Basey v. Gallagher, 87 U. S. 670, 22 tures the law of appropriation never- L. Ed. 452, 1 Morr. Min. Rep. 683; theless clearly did borrow from the Jennison v. Kirk, 98 U. S. 453, 25 L. common law. Thus was early bor- Ed. 240, 4 Morr. Min. Rep. 504; rowed the principle that the right is Yale on Mining Claims and Water solely usufructuary (Eddy v. Simp- Rights, 129, 137; Pomeroy on Ripa- son, 3 Cal. 249, 58 Am. Dec. 408, 15 rian Rights, sec. 20. See infra, sec. Morr. Min. Rep. 175. See infra, see. 180 et seq., views of the supreme court 276), and the rule permitting change of the United States. 84 (3ded.) Pt.II. CALIFOENIA - COLOEADO DOCTRINES. 80 erning this description of property," 13 and in other early cases said that the adoption of it was ' ' an innovation upon the old rules of law upon this subject," 14 and "without judicial or legislative precedent, either in our own country, or in that from which we have borrowed our jurisprudence, ' ' 15 and in the same case said : "In these mining cases we are virtually projecting a new system." Mr. Yale said: "In some instances, as in the case of water-rights, the courts departed from the rules of the common law, which, under the general law of the State, was the rule of decision. ' ' 16 To-day this is practically the universal view, and we may accept Professor Pomeroy 's conclusion : ' ' There are undoubtedly some dicta to be found in a few of the California cases which seem to assume or to suppose that the conclusions reached by the court were in agreement with the common-law doctrines. These dicta differ widely from the general course of reasoning pursued by the State judges, and especially from that adopted by the United States supreme court; and they are, as it seems to me, utterly irrecon- cilable with many subsequent decisions, establishing more special rules, made by the State and the Federal courts." 17 13 Eddy v. Simpson, 3 Cal. 249, 58 Am. Dec. 408, 15 Morr. Min. Eep. 175. 14 Crandall v. Woods, 8 Cal. 136, at 142, 1 Morr. Min. Rep. 604. is Bear Elver W. Co. v. New York M. Co., 8 Cal. 327, at 333, 68 Am. Dee. 325, 4 Morr. Min. Eep. 526. Likewise Murray, C. J., in Hoffman v. Stone, 7 Cal. 49, 4 Morr. Min. Eep. 520. 16 Yale on Mining Claims and Water Eights, p. v. See counsel arguing in Fleming v. Davis (1872), 37 Tex. 173, -with regard to Con- ger v. Weaver. Also with, regard to Conger v. Weaver, it is said in Kin- ney on Irrigation: "It seems strange that the early California decisions re- specting water-rights, which are di- rectly opposed to the common-law rules respecting the same, as univer- sally understood and expounded by the courts of England and of the United States, should be based upon 'one favorite and much indulged doe- trine' of the common law itself the doctrine of presumption. Yet, in spite of the seeming inconsistency, such is the fact." (Kinney on Irriga- tion, p. 168.) 17 Pomeroy on Eiparian Eights, p. 21. Compare, however, the following: "When the pioneers of 1849 reached this State, they found no laws in force governing rights to take waters from surface streams for use on non- riparian lands. Yet it was found that the principles of the common law, although not previously applied to such cases, could be adapted thereto, and were sufficient to define and protect such rights under the new conditions." Shaw, J., in Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Eep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. E. A. 236. See, also, Shaw, J., in Duckworth v. Watsonville Co., 150 Cal. 520, 89 Pac. 338, speaking of "common-law appropriation." (See infra, sec. 246.) It may be men- tioned regarding this, that the pioneer appropriators were frequently ripa- rian and not nonriparian occupants. See Hill v. King, 8 Cal. 338, 4 Morr. Min. Eep. 533. 81,82 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 85 The view which early came into general acceptance was that the common law had been displaced by the customs of the region and the State statute and decisions recognizing them. 18 It was upon this basis that controversies between the pioneers were settled among themselves in opposition to the common law. (3d ed.) 81. The Question of the Common Law Subordinated. But, as already said, this question of local law regarding the departure from the common law of waters, remained a subordinate one throughout the pioneer days. The question of the relation of the pioneers to the government as landowner of the public lands gath- ered in the other question and absorbed it. It soon became a question (whether correctly so or not) of not what was the local law of waters, but what was the public land law. The great ques- tion was, not whether the pioneer miners on the public domain had common-law water-rights or not, but whether they had any rights at all. C. THE QUESTION OF FEDERAL PUBLIC LAND LAW. (3d ed.) 82. Who was the Ultimate Proprietor? A resort to the customs was sufficient to determine controversies between the people themselves. Yet in reality the pioneers, in spreading over the region, had come as strangers to the land. Who actually owned the land and the rest of these things? There was an attempt at first to say that the State was the real proprietor of the mines under the "regalian" theory. 19 Wyoming to-day, with regard to waters on the public domain, leads a strong following to the effect 18 The opinion in Morton v. Solam- tied down to the treadmill of the bo Min. Co., 26 Cal. 533, 4 Morr. common law to readily escape its Min. Rep. 463, per Sanderson, C. J., thri.ldom while engaged in the solu- expresses this in a frequently quoted tion of a mining controversy," etc. passage: "Having received the sane- And yet the same judge in the next tion of the legislature they [the cus- volume of the reports declared in just toms] have become as much a part as emphatic terms that the new water of the law of the land as the com- decisions were not a departure from mon law itself which was not the common law, as had come to be adopted in a more solemn form." the prevalent "notion," as he calls it. And he says it is to be regretted Hill v. Smith, 27 Cal. 476, 4 Morr. that the courts and the legal pro- Min. Rep. 597, quoted infra, sec. 311. fession "seem to have been too long i Hicks v. Bell, 3 Cal. 219. 86 (3ded.) Pt. II. CALIFORNIA -COLORADO DOCTRINES. 83 of State proprietorship of waters. 20 But the sentiment of the Eastern part of the country then as well as now held the mines and waters and other natural resources to be Federal property and part of the public domain of the United States. 21 The Cali- fornia court next said it may be either the State or national govern- ment ; K but when the question came up for decision, at the time of the opening of the Civil War, the court emphatically, under the leadership of Judge Field, held the lands and everything connected with the soil to belong to the United States. 23 The pioneers them- selves had accepted this, 1 and the records of the time are wholly lacking in any attempt to distinguish waters from lands and mines. All went together in the mind of the day as one large question aris- ing out of ownership by the United States. (3d ed.) 83. The Pioneers as Trespassers Against the United States. Since, then, an outstanding title was recognized to all this region, the question was raised, not whether the pioneer miners on the public domain had common-law water-rights or not, but whether they had any rights at all. The people had, from the first dis- covery, been declared trespassers against the United States by Colonel Mason, and the same contention appeared before the courts in suits which arose between the miners. 2 General Hal- leek, in his pioneer book on mining law, laid it down that the United States district attorney could file suit to oust all from the region. 3 Colonel Mason had spoken offhaad, but lawyers now cited the 20 Infra, sec. 170. the protection and regulation," etc., 21 Yale on Mining Claims and or "As Congress has made no rules Water Rights, c. I. and regulations," etc. Yale on Min- 22 Irwin v. Phillips, 5 Cal. 140, 63 ing Claims and Water Rights, pp. 70, Am. Dec. 113, 15 Morr. Min. Rep. 84. 178; Conger v. Weaver, 6 Cal. 548, 2 "As this wealth came from pub- 65 Am. Dec. 528, 1 Morr. Min. Rep. lie land belonging to the United 594; Bear River etc. Co. v. New York States, he [Colonel Mason] took into etc. Co., 8 Cal. 327, 68 Am. Dec. 325, serious deliberation how he could se- 4 Morr. Min. Rep. 526. cure for the government a reasonable 23 Moore v. Smaw, 17 Cal. 199, 79 rent or fee for the privilege of ex- Am. Dec. 123, 12 Morr. Min. Rep. tracting it." Hittell's History of 418, Field, C. J., rendering the California, vol. Ill, p. 693. opinion. 3 Halleck's Introduction to De Fooz. i In their engrossed customs and Halleck had been a lieutenant under regulations they had placed pre- Colonel Mason on the same expedition ambles such as "Whereas the Congress as Sherman, both remaining in Cali- of the United States have in their fornia during the fifties, Halleck to wisdom made it incumbent on the drift into law practice, while Sherman miners of the various districts of went into banking. California, to provide such laws for 84 Ch. 5. HISTOKICALr TO THE ACT OF 1866. (3d ed.) 87 authorities to show that digging for minerals on the public domain of the United States was a trespass, entitling the govern- ment to damages in an action at law, and was such waste as would be restrained by injunction. 4 By tb.e act of the 3d of March, 1807, to prevent settlements on lands ceded to the United States until authorized by law, the President was empowered, by aid of the marshals of the United States and the military force, to remove intruders from the public land, and the improvements upon their settlements became forfeited to the government. It was later said : "By the United States statutes in force, both miners and ditch- owners were trespassers on the public lands and could have been removed by the military. ' ' 5 From the contention arising here came the point upon which the California law finally turned. There were leading lawyers who denied any right in the California courts to do anything but to adjust the rights of trespassers between themselves ; claiming that until Congress passed statutes it was of no moment who had the ultimate right to the mines or waters ; that, as between the pioneers themselves, at all events, prior possession was good enough, by the common law itself, against a mere later possessor ; and that this was all that concerned the California judges. Hence the designa- tion of private rights to real estate throughout the West as "pos- sessory rights," referring not only to waters, but to mines and lands as well; meaning that no one could have title to waters (or to anything else) until Congress should be heard from. . (3d ed.) 84. Spread of the Possessory System. The entire West was at this period unsettled vacant public domain, and people con- tinued coming in ; some for the California gold-fields, but stopping before reaching them, some leaving the California gold-fields in search of new ones, and some, who had gone to California, giving up gold hunting and turning to farming and other pursuits in the 4 Yale on Mining Claims and Water These rights belonged to the govern- Rights, p. 331. This contemporary ment as a proprietor of the land in writer set forth the situation as fol- common with an individual owner of lows : "Digging for minerals on the land, in the absence of protective legis- public domain of the United States lation. They were also secured by was a trespass, entitling the govern- legislation." ment to damages in the action at law; 5 Reporter's Statement in Titcomb and was such waste as would be re- v. Kirk, 51 Cal. 288, at 290, 5 Morr. strained by an injunction from a court Min. *Rep. 10. of chancery, pending the action at law. 88 (3d ed.) Pt. H. CALIFOKNIA - COLORADO DOCTRINES. 84 California and other Western valleys. They took possession of the public lands, mines, water and timber wherever they located, following out as between themselves the customs and rules of prior appropriation of all of these things prevailing in California, and not hearing from Congress one way or the other. 6 Private rights to real estate all rested upon this rule of priority of occupation upon public land. "For a long period the general government stood silently by and allowed its 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 applic- able to the peculiar situation ; and when there were contests between hostile claimants, the courts were compelled to decide them without reference to the ownership of the government, as it was not urged or presented. In this way from 1849 to 1866 a system had grown up under which the rights of locators on the public domain, as be- tween themselves, were determined, which left out of view the paramount title of the government." 7 The system spread throughout the West, and all the Western courts in the early days followed the California decisions and adopted them in their first cases. In Nevada, for example, the early court said it felt it a duty to follow the California decisions; 8 and in an early Colorado water case the court said: "We adopt the rule laid down by the courts of California and Nevada. ' ' 3 In the following passage the late Judge Hawley describes the free and unrestrained occupation of the public domain by the pioneers as a bit of his own biography. Referring to early Nevada he says : ' ' The first settlements were made in the valley in the ' early fifties, ' when the country was a part of the territory of Utah and subject to its laws. The settlements were made by persons who might be denominated as 'squatters' on the public land of the United States, without any title thereto save such as the custom of the locality recognized, or in some few instances such as might be acquired 8 The doctrine of appropriation of 7 Cave v. Tyler, 133 Cal. 566, 65 water upon public land in accordance Pac. 1089. with this universal custom was as- -. 11 . TT i a,, TIT n~ t i j T T , --T\IJ 8 Mallett v. Uncle bam M. (Jo., 1 sailed by counsel as late as McDonald ' v. Bear River Co., 13 Cal. 220, 1 Morr. Nev - 188 > 90 Am - Dec - 484 > 1 Morr - Min. Rep. 626, in 1859, but the matter Min. Rep. 17. passed unnoticed by the court. Yale 9 Sieber v Frink, 7 Colo. 148, 2 on Mining Claims and Water Rights, p qfll , Murray v Timy- 157. In Logan v. Driscoll, 19 Cal. Fac ' yU1 ' see ' als0 ' * 623, 81 Am Dec. 90, 6 Morr. Min. fey, 20 Mont. 260, 50 Pae. 723, 19 Rep. 172, the court rebuked counsel for Morr. Min. Rep. 137. disputing it. 85 Ch. 5. HISTORICAL, TO THE ACT OF 1866. (3d ed.) 89 under the various provisions of the laws of Utah. They raised cat- tle, that roamed at large, and in many places they cut the natural grasses which grew at that time in great abundance all over the river bottom." And he says that they would "allow their cattle and horses to roam at large, or picket them out to graze upon the natural grasses which then grew of sufficient height to almost hide the stock from view, and was as free and open to all comers as the air that wafted its gentle breeze through the valley from the moun- tains, the tops of which were covered by the snow that had fallen during the winter season. The writer of this opinion was one of the sojourners who made that trip in the year 1852, and the reading of the record in this case brings to his mind vivid recollec- tions of the joy and hope, courage and confidence, inspired in the breast of every pilgrim, of the bright future which he then thought awaited him when he reached the golden regions of the Eldorado of the West The water during this period continued to flow into various sloughs, and spread over all the land at high water. There were, as a general rule, no specific appropriations made of the water Some of them remained but a short period, and voluntarily left and abandoned the land, free to the occupancy of the next comer who concluded to settle thereon. Others traded their rights, whatever they were, for a horse or wagon, or anything of value, no matter how insignificant it might be. No conveyances were made. One party would leave; the other party would come upon the land, and stay until he got ready to move elsewhere. ' ' 10 This picture of early Nevada shows a more irresponsible and loose condition than prevailed in the California mining regions, however, where rights were of high value and zealously guarded. In time, farmers made permanent homes everywhere, and valuable mining claims were "located" outside of California. This Possessory System whereby lands, mines and waters were claimed by ' ' prior appropriation ' ' had all the force of a system of law governing real estate all over the West, for there was no other land law of consequence upon the public domain, and it was all public domain. (3d ed.) 85. Possessory System not Confined to Mining. The Cali- fornia legislature, while, as has been said, providing no direct 10 Union Mining Co. v. Dangberg, 81 Fed. 73. 90 (3d ed.) Pt. II. CALIFOKNIA - COLORADO DOCTEINES. 85 legislation concerning waters, by its early mining legislation indi- rectly complicated the question. The lands on which operations were carried on belonged to the United States and were not at the disposal of the State. But the State legislature, under the guise of regulating procedure in State courts, favored the miner against others. In 1852, the Possessory Act u allowed possessors of public lands to sue in State courts, for interference with their possession ; with a proviso excepting the possessors of lands for agriculture or grazing from protection against miners if the land contained mines. This was supplemented in 1855 by the Indemnity Act, 12 which required the miner who entered upon the agriculturist to give a bond for whatever damages might follow to the agriculturist's improvements. In spite of this favoritism shown to the miner by the legislature, the supreme court declared its purpose as far as possible to place all pursuits on an equal footing. 13 The court restricted the oper- ation of the statutes. They were held in no way to warrant inter- ference of any kind with lands owned by good private title but only applicable to public lands. 14 The proviso was restricted to such public lands only as were used strictly for agriculture or grazing and not applied to lands used for dwellings, town lots, sawmills, etc. 15 The latter two cases in the foregoing note held that appropriations of water to run a sawmill, being prior in time, prevailed against later appropriations by miners. Even in strictly agricultural uses (in regard to which the Indemnity Act required indemnity only where crops were growing, and left the Possessory Act unaffected in other cases), the court restricted the right of a miner to a mere right of entry, without the right to destroy any improvements whatsoever erected by the agriculturist, any such in- terference being held still a trespass ; and held that the preference amounted only to a right of entry on land, so that a water-right of an agriculturist was protected even against miners. 16 The final 11 Stats. 1852, p. 158. Boggs v. Merced, 14 Gal. 279, 10 Morr. 12 Act of April 25, 1855. Min. Eep. 334; Smith v. Doe, 15 Cal. 13 Tartar v. Spring etc. Min. Co., 100, 5 Morr. Min. Rep. 218. 5 Cal. 395, 14 Morr. Min. Rep. 371; 15 Fitzgerald v. Urton, 5 Cal. 308, McDonald v. B. R. etc. Co., 13 Cal. 12 Morr. Min. Rep. 198; Tartar v. 220, 1 Morr. Min. Rep. 626; Wixon v. Spring etc. Mining Co., 5 Cal. 395, Bear River etc. Co., 24 Cal. 367, 85 14 Morr. Min. Rep. 371; Ortman v. Am. Dec. 69, 1 Morr. Min. Rep. 656, Dixon, 13 Cal. 33. and many other cases; Yale on Min- 16 Eogers v. Soggs, 22 Cal. 444, 14 ing Claims and Water Rights, p. 49. Morr. Min. Rep. 375; Levaroni v. 14 Tartar v. Spring etc. Mining Co., Miller, 34 Cal. 231, 91 Am. Dec. 692, 5 Cal. 395, 14 Morr. Min. Rep. 371; 12 Morr. Min. Rep. 232. 85 Ch. 5. HISTOEICALr TO THE ACT OF 1866. (3d ed.) 91 result was that all pursuits were treated impartially as concerns waters. 17 In Rogers v. Soggs, 18 the court says: "Such, in general terms, are the rights of the miner; but these rights are subject to limitations and restrictions, necessary to prevent an interference with rights of property vested in others, and which are entitled to equal protection with his own. Thus he has no right to use water to wo-rk his mine which has been appropriated to other legitimate purposes. 19 Nor has he a right to dig a ditch to convey water to his mine over land in the possession of another. 20 Nor can he mine land used for a residence and for purposes connected therewith. 21 Or land used for houses, orchards, vineyards, gardens and the like." 22 In Montana, 23 it was :n a very early case i trongly urged that the doctrine of appropriation applied onlj to mining, and could not be extended to irrigation, and the only two judges who sat being divided upon the matter, it passed undecided in the case. In Atchison v. Peterson, 24 the supreme court of the United States upheld the rule as applied to mining, but it was by the decision in Basey v. Gallagher 25 that it was established in that court as applying to irrigation also. The law to-day respecting impartiality in uses for different pur- poses (where not modified by statute) is stated as follows in Natoma etc. Co. v. Hancock l (discussing the case of Rupley v. Welch) : 2 "The point, and the only point, contended for by the defendants was that a prior appropriation of water for irrigation was of no avail against a subsequent appropriation for mining. The court merely decided that the appropriation for irrigation was good against miners as against others, and that the defendants could not prevent the water so appropriated from flowing into the l'< Yale on Mining Claims and 21 Citing Fitzgerald v. Urton, 5 Water Rights, 139. Cal. 308, 12 Morr. Min. Rep. 198. 18 22 Cal. 444, 14 Morr. Min. Rep. n ... Q .,, -p. 1( - , , m 375. Opinion by Crocker, J. For _ ^^Cr? 1111 *I | % ^m ' appellant, John Garber. For respond- LJS*- T r ?fi J J l<- ent, Searls and Niles (both later on g^^?? 011 ' 16 Cah 153 ' 2 M rr ' Mm ' the supreme bench). Judgment for appellant. 23 Thorp v. Freed, 1 Mont. 651. 19 Citing Irwin v. Phillips, 5 Cal. 2 4 87 U. S. 507, 22 L. Ed. 414, 1 140, 63 Am. Dec. 113, 15 Morr. Min. Morr. Min Rep 583 Rep 178; Tartar v The Spring Creek ^ g7 u g Water etc Co, 5 Cal. 395, 14 Morr. M m > Mm. Rep. 371. 20 Citing Burdge v. Underwood, 6 * 101 Cal - 42, at 55, 31 Pac. 112, Cal. 45, 4 Morr. Min. Rsp. 517; 35 Pac - 334 - Weimer v. Lowery, 11 CaL 104, 4 2 23 CaL 453, 4 Morr. Min. Rep. Morr. Min. Rep. 543. 243. 92 (3d ed.) Pt. H. CALIFOENIA - COLOEADO DOCTRINES. 86 reservoir prepared for impounding it. This is a doctrine which, at the present day, no one disputes, but in early mining times the paramount right of the miner was strenuously insisted upon by the miners, and in the mining sections often exercised with a high hand, as it was by the defendants in Rupley v. Welch." 3 The Possessory Act is still in force in California. 4 The Indem- nity Act was held unconstitutional, 5 but was later -upheld. 8 No express repeal of the Indemnity Act appears, but it is probably superseded by the Federal statutes concerning public lands and mining. (3d ed.) 86. Precarious Status of Possessory Rights on the Approach of the Civil War. While the people were thus taking possession of the public domain for all purposes, Congress continued silent. But the approach of the Civil War, with its intense feeling, brought the possessory situation to a focus. The matter of "Federal rights," into which the Federal government itself had not entered, now became prominent. With the assertion in the South of 11 State rights" threatening the Union, loyal leaders in California felt that to uphold Federal rights was more important than any- thing else. There had, in the years following 1858, been an attempt on the part of the attorney general of the United States to oust certain miners on the claim that the minerals belonged to the United States, in litigation which, under the name of the "Castillero" litigation, aroused much excitement in California. This litigation spread over a large ground, much of which is of no bearing here, such as the validity of a certain Mexican grant and certain alleged fraudulent 3 23 Cal. 453, 4 Morr. Min. Eep. erty, without even referring to or 243. citing the overruled case of the pre- 4 Gray v. Dixon, 74 Cal. 508, 16 ceding term, by answering the argu- Pac. 305. ments upon which it is based, must 5 Gillan v. Hutchinson, 16 Cal. 153, be regarded as a wide departure from 2 Morr. Min. Eep. 317. the revered practice of their prede- 6 Eupley v. Welch, 23 Cal. 452, 4 cessors in the science of jurisprudence Morr. Min. Eep. 243, without refer- at Westminster Hall, and is an un- ring to the former decision, of which worthy example to their humble fol- Mr. Yale says: "Such practice by lowers at the bar." Yale on Mining the American judiciary, if it be ex- Claims and Water Eights, p. 55, tensively indulged in, of overruling commenting upon Gillan v. Hutchin- the recent decisions of the same court, son, 16 Cal. 153, 2 Morr. Min. Eep. which they have announced as law, 317, and Eupley v. Welch, 23 Cal. 452, involving grave constitutional ques- 4 Morr. Min. Eep. 243. tions upon the rights of private prop- 86 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 93 conspiracies on the part of high Federal officials. Among the array of counsel were Benjamin R. Curtis, Judah P. Benjamin, and W. H. Halleck. But, as concerns the present matter, the attorney general of the United States stepped into litigation begun by ad- verse private claimants, and, on the contention that the land in- volved was public land, secured in the United States circuit court in California an injunction against the working of the mine, and a writ was issued under the hand of President Lincoln for the employment of the military to remove the miners. 7 "The claim made by the government in this case was the assertion of a general principle, namely, the right to restrain the working of all mines upon public land, and could have been made to apply to any other mining claim in the State, besides the Almaden." 8 It was likewise about this time, with the Civil "War facing the country, when one of the California senators (though he denied it) was reported as saying ^hat California would secede with the South, 9 that Judge Field, a leader of the loyalists who held Cali- fornia to the Union, affirmed in the State court, where he was chief justice, in most emphatic terms, the Federal rights, in Boggs v. Merced, 10 decided in 1859, and Moore v. Smaw, 11 decided in 1861. He said in the Boggs case, with regard to mining claims (and his position applied equally to ditch-owners and water di- verters and most other property claimants in the Western regions) : "It is sometimes said, in speaking of the public lands, that there is a general license from the United States to work the mines which these lands contain. But this language, though it has found its way into some judicial decisions, is inaccurate, as applied to the action, or, rather^ want of action, of the government. There is no license in the legal meaning of that term The most which can be said is that the government has forborne to exercise its rights, but this forbearance confers no positive right upon the miner, which would avail as a protection against the assertion of its claims to the mineral. The supposed license from the general government, then, to work the mines in the public lands, consists in its simple forbear- ance. Any other license rests in mere assertion, and is untrue in T United States v. Parrott (1858), See Bancroft's History of Cali- 1 McAll. (C.' C.) 271, Fed. Cas. No. fornia. i*a< 2 * AT XT- -D Qq* 10 14 Gal- 3 74, 10 Morr. Min. Rep. 15,998, 7 Morr. Mm. Rep. 33o. 004 8 Yale on Mining Claims and ii 17 Cal. 199, 79 Am. Dec. 123, 12 Water Rights, p. 335. Morr. Min. Rep. 418. 94 (3ded.) Pt. II. CALIFOKNIA - COLOEADO DOCTRINES. 87 fact and unwarranted in law." This was a declaration that the western population were wholly without rights of any kind, to water or to anything else. It made him unpopular, and his de- cisions were strenuously attacked as below noted. 12 (3d ed.) 87. Revocation of Possessory Rights by Federal Patent. The same matter in a secondary form arose regarding water. The lands had long remained (and still largely remain) unsurveyed, nor was there any efficient statute for acquiring the formal govern- ment title to land until the Homestead Act, passed in 1862, and the Pacific Railway Act, passed in 1864. But in the course of the sixties, formal land patents began to be taken out under these Acts covering the land containing streams, and the patentees now claimed, as the only true successors of the United States, the same right to oust the appropriators that had come to be claimed for the United States itself. This came to decision in *Nevada, in the State and Federal courts, in the cases of Van Sickle v. Haines and Union Mining Co. v. Ferris, the most discussed decisions, in the seventies, in the Western law of waters, and here considered by anticipation. 13 These decisions dealt with the question what the law was prior to any statutes 'thereon from Congress; and, as Congress passed its acts' (below referred to) only in 1866 and 1870, the question really was, what is the status of all water claims whose title goes back to the fifties and early sixties ? The subsequent acts of Con- gress can give no validity to such claims; they must stand or fall 12 The decision was affirmed by the title, had made trespassers, against a United States supreme court in Min- handful of great landowners, of the ing Co. v. Boggs, 70 U. S. 304, 18 population of several counties, and he L. Ed. 245, but expressly avoiding a was attacked in the California news- consideration of the doctrine laid papers as an opponent of the rights down by Judge Field; for, as here- of the people. As to the nature of a after quoted, the United States su- Mexican grant, the supreme court of preme court took a more liberal view the United States now holds contrary of the rights of the pioneers, as did to these rulings of Judge Field. See also Judge Field when a member of Boquillas etc. Co. v. Curtis, 213 U. S. that court, and after the war was 339, 29 Sup. Ct. Eep. 493, and Los over, as below considered. Angeles Co. v. Los Angeles, 217 U. S. Boggs v. Merced and Moore v. 217. Smaw arose out of Mexican grants, 13 Van Sickle v. Haines, 7 Nev. but the California court held such 249, 15 Morr. Min. Kep. 201; Union grants equivalent to grants from the Min. Co. v. Ferris, 2 Saw. 176, Fed. United States, which is the way the Cas. No. 14,371, 8 Morr. Min. Eep. public land questions came to enter 90. See, also, Thorp v. Freed, 1 these cases. Field further, by uphold- Mont. 651, Wade, C. J. ; Ison v. Nel- ing the validity of the private Mari- son Min. Co., 47 Fed. 199. posa grant deraigned under Mexican 87 Ch. 5. HISTORICALr TO THE ACT OF 1866. (3d ed.) 95 on the original law. What, then, was the original law? It was, they hold, that the long accumulation of rulings that had been made upholding appropriation of water, simply settled rights be- tween trespassers against the government's paramount title, where- from it followed that all appropriators were trespassers against a grantee thereafter of that paramount title; and since the United States could have ousted all as trespassers, all could be ousted just as much by the government's patentee, no matter how long the appropriators had already been diverting the stream to use, 14 and even though it would mean ruin to the water supply of towns, farms, mines and other enterprises throughout the West. Water users were told that the appropriation of the waters of streams run- ning over the public lands could never become complete against the United States, and was subject to be revoked and abrogated at any time by the United States; and that a patent, by which the full legal title of the United States, with all of its incidents, was con- veyed to the patentee, was such a revocation, and necessarily clothed such patentee with all rights, over the land which had be- longed to the United States and which the people had been ille- gally enjoying. 15 Judge Garber, concurring in the Van Sickle case, said that the result, though correct, will disappoint expectations M Prescription not running against water therethrough; and no one the United States. could lawfully divert it against his 15 In the Van Sickle case, the consent." Injunction and damages plaintiff had appropriated and di- for Haines against the prior appro- verted a stream in 1857, and the de- priator ordered, reversing the lower fendant later in 1864, by a patent court. from the United States, without any In the Ferris case the facts were exception or reservation in the patent, substantially the same, and the hold- acquired the riparian land on which ing was the same, adding that, until plaintiff's point of diversion lay. the act of 1866, a sale of the public The defendant, now claiming as a land would put the possessory rights riparian owner, diverted the water on "at the mercy of the buyer of the his land and prevented it from flow- legal title." The effect of the act of ing to the plaintiff, the prior appro- 1866 "appears to be to grant to the priator. The Nevada court said: owner of possessory rights to the use "He [the appropriator] could acquire of water under the local customs, laws no right against the United States, and decisions, the absolute right to for as to that government he was a such use, which the government alone trespasser." Then, after saying the could grant. But the act is pros- patent to Haines of the riparian land pective in its operation, and cannot above the appropriator passed to be construed as to devest a part of an Haines, there being no exception in estate granted before its passage." the patent, the unencumbered fee of And held that patents issued berfore the soil, its incidents and appur- the passage of the act of 1866 are in tenances, says: "He became the no way qualified by that act, passed owner of the soil, and as incident subsequent to their issue, nor in any thereto, had the right to the" benefit way subordinated to prior appropria- te be derived from the flow of the tions of water. 96 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 88 long considered by the public as well founded. (In later days, as leader of the bar in California, he did his best to discredit this decision in which he had reluctantly concurred, and it has been said that the decision drove Judge Lewis, who wrote the opinion, off the bench). It was ruled in the Ferris case that a sale by the United States of the public land to a private patentee would put the pioneers' water-rights "at the mercy of the buyer of the legal title," resulting in the entire revocation of the doctrine of prior appropriation. 16 Field's California rulings had held that the pioneers had no rights whatsoever against the United States, and these Nevada rulings carried that to the sure result that the United States' patentee was the only one who could have a right to any- thing, because he alone had a formal grant from the United States, whether the property involved were water, or a right of way, a ditch, or a mine. So great was the popular disapproval and the reaction against these decisions, that most of the younger States came to deny any right to waters in any landowner as such, whether it be the United States or a private person ; rejecting thereby any Federal title to waters, and abrogating in ioto the common law of riparian rights, as we shall have occasion to see hereafter. But we continue here to follow up the events as they occurred. D. THE THEORY OF FREE DEVELOPMENT OF THE PUBLIC LANDS UNDER LOCAL LAW. (3d ed.) 88. Unpopularity of the "Trespasser'-' Basis of the Pos- sessory System. Judge Field was attacked in the California newspapers for the foregoing decisions as an opponent of the rights of the people, 17 and with regard to the Castillero case the California legislature in 1869 adopted a resolution in strong terms of denun- ciation, declaring that to make the rights of miners dependent upon the "will of the Federal power" would be "an outrageous viola- tion of free government," and calling upon the California repre- sentatives in Congress to secure relief from these decisions. 18 16 In the Montana case above cited 18 The resolution is in Cal. Laws of (Thorp v. Freed, 1 Mont. 651) the 1860, p. 419, too long to give here in chief justice (though no decision was full. It is also printed in Yale on Min- reached in the case) not only recog- ing Claims and Water Rights, pages nized such as its result, but declared 346, 347. It declared that Congress it to be a desirable result. had been silent as to the matter in 17 Bancroft's History of California, order "to encourage the discovery, en- 89 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 97 These results had, from the first California days, been anticipated from the "trespasser" doctrine, as had also the result that posses- sory rights would fall against Federal patent. It had been the endeavor of the earlier judges to anticipate these results by in some way connecting the pioneers with the Federal title, thereby lifting them out of the position in which the possessory doctrine, in its legal strictness, placed them. (3d ed.) 89. The Theory of a Grant With the Dignity of a Fee. We must at this point look baclr again to the earliest California de- cisions, before Field's rulings and before the Civil War threw its shadow upon the subject, to learn the theory at first adopted to pro- tec, the pioneers. They had admitted the title of the United States as proprietor of the ultimate right to the waters as well as the whole region, but at the same time denied the contention that the pioneers were trespassers, by declaring that the United States had, by its conduct in holding out the public domain to free develop- ment, bound itself to the pioneers as fully as though it had granted the water to the man who diverted it, was bound to respect the diversion for all time because it had encouraged the pioneers, had recognized their acts, and thereby tacitly conferred or transferred to the pioneers the Federal title to the mines and to the waters actually diverted a permanent title of the dignity of a fee and equal to subsequent patent equivalent to a patent. The court held that an appropriation of water was of the force of a grant from the United States, such that the government itself could not impair, that no later t>atent of riparian land could override, and to which no title was paramount. Irwin v. Phillips, 19 the original precedent, declared that by its conduct in permitting "free and unrestrained occupation" the joyment, and working of mines by the of this State were held by the people people, wherein consists the legitimate at the will of the federal power"; that development of cur great source of the the injunction to stop mining in the wealth of this State" ; that local regu- Castillero case "has been productive lations made by the people governed of great injury to the people of Cali- the subject, and that State law "pro- fornia, and is the exercise of a power tected and maintained his right of dangerous to the general mining inter- property in his mine"; that "it would ests of the State." be a great grievance and an outrageous 19 5 Cal. 140, 63 Am. Dec. 113, 15 violation of free government, if the Morr. Min. Rep. 178, quoted supra, sec. right of property in the mineral lands 77. Water Rights 7 98 (3d ed.) Pt. II. CALIFORNIA - COLOEADO DOCTEINES. 89 United States had "conferred" or "recognized" a full right in the appropriator with all the force of "res judicata." In Conger v. Weaver, 20 Judge Heydenfelt said: "Every judge is bound to know the history and the leading traits which enter into the history of the country where he presides We must, therefore, know that this State has a large territory; that upon its acquisition by the United States, from the sparse- ness of its population, but a small comparative proportion of its land had been granted to private individuals; that the great bulk of it was land of the government; that but little, as yet, has been acquired by individuals by purchase; that our citizens have gone upon the public lands continuously, from a period anterior to the organization of the State government to the present time; upon these lands they have dug for gold; excavated mineral rock; constructed ditches, flumes and canals for conducting water; built mills for sawing lumber and grinding corn ; established farms for cultivating the earth; made settlements for the grazing of cat- tle ; laid off towns and villages ; felled trees ; diverted watercourses ; and, indeed, have done, in the various enterprises of life, all that is usual and necessary in a high condition of civilized development. All of these are open and notorious facts, charging with notice of them not only the courts who have to apply the law in reference to them, but also the government of the United States, which claims to be the proprietor of these lands; and the government of the State, within whose sovereign jurisdiction they exist. In the face of these notorious facts the government of the United States has not attempted to assert any right of ownership to any of the large body of lands within the mineral region of the State. The State government has not only looked on quiescently upon this universal appropriation of the public domain for all of these purposes, but has studiously encouraged them in some instances, and recognized them in all. Now, can it be said, with any propriety of reason or common sense, that the parties to these acts acquired no rightsf If they have acquired rights, these rights rest upon doctrine of presumption of a grant of right, arising either from the tacit assent of the sovereign, or from expressions of her will in the course of her general legislation, and, indeed, from both." "A license," the court added, "to everyone who chose to possess himself of the franchise"; "a positive right in the constructors and owners of 20 6 Cal. 548, 65 Am. Dec. 528, 1 Morr. Min. Rep. 594. 89 Ch. 5. HISTORICALr TO THE ACT OF 1866. (3d ed.) 99 these works to hold and enjoy them as property a vested right which cannot be taken away. 1 ' 21 Referring to this opinion, the court also said it had adopted the theory that there was "a general license to all" to divert the public streams, and "when these ditches have been constructed they are regarded as a franchise or easement belonging to the. proprietors." 22 In another case: "In repeated decisions of this court it has been uniformly held that the miners were in posses- sion of the mineral lands under a license from both the State and Federal governments." 23 In another: "They are there by the clear license of both governments, and have such a title as will hardly be devested, even by the act of the superior proprietor. There are equitable circumstances connected with these mining claims, that are clearly binding upon the conscience of the gov- ernmental proprietor, that this court must, with all due respect, presume will never be disregarded. Rights have become vested in virtue of this license, that cannot be devested without a viola- tion of the principles of justice and reason." 24 Judge Baldwin, who, as counsel, had taken part in the original precedent of Irwin v. Phillips, 25 laid this down in a later case, 1 when he said, "We hold the absolute property in such cases to pass by appropriation as it would by grant"; and in the next volume of the reports he laid it down in Merritt v. Judd very strongly with regard to the rights of the pioneers generally, saying : ' ' From an early period of our State jurisprudence, we have regarded these claims to public mineral lands, as titles. They are so practically. It is very evident that the government will not change its policy 21 See infra, sec. 556, "executed having been decided by a majority of parol license," which was probably the the court against my own opinion idea in mind. see Conger v. Weaver, October 2, 22 Hill v. King, 8 Cal. 338, 4 Morr. 1856), and when these ditches have Min. Kep. 533. "The right to appro- been constructed, they are regarded priate the waters of the streams of as a franchise or easement belonging this State, for mining and other pur- to the proprietors, and are entitled to poses, has been too long settled to protection as any other property." admit of any doubt or discussion at Hall v. King, 8 Cal. 338, 4 Morr. Min. this time," saying that the court "based Rep. 533. this right on the ground that the 23 Bear River etc. Co. v. New York legislation of the State has given to etc. Co., 8 Cal. 327, 68 Am. Dec. 325, everyone not only a privilege to work 4 Morr. Min. Rep. 526. the 'gold placers,' but also to divert 24 Merced M. Co. v. Fremont, 7 Cal. the streams for this and other pur- 317, 327, 68 Am. Dec. 262, 7 Morr. poses. The legislation of the State Min. Rep. 313. Italics ours. has been held to amount to a 'gen- 25 5 Cal. 140, 63 Am. Dec. 113, 15 eral license to all' (whether prop- Morr. Min. Rep. 178. erly, is npt fflr me to say, the point 1 Ortman v. Dixon, 13 Cal. 33. 100 (3d ed.) Pt. EL CALIFOENIA - COLOEADO DOCTRINES. 89 in respect to them ; that they will not be sold, nor the present tenure altered. [This was before the act of 1866, in which this prophecy was fulfilled.] Our courts have given them the recognition of legal estates of freehold, and so, to all practical purposes, if we except some doctrine of abandonment, not, perhaps, applicable to such estates, unquestionably they are and we think it would not be in harmony with this general judicial system to deny to them the incidents of freehold estates in respect to this matter. If to decide thus be a departure from some technical rules of law [the title of the United States being regarded as merely technical], it is but following other rules, which hold that a system of deci- sions, long established and long acted upon, shall not be departed from when important rights have vested under it, merely because the reasons upon which it rests might not, in the judgment of sub- sequent judges, be considered sound." 2 And, finally, in the case of Lux v. Haggin : 3 " The law of Cali- fornia, with reference to priority of possession on the public lands, has been so long established that we are apt to forget the whole system was built upon a presumption entertained by the courts of a permission from the United States to occupy." 4 Accordingly, in practice, the attributes of freehold realty were enforced. Ejectment was allowed for mining claims, and justices 2 Merritt v. Judd, 14 Cal. 64, 6 are to-day said to "belong to the pub- Morr. Min. Rep. 62. (Italics ours). lie"), and open to the first appropria- This case is in the same volume of re- tor. ports as Biddle Boggs v. Merced * Regarding the attitude of the peo- Mining Co., in which Judge Field had, pie to this effect from the earliest as heretofore quoted (Supra, sec. days, it may be noted that Colonel S6), so positively laid down the Mason, in 1849, had thought of put- "trespasser" doctrine, saying that the ting out the miners, but he said: "freehold" theory was mere assertion, "Upon considering the large extent untrue in fact and unwarranted in of the country, the character of the law. It is consequently interesting to people engaged, and the small, scat- note that Judge Field did not sit in tered force at my command, I am re- Merritt v. Judd because he was ab- solved not to interfere, but to permit sent from the State, while Judge all to worlc freely', unless broils and Baldwin did not sit in Boggs v. crimes should call for 'interference." Merced Co. because he had been coun- Costigan on Mining Law, p. 3. And ,sel in the case. As will appear here- thus left to worlc freely, "they pro- after, Judge Field later gave up hia ceeded upon the theory that the pub- support of the trespasser theory, and lie domain belonged to the people; when on the bench of the supreme that the mineral therein was the sub- court of the United States did more ject of free private acquisition, as a than anyone else to support the full reward for discovery and occupation; vested character of the rights of the and thus defied, in effect, the settled pioneers. traditions and laws of other countries, 3 69 Cal. 255, 10 Pac. 674. In Mor- and the right of the United States as ion v. Solambo Min. Co., 26 Cal. 527, a government to the mineral contained 4 Morr. Min. Rep. 463, mines were in its land." Costigan on Mining said to be publici juris (just as waters Law, p. 8. 90 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 101 of the peace had no jurisdiction, and probably dower was enforced, 5 and the usual law of fixtures was held to apply, 6 and the claims were such property as to have jurisdictional value, 7 and usually conveyances had to be in writing; 8 although on all these and many other points the reverse would be true if Field's ruling had been enforced logically and if the pioneers had been treated as mere trespassers (and, indeed, in some of these points the freehold theory had difficulty in making its way). 9 (3d ed.) 90. Same. The freehold theory is set forth in cases of other Western courts. Thus, in an Oregon case: 10 "The right of mining for the precious metals is a franchise, and the attendant circumstances raise the presumption of a general grant from the sovereign of the privilege. Accepting this as a postulate, it fol- lows that the general government itself could not equitably inter- fere with or abridge the .rights of the miner. ' ' In Nevada the court in the first volume of its reports said : ' ' So far, then, as the anomalous rights and character of the miner locating upon the public land for the purpose of mining are defined and established by the courts of California, we feel it our duty to recognize them whenever their decisions may be applicable to our condition To repudiate the theory and principles upon which they have acted would be to overturn the foundation upon which half our rights rest." 11 Before the law was finally settled this way in the act of 1866 as below set forth, the supreme court of the United States in general terms encouraged the stand taken. In one case, for example, it said that mining claims on the public land existed under the implied sanction of the national government, for "we cannot shut our eyes to the public history," 12 and other expressions by the supreme court of the United States to the same effect are hereafter quoted. 5 See Lindley on Mines, and Yale 10 Gold Hill Co. v. Ish, 5 Or. 104, on Mining Claims and Water Rights, 11 Morr. Min. Rep. 635. 1'or mining decisions. u Lewis, C. J., in Mallett v. Uncle 6 Merritt v. Judd, 14 Cal. 64, 6 Sam Min. Co., 1 Nev. 188, 90 Am. Morr. Min. Rep. 62. Dec. 484, 1 Morr. Min. Rep. 17. 7 Sparrow v. Strong, 3 Wall. (70 12 Sparrow v. Strong, 3 Wall. (70 U. S.) 104, 18 L. Ed. 50, 2 Morr. Min. U. S.) 104, 18 L. Ed. 50, 2 Morr. Min. Bep. 320. Rep. 320. Field's denial of this in 8 Infra, sec. 542. Boggs v. Merced Mining Co., the 9 See, especially, infra, sec. 555, supreme court of the United States Parol Sale. had avoided passing upon when 'the 102 (3ded.) -Pt.H. CALIFORNIA - COLORADO DOCTRINES. 91 (3d ed.) 91. "Excepting the Government." The freehold theory continued to rule, and, as Congress -continued unheard from, its opponents, although retaining the "trespasser" doctrine, acknowl- edged (as Field had in Boggs v. Merced) that such must be ac- cepted in practice. They reserved their technical position by "excepting the government," but admitted the pioneers' rights to be freehold rights against all the world "except the gov- ernment." The phrase "except the government" came to be much used. 13 Whether, before the act of 1866, the appropriator's title against the government 01- its patentees be called legal under a grant, as Conger v. Weaver presumed and Merritt v. Judd declared at law, or equitable from conduct as the mining cases seem to say, yet it would seem but a matter of names. Without congressional action, interests in the public domain could not pass out of the United States so as to be enforced in a court of equity more than in one of law, and either in law or equity Judge Field's words are equally applicable: "The supposed license from. the general government, then, to work the mines in the public lands, consists in its simple forbearance. Any other license rests in mere assertion, and is untrue in fact and unwarranted in law." 14 The appropriators' rights in this respect rested wholly on moral grounds; it was a political matter forced upon the judges; the exigencies required Boggs case came before it on appeal. Kidd v. Laird, 15 Cal. 161, at 181, See supra, sec. 86. 76 Am. Dec. 472, 4 Morr. Min. Rep. In Sparrow v. Strong the eonten- 571. See, also, Hughes v. Devlin, 23 tion was that the possessory rights Cal. 501, 12 Morr. Min. Rep. 241; had no value, being in fact no right at Spencer v. Winselman, 42 Cal. 479, 2 all, and hence the jurisdictional value Morr. Min. Rep. 334; Buchner v. Mai- was lacking; but the court held other- loy (1909), 155 Cal. 253, 100 Pac. 687; wise. Miller v. Imperial Water Co. (1909), 13 For example, after saying that 156 Cal. 27, 103 Pae. 227, 24 L. R. A., the United States is the riparian pro- N. S., 372; Lindley or> Mines, 2d ed., prietor, and after "excepting the sec. 642, p. 1196. government," one case says: "Upon 14 Biddle Boggs v. Merced Mining this subject it is only necessary to Co., 14 Cal. 375, 10 Morr. Min. Rep. consider that none of the rights in- 334. "That there was an implied li- volved in this controversy are founded cense from the government to mine upon a legal title, and that the safety for the precious metals upon the pub- and security of the parties require lie land, by reason of its indulgence, that the rights of each, as fixed by if not the direct encouragement ex- the priority and extent of their re- tended to the mining population, as spective appropriations, should be re- claimed by every miner, has been garded as perfect and absolute as if expressly denied by judicial author- they had been acquired by prescrip- ity." Yale on Mining Claims and tioa, or were held under an express Water Rights, pp. 332, 333. grant from the riparian owner." 92 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 103 them to formulate a theory that would give permanent stability to the pioneers' claims, Congress failing to do so, or to act one way or the other. ''Tradition and the habits of the community count for more than logic"; 15 and the fact is that the pioneers' rights came to be treated and acted upon as actual freehold rights in practice, and the phrase "excepting the government'" remained (as to waters, at least) a mere formula of words without practical force, however sound it might have been in technical theory. E. THE ACT OF 1866. (3d ed.) 92. It may be well, for the sake of clearness, and because of the importance to-day of questions arising out of the act of 1866, to recapitulate briefly the ground just covered, which led up to that act. In the development of the law from the discovery of gold in 1848, mines and waters were governed by the same general law and decisions; there was no distinction made between the mining and the water questions. So far as there was any written law at the beginning, it was that the pioneers were trespassers upon the public lands of the United States. But the courts, in seeking to protect the pioneers and to give effect and recognition to the local laws and customs governing mining and the appropriation of water, held that although the ultimate title to the land was in the United States, yet, Congress having made no regulations governing the subject, the miners had a presumptive title to mines on the public domain and to water diverted and appropriated thereon. It was held to be the policy of the State to encourage the working of mines and the diversion of the. streams for beneficial use in accordance with local law, under a presumptive license from the United States to do so; and because the United States stood silently by during this universal appropriation of the public domain, and because the property rights of almost the whole Western region had thus arisen, the State courts declared that this license, based upon the encour- agement of Federal silence, amounted to a grant in fee to the ap- propriator when acted upon, equally as to mines and waters and ditches. The pioneers' rights were declared positive, vested rights by grant from the United States, which could not be devested. 15 Mr. Justice Holmes in Laurel San Francisco (1910), 216 U. S. 358, Hill Cemetery v. City and County of 30 Sup. Ct. Eep. 301, 54 L. Ed. 515. 104 (3d ed.) Pt. H. CALIFORNIA - COLORADO DOCTRINES. 93 This was the popularly accepted law up to 1859, when, at the ap- proach of the Civil War, the protection of Federal rights became a paramount question; and, in the Castillero case, and in opinions of the California court rendered by Judge Field, the foregoing decisions and contentions were denied; the pioneers were held but trespassers upon the public lands. Though recognizing the previ- ous rulings to the extent of holding the pioneers' rights properly treated as vested freehold interests as between themselves, and against everyone "except the government," yet against the gov- ernment or its patentees the pioneers' rights were held to be no rights at all. Thus, at the opening of the Civil War, the courts were holding that the rights in realty of the greater part of the Western population were wholly revocable by Federal action. Con- gress might expressly revoke them, or they would impliedly be revoked as to waters when the United States issued patents to the lands over which the waters flowed, or through which the ditches ran. The prospect of either of these results made the decisions announcing them intensely unpopular in the West. The California legislature denounced them in strong terms, and called upon the California representatives in Congress to seek redress by congres- sional action. But while the Civil War was in progress, the matter lay dormant. (3d ed.) 93. Congress and the Public Domain. The California legis- lature had, as already quoted in connection with the Castillero case, called upon Congress in forcible terms to declare the freedom of the mines, and in the same year (1860) Senator Gwinn, of Cali- fornia, had introduced in Congress an equally emphatic proposi- tion, to wit: "That it shall be lawful for any citizen of the United States, or for any person who may have declared his intention to become a citizen of the United States, who shall be an actual settler, to enter upon and remain on any public land of the United States containing minerals not specially reserved for public uses, within the States of California and Oregon, and to work the mines on the said lands for their own use and benefit, according to the laws and usages of the said States respectively, and no person who has heretofore worked the said mines on said lands for their own use and benefit shall be regarded as a trespasser 93 Ch. 5. HISTOBICAL TO THE ACT OF 1866. (3d ed.) 105 against the United States." But he was voted down. 16 In the meantime the Homestead Act got passed, however (1862), holding open the agricultural lands to free acquisition by settlers. 17 The Civil War came to a close in 1865. There was then intro- duced in Congress, to pay off the war debt, at the request of the Secretary of the Treasury, a bill to withdraw the mines from the miners, fix a price and sell them, with a royalty to the United States after the sale. The Secretary believed it would yield a large revenue. Great discoveries at the Comstock mines in Nevada had recently attracted the world's attention. The fol- lowing statement, somewhat exaggerated, perhaps, was communi- cated from Washington by one of the editors of the San Francisco "Alta California," and published in that newspaper May 17, 1867. Senator Stewart declared it to be substantially correct, and it is quoted by Yale: 18 "The miners of California and the States and Territories adjacent thereto have but a very inadequate idea of the imminent peril in which the pursuit in which they are engaged was placed at the commencement of the Thirty-ninth Congress. Two years ago there was a strong disposition in Congress and the East generally to make such a disposition of the mines as would pay the national debt. The idea of relieving the nation of the pay- ment of the enormous taxes which the war has saddled upon us by the sale of the mines in the far distant Pacific slope, about which few people here have any knowledge whatever, was the most pop- ular that was perhaps ever started compelling other people to liquidate your obligations, has been in all ages and in all nations a highly comfortable and popular proceeding. There were some at the time of which. I write who would not be satisfied with the sale of the mines. They held that even after the sale the govern- ment should be made a sharer in the proceeds realized from them. 16 Yale on Mining Claims and the United States; but each case shall Water Eights, p. 347. be adjudged by the law of posses- 17 The first Federal legislation sion." 13 Stats. 441. While assert- upon the rights of the pioneers was ing the Federal title, this had also the a proviso in an act of 1865 concern- effect of asserting that the miners' ing Federal courts in Nevada, saying: possession was equivalent to a free- "That no possessory action between hold title. It was hence neutral, and individuals in any of the courts of the had little effect upon the theories in- United States for the recovery of any volved, being overshadowed by the act mining title, or for damages to any of 1866. such title, shall be affected by the is Yale on Mining Claims and fact that the paramount title to the Water Eights, p. 10. lands on which such mines are, is in 106 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 93 The first bill on the subject was introduced in the Senate by Mr. Sherman, of Ohio, and in the House" by Mr. .Julian of Indiana." Such is the way it was put in the newspapers of the day. The part quoted is mild compared with the way it continued. These and similar things we quote without reference to our own day, but to reflect the thought of those days which culminated in the act of 1866. Senator Stewart of Nevada became the leader of Western mem- bers, and, to prevent such action (and not of his own initiative), introduced a counter-bill to confirm the rights of the miners and appropriators upon lines similar to those previously attempted by Mr. Gwinn, so that their rights should no longer be denied them as trespassers. In the Senate, Mr. Stewart spoke with great effect. 19 The question of royalty was extensively argued. Those who had favored it changed their position as the debate proceeded, and opinion became generally opposed to it. 20 Stewart's cotinter-bill passed in the Senate, but was held in the public lands committee of the House. 21 A bill relating only to 19 His speech is referred to with high approval by Judge Field in Jen- nison v. Kirk, infra. 20 Debates had been had in previous years in which "the system of land- lord and tenancy between the nation and its citizens was strongly con- demned in principle and policy, as inconsistent with the duty of a gov- ernment in the encouragement and re- ward of industry to individuals, and as fallacious in all theories aiming at remunerative returns." Yale on Min- ing Claims and Water Rights, p. 342. See the last paragraph of Moore v. Smaw, 17 Cal. 199, at 226. 21 The difficulty in passing the act rested upon several grounds. Yale ascribes it to the advocates of a ten- ancy and royalty. An additional cause, however, was the Sutro Tunnel Act, an incident in the history of the Comstock mines in Nevada. It was the fame of these great mines, as much as the California mines, that brought the question of mining rights to the front of public notice. The act of 1866 was specially intended to give stability to Comstock titles by issuance of mining patents. At the same time an act was being consid- ered in Congress in aid of the Sutro Tunnel Project to pierce the mountain in which the Comstock mines lay, by a tunnel primarily for drainage pur- poses, the bill granting to the tunnel company all ore bodies it might cut in its tunnel, not already discovered on the surface. The Sutro Tunnel advocates feared that Senator Stew- art's bill would legalize surface claims to their disadvantage if passed first, and hence held up his bill until the day after the tunnel bill went through. (It is interesting to note that the Sutro Tunnel was found almost wholly barren when completed.) Still another source of difficulty was that Senator Williams, of Oregon, while approving the general purpose of the act and the clauses which concern us here, was nevertheless opposed to the other clauses relating to the issuance of min- ing patents, fearing that they were im- practical and in the interests of specu- lators. I have examined the Congressional Globe upon these matters. (Cong. Globe, vol. 1865-66, p. 3952, etc.) The royalty feature urged by Sher- man was withdrawn by him, and he ^eventually supported the act on the ground that it was better to have the region developed than to tax it at 94 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 107 ditches and water-rights was reported to the House from another committee and passed. In the Senate, thereupon, the Western members secured the substitution of the entire original bill cover- ing both mines and waters; and in this way the House committee on public lands was evaded, and the entire bill eventually passed in the form in which originally passed by the Senate. The title of the House bill for which it was substituted had to be retained, however. In this way while primarily a mining bill, it is entitled, "An act granting the right of way to ditch and canal owners through the public lands, and for other purposes." 22 (3d ed.) 94. The Act of 1866. The act applied mostly to mining, in which respect it was crude and was repealed for a more detailed act in 1872 23 along the same lines. But the section referring to water-rights was preserved in the Revised Statutes, and has re- mained unchanged to the present day. Section 1 of the act as originally enacted provided: "Be it en- acted that the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to ex- ploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining dis- tricts, so far as the same may not be in conflict with the laws of the United States." 24 Then followed some provisions for issuance of mining patents. The section (section 9) referring to waters and remaining now in force is contained in section 2339 of the Revised Statutes : . Revised Statutes, section 2339 : ' ' Whenever, by priority of pos- session, rights to the use of water for mining, agricultural, manu- facturing or other purposes, have vested and accrued, and the same expense of development; while Will- laws, but simply give uniformity and iams expressed strong approval of the consistency to the whole system. The bill if the patent feature were omit- escape from entire confiscation w"as ted, and hence approval of the only much more narrow than the good peo- clauses which concern us here. pie of California ever supposed." 22 Mr. Yale says: "The result of Yale on Mining Claims and Water the whole fight is the grant of all the Eights, p. 12. mines to the miners, with some whole- 23 Act of 1872^ 17 Stats., c. 152, some regulations as to the manner of p. 9. holding and working them, which are 24 Italics ours, not in conflict with existing mining 108 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 95 are recognized and acknowledged by the local customs, laws and 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 construction of any ditch or canal, injures or dam- ages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party in- jured for such injury or damage." 25 In the placer mining law of 1870 (the act o'f 1866 was a lode min- ing law) this was amended, or rather supplemented, by a section now incorporated and in force in section 2340 of the Revised Stat- utes, and always taken with the act of 1866 : Revised Statutes, section 2340: "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 connection with such water-rights, as may have been acquired under or recognized by the preceding section. ' ' * (3d ed.) 95. The Act Explained by Judge Field and Other Author- ities. The obscurity of the wording of these sections when 'con- sidered apart from their history has been frequently pointed out. In Nevada, 2 Lewis, C. J., speaks of Revised Statutes, section 2339, as: "This section, which by its turbid style and grammatical sole- cisms, more surely than by the enacting clause of the act, is shown to be a production of Congress, may be found on page 253, volume 14, of the Statutes at Large," and that it "is about as clear and certain as the object and purposes of the acts of Congress usually are. It is true, the most apt words to indicate this purpose are not efnployed. That could scarcely be expected," etc. And Mr. Justice Stephen J. Field, in the supreme court of the United States, said that "the language used is not happy." 3 25 A. C. July 26, 1866, sec. 9 ; 14 683. Judge Lindley says (Lindley on Stats. 253, c. 262; U. S. Comp. Stats. Mines, see. 567) as to mining, with 19 ? 1 A P 'n 14 T 7 'n o IQ 17 i which the act of 1866 dealt more than 1 A. C. July 9, 1870, sec. 17; 16 Stats. 218, c. 235; TJ. S. Comp. Stats. th waters: "The truth is manifest. 1901, p. 1437. The act is crude and imperfect." 2 Hobart v. Ford, 6 Nev; 77, 15 (The mining part of it was repealed Morr^ Min. Rep 236. d b tt t al the same lineg 3 Basey v. Gallagher, 87 U. S. 670, ' s 22 L. Ed. 452, 1 Morr. Min. Rep. substituted in 1872.) 95 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 109 After considering the history and some of the leading authorities construing the act, it becomes clear enough, however. The classical exposition is contained in the opinion of Judge Field in Jennison v. Kirk. 4 This opinion, so far as it deals with the meaning of the act of 1866, is merely a condensation of the Congressional Globe report of Senator Stewart's speech in the Senate, and by adopting that Judge Field here, as in other decisions when a member of the supreme court of the United States, gives up his former stand, and, now that the war is over, becomes a strong supporter of the theory of the pioneers regarding the obligations of the Federal govern- ment. Judge Field's opinion is in part as follows: "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 mineral lands of the United States. The discovery of gold in California was followed, as is well known, by an immense immigration into the State, which increased its population within three or four years from a few thousand to sev- eral 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 Nevada Mountains. Into these mountains the immigrants in vast numbers penetrated, occupying the ravines, gulches and canyons, and probing the earth in all directions for the precious metals. Wherever they went, they carried with them that love of order and system and of fair dealing which are the prominent charac- teristics 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 mining 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; distinct provisions being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized dis- 4 98 U. S. 453, 25 L. Ed. 240, 4 Morr. Min. Rep. 504. Italics ours. 110 (3ded.) Pt. II. CALIFOKNIA - COLORADO DOCTKINES. 95 covery, followed by appropriation, as the foundation of the pos- sessor's title, and development by working as *he condition of its retention. And 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 ap- propriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and -in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines could not be worked without water. Without water the gold would remain forever buried in the earth or rock. To carry water to mining localities, when 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 appropriator of water to be conveyed to such localities for mining or other beneficial pur- poses was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the conditions of miners in the moun- tains. The waters of rivers and lakes were, consequently, carried great distances in ditches and flumes, constructed with vast labor and enormous expenditures of money, along the sides of mountains and through canyons and ravines, to supply communities engaged in mining, as well as for agriculturists and ordinary consumption. Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of these ditches and flumes, and for the protection of rights to water, not only between different appropriators, but between them and the holders of mining claims. These regulations and customs were appealed to in controversies in the State courts, and received 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 en- forced and molded by the courts and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands. Until 1866, no legislation was had looking to a sale of the mineral lands. The policy of the cuuntry had previously been, as shown by the legislation of Con- 95 Ch. 5. HISTORICAI^TO THE ACT OF 1866. (3d ed.) Ill 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 passage in the Senate, spoke in high praise of the regulations and customs of miners, and por- trayed in glowing language the wonderful results that had followed the system of free mining which had prevailed with the tacit consent of the government. The legislature of California, 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 determination ; 4a 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 himself, under the implied sanction of a just and generous government. 5 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 recognized the obligation of the government to respect private rights which had grown up under its tacit consent and approval. It proposed no new system, but sanctioned, regulated, and confirmed a system already established, to which the people were attached. (Cong. Globe, 1st Sess., 39th Cong., pt. IV, pp. 3225-3228.)" The supreme court of the United States further declared 6 about the early views, that some thought the Mexican law governed. "Others believed that, whether this were so or not, it would be a wise policy for the government to secure to itself a fair proportion of the metal produced from its own ground. But while Congress delayed and hesitated to act, the swarm of enterprising and in- dustrious citizens filled the country, and, before a State could be 4a Referring to Field's Act quoted which he had so strenuously denied supra, sec. 72. in Boggs v. Merced Co. 5 It is noteworthy that Judge Field 6 Ivanhoe M. Co. v. Keystone M. here adopted the "implied sanction of Co., 102 U. S. 167, 26 L. Ed. 126, 13 a just and generous government" Morr. Min. Rep. 214. 112 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 95 organized, had become its dominating element, with wealth and numbers and claims which demanded consideration. Matters re- mained in this condition, with slight exception, until the year 1866, when Congress passed a law by which title to mineral land might be acquired from the government at nominal prices, and by which the idea of a royalty on the product of the mines was forever re- linquished. ' ' 7 That was the purpose of the act not only for mines, but for waters also. The agricultural lands had been formally opened by the Homestead Act; the mines were opened by the first section of the act of 1866 ; and the waters and rights of way were held free under its ninth section. "It was for the purpose of pro- tecting the rights of appropriators of water for beneficial uses on the public lands which had vested and accrued, by virtue of local cus- toms, laws, and decisions of the courts, that the ninth section of the act of Congress of July 26, 1866, the substance of which is included in section 2339 of the Revised Statutes, was enacted. It was ap- parent to Congress, and, indeed, to everyone, that neither local customs nor State laws or decisions of State courts could vest the title to public land or water in private individuals without the sanction of the owner, viz., the United States." 8 T In another case the free develop- exacting royalties on the products of ment theory is set forth regarding the mines, and gave free license to all mines, saying that a patent adds little its citizens, and those who had de- to a claim perfected since act of 1866. clared their intention to become such, Chambers v. Harrington, 111 U. S. to search for the precious and eco- 350, 4 Sup. Ct. Eep. 428, 28 L. Ed. nomic minerals in the public domain, 452. Free pasturage was also the and, when found, gave the assurance government policy (Camfield v. United of at least some measure of security States (1896), 167 U. S. 527, 17 Sup. in possession and right of enjoyment. Ct. Rep. 864, 42 L. Ed. 260), until What had theretofore been technically changed by the Forest Service. a trespass became thenceforward a In speaking of the mining phase licensed privilege, untrammeled by of the act an eminent writer relates government surveillance or the ex- its purpose in the same terms as action of burdensome conditions. Such Judge Field applied to waters: "By conditions as were imposed were no the first of these provisions [that all more onerous than those which the the mineral lands of the public domain miners had imposed upon themselves should be free and open to exploration by their local systems. That such a and occupation], the government, for declaration of governmental policy the first time in its history, inaugu- stimulated and encouraged the develop- rated a fixed and definite legislative ment of the mining industry in the policy with reference to its mineral West, is a matter of public history." lands. It forever [until the very re- Lindley on Mines, 2d ed., sec. 55. cent public demand for the policy of 8 Benton v. Johneox. 17 Wash. 277, conservation, the policy of freedom 61 Am. St. Rep.' 912, 49 Pac. 498, 39 was regarded as fixed in the West L. E. A. 107. "forever "] abandoned the idea of 96,97 Ch. 5. HISTORICALTO THE ACT OF 1866. (3d ed.) 113 (3d ed.) 96. An Enactment of the Policy That the Waters on Public Lands were Open to Free Development Under Local Law. It will thus be seen that the purpose of the Act of 1866 (now sections 2339 and 2340 of the Revised Statutes of the United States) was to put the contention that the pioneers were trespassers at rest by "ac- knowledging" that they never were trespassers; that they were upon the lands of right from the beginning. The Federal title had never been more than a disturbing technicality to the pioneer, and should henceforth remain nominal only, as a trustee who shall resign when the people come into their own (such was their idea). Congress, for the same reason as the first California decisions (namely, to confirm the doctrine of free development under local law), passed this act regarding waters and rights of way (note the wording), "acknowledging" that "rights" had "vested and accrued" in the locators already, even- before the statute, and "ac- knowledging and confirming" the vested character thereof. The water sections were in substance the enactment of the policy of free development of waters and rights of way on public land under local law the policy we have traced among the people and the original pioneer decisions; a declaration that the pioneers' rights need no longer (and never had needed) to "except the govern- ment." (3d ed.) 97. Operates as a Grant. The act of 1866, for all diversions of water on public land, declares a grant from the United States to the appropriator equal in force with, and equivalent to, a patent to riparian land. The supreme court of the United States called the act "An unequivocal grant." 8 The act is entitled, "An act granting the right of way to ditch and' canal owners through the public lands, and for other purposes," and became accepted as merely a formal establishment of the original pioneer theory of a grant or general license from the United States to all citizens who took or should hereafter take possession of mines, waters, rights of way or reservoir sites on public land, under regulations of local law. For many years this explanation of the act of 1866 as a grant ran through the Western reports. 10 . 9 Broder v. Natoma Water Co., 101 10 Numerous authorities to this ef- U. S. 274, 275, 25 L. Ed. 790, 5 Morr. feet are quoted in a later chapter. Min. Rep. 33. Infra, see. 155. In part, more techni- Water Bights 8 114 (3d ed.) Pt. H. CALIFORNIA - COLORADO DOCTRINES. 98 (3d ed.) 98. Only Declaratory of the California Law. And in thus declaring the theory of a grant, the act added nothing new to the law. Until the act the United States had made no formal grant to the water users, it is true, but the western courts and people had held such a grant to exist nevertheless, and the act, rather than establishing such a grant for the first time, was a declaration that the courts and people had been correct in spite of the fact The assertion of a Federal grant before the act was a fiction, but the act declared in substance, not that it now for the first time sup- plied the grant, but that the fiction was and always had been the true law. That the act introduced nothing new, and is only declaratory of the theory of the original law as, before the statute, it always existed, became the express doctrine of Judge Field and the United States supreme court. Through Field that court said in one case that the United States had from the beginning encouraged free and unlimited use of the public lands for mining and thereby, even before the act, "by its silent acquiescence, assented to the general occupation," etc., 11 and in Jennison v. Kirk, 12 quoted in a previous section, said that the act "merely recognized the obligation of the government to respect private rights which had grown up under its tacit consent and approval. It proposed no new system, but sanctioned, regulated, and confirmed a system already established, to which the people were attached. " 13 In Broder v. Natoma Water Co., 14 the supreme court of the United States said: "We are of the opinion that it is the established doctrine of this court that rights of miners who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and cally, it was a release by a disseisee Merced (supra, sec. 86). He there to his disseisors (although this is only said the miners could have no rights an idea here suggested by the way, because the government had reserved and it would be only in part ap- its mineral lands; here he adopts the plicable). miners' view that this reservation was n Atchison v. Peterson, 20 Wall. not against them, but for them, "to (87 U. S.) 507, 22 L. Ed. 414, 1 Morr. encourage their free and unlimited Min. Rep. 583. use"; and he here also accepts the 12 98 U. S. 453, 25 L. Ed. 240, 4 tacit consent or license which he had Morr. Min. Rep. 504, quoted supra, rejected in the Boggs case. sec. 95. 14 lOi U. S. 274, 25 L. Ed. 790, 5 13 After the act of 1866 Judge Morr. Min. Rep. 33. Note that there Field thus modified his views about is an error in the report in the Law- the pioneers having been trespassers yers' Edition reprint. as he had formerly held in Boggs v. 98 Ch. 5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 115 for purposes of agricultural irrigation, in the region where such artificial use. of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encour- aged 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 recognition of a pre-existing right of possession constituting a valid claim to its continued use, than the establish- ment of a new one." In this case an 1853 appropriation was held to prevail against an 1864 railway grant of land, made before the act of 1866, and the court expressly said, "We do not think that defendant is under the necessity of relying on that statute." The railway grant had contained a clause excepting ' ' any lawful claim, ' ' and the supreme court of the United States held a ditch and an appropriation of water to be a lawful claim against the United States itself even before the act of 1866. 15 And this has since been the general ruling. 16 Thus Congress and the supreme court of the United States finally joined with the supreme court of California in holding that the pioneers (the appropriators) had not been trespassers; that the doctrine of appropriation was founded on the theory that the public domain was open to free development under local law, and that an appropriator is, and always was, a grantee of the United States of rights of way and of waters diverted on public land of equal dignity with a patentee of land, and if prior in time will, and al- ways would, prevail against a later patent to riparian land; not merely a right of possession against later mere appropriators, but title against the world as a grant from the United States of an in- terest in fee in the public land. Whatever this may have lacked in logic or legal reasoning is made up by the fact that it actually triumphed and became a fact of history. Until the act of 1866, Congress had never made an actual grant, but nevertheless, during the preceding years, under the rulings of the courts and acceptance of the people, rights in 15 See Van Dyke v. Midnight Sun there by license." Lux v. Haggin, 69 Co. (Alaska), 177 Fed. 90. Cal. 255, at 347, 4 Pac. 919, 10 Pac. "The construction given to the Ian- 674. At the same time it must be guage of the reservation [in Broder noted that the opinion in Lux v. Hag- v. W. Co.] of course implies that gin contains some expressions of a those who appropriated lands or contrary tendency- The act of 1864 waters on the public lands, prior to referred to is the Pacific Eailway the acts of 1864 and 1866, had not grant and right of way act. been treated by the government in 16 Infra, sec. 257. those acts as mere trespassers, but as 116 (3d ed.) Pt. II. CALIFOENIA - COLORADO DOCTRINES. 99 the public domain as to mines and rights of way and waters were acquired and became vested against the world under the fictitious grant deduced from its silence. In this the pubiie land law of the pioneers was an illegitimate thing, but it was the law in practice; the act of 1866 legitimated it and this legitimation related back to its birth and continued for the future. It is a clear case where the law was evolved from the exigencies of the times, molded by. cir- cumstances pressing it now one way, then the other; the growth of two wars and the winning of desert and wilderness and the peopling of a continent, more potent than closeted logic. (3d ed.) 99. Conclusion. The act of 1866 gave the formal sanction of the United States to the prevailing theory of a grant to the holders of existing rights upon public land, which indeed was its primary object ; for the statute had in view chiefly appropriations already made rather than future ones, and the protection of exist- ing rights on public land against the United States itself (by the act of 1866) and against its later riparian patentees (by the enact-' inent of 1870) was the primary object. Those rights had been built up in reliance upon the tacit acquiescence of the United States, the true owner of the lands and (under the assumption of those days) waters on which appropriations were made, and these statutes acquiesced therein expressly, ' ' a voluntary recognition of a pre-existing right rather than the establishment of a new one. ' ' 17 It further provided the same method for acquiring water-rights on public land in the future ; a vindication of the existing system for the future as well as for the past ; as to which the following very recent expression is one of many filling the Western reports: "The doctrine of appropriation thus established was not a temporary thing, but was born of the necessities of the country and its people, was the growth of years, permanent in its character, and fixed the status of water-rights with respect to public lands," and it was held that the act is in force for the waters of Alaska. 18 Appro- 17 Osgood v. Water Co., 56 Cal. "It has, as we interpret this law, 571, 5 Morr. Min. Rep. 37; Lux v. authorized any person wishing to con- Haggin, 69 Cal. 255, 10 Pae. 674; struct a canal or ditch for mining or Broder v. Natoma Water Co., 101 U. agricultural purposes to construct it S. 274, 25 L. Ed. 790, 5 Morr. Min. over any public land," and nothing Rep. 33; Jacob v. "Day, 111 Cal. 578, more is required than that the land is 44 Pac. 243; Pomeroy on Riparian public and that the ditch is con- Rights, sees. 17, 28. structed. Hobart v. Ford, 6 Nev. 77, 18 Van Dyke. v. Midnight Sun M. 15 Morr. Min. Rep. 236 ; accord, Jacob Co., 177 Fed. 90. v. Lorenz, 98 Cal. 332, 33 Pac. 119. 99 Ch.5. HISTORICAL TO THE ACT OF 1866. (3d ed.) 117 priators of water on public land to-day, at least in the States fol- lowing the California system, always claim to deraign title ulti- mately under the act of 1866. 19 But as we proceed we must remember that it was wholly public land law, involving solely, rights in the unoccupied public domain. In this regard there is, in the section in question of the act of 1866, a proviso requiring payment of damages to settlers for injury by appropriators. As below mentioned, the proviso was probably de- claratory, for possessory riparian land claimants, of what Lux v. Haggin later laid down for riparian patentees. 20 i Lux v. Haggin, 69 Cal. 255, at 20 Infra, sees. 221, 228, ditches on 339, 10 Pae. 674. private land. 100-107. (Blank numbers.) 118 (3ded.) Pt. H. CALIFORNIA ,- -COLORADO DOCTRINES. CHAPTER 6. HISTORICAL REVIEW (CONTINUED) FROM THE ACT OF 1866 TO THE PRESENT. A. THE PUBLIC LAND QUESTION LAID AT BEST. 108'. The Federal policy settled. 109. Early State legislation. 110. New questions. B. THE CONFLICT OVER RIPARIAN BIGHTS. 111. Private title to land and new industries. 112. The law and irrigation. 112a. Same. 113. Riparian rights before Lux v. Haggin. 114. Same. 115. Lux v. Haggin. 116. Result of Lux v. Haggin. 117. Riparian rights upheld in ten States and Territories. 118. Riparian rights rejected in eleven States and Territories. 119. Same "Landowner" statute. 120. Same Collateral results of the rejection. 121. In the supreme court of the United States. 122. Same. C. LATER AND RECENT STATE LEGISLATION. 123. Public service declared under State control. 124. Water codes. , 125. Same (Legislation in 1911). 126. Effect of this legislation on riparian rights. 127. Irrigation districts Wright Act. D. LATER AND RECENT FEDERAL LEGISLATION. $ 128. Desert Land Act. 3 129. Same Hough v. Porter. 130. Same New Oregon doctrine based on the Desert Land Act. $ 131. Federal Right of Way Acts. 132. Carey Act. | 133. National Irrigation Act. | 134. Water Users' Association. 135. Other Federal legislation. 136. Recent revival of discussion of Federal policy. 137. Conservation. 108 Ch. 6. HISTORICAL 1866 TO THE PEESENT. (3d ed.) 119 E. THE FUTURE. 138. Future of the system of appropriation. 139. Transitionary state of the law of appropriation within itself, f 140. Converging of appropriation and riparian rights. 141. Statement of the doctrine of appropriation. 142. Conclusion. 143-150. (Blank numbers.) A. THE PUBLIC LAND QUESTION LAID AT REST. (3d ed.) 108. The Federal Policy Settled. The act of 1866 secured to the pioneers their existing rights in real property in mines, rights of way and waters appropriated from the public domain, and settled the same system for their free acquisition in the future ; l and the question of governmental policy was never there- after important until, at the time of this writing, the Policy of Conservation has again brought it to public attention. From the year 1886 to the year 1908 the Federal policy of free development of water-rights by appropriation upon the public lands under local rules had become so settled a part of "the law of the realm" in the West, that, as will appear hereafter, the newer States (and the supreme court of the United States) forgot its origin, and now regard it as a matter of course, inherent in local law, deny- ing that Congress gave or can take away or modify. The act of 1866 enacted a policy, and the essence of it was got into three sentences. It was a formal expression of the people's own way of thinking, nothing more; brought nothing into life (if legislation ever did or can), but gave security to the life the people were already leading. That life thereafter, as railroads were built and cities and new communities founded, went into the New West, whose name became the word for what was most intensely Ameri- can. Each new State as it was admitted pointed to the resources that should build the greatness of the future within its borders. The "Dower of the People" and "the State's Heritage," they called the public domain: a great Horn of Plenty, in which everyone who came, especially the poor and homeless, should find something there for himself; the only price being in- 1 The act of 1866 was simply a di- said in a case holding that a mining rect and positive recognition on the claim located before 1866 prevailed part of the government of these rights against an agricultural patent (is- and a guaranty of a continuance of sued in 1870). Gold Hill Co. v. Ish, the same policy in the future, it is 5 Or. 104, 11 Morr. Min. Rep. 635. 120 (3d ed.) Pt. H. CALIFOBNIA - COLORADO DOCTRINES. 109 dustry and intelligence, the reward being a competence and inde- pendent prosperity for all, with even wealth and fortune for the lucky (for they did not deny wealth too) ; these and like words filled, during the decades following the act of 1866, the opinions of judges and resolutions of legislators, no less than the daily newspaper editorial and the Fourth of July oration. Indeed, most States put the "free development" theory into their constitutions or statutes by providing, "The right to appropriate unappropri- ated water shall never be denied," or words to the same effect. 2 (3d ed.) 109. Early State Legislation. Shortly after the acts of Con- gress of 1866 and 1870 went into effect, California adopted its codes (1872). In the Civil Code thirteen sections 3 were devoted to this subject a perfectly valid field for State legislation within con- stitutional limitations upon the legislative power of a State. 4 In the mining law, subject to the paramount power of Congress, the States have, from the earliest days, legislated regarding the public domain, whatever may be the source of their right so to do. Re- garding water, it has, however, been said to be a part of the State 's police power. 5 At all events, Congress had stepped aside, by the act of 1866, and there now opened the era of State legislation which has continued to the present day. No substantial innovations were made by the California Civil Code, and the California code merely settles, in legislative form, the decisions of the courts already made; a crystallization of the law of appropriation, superseding. 2 For example: South Dakota. Laws 1905 and 1907 Colorado. "The right to divert un- (see infra, Part VIII). appropriated waters of any natural Wyoming. Const., art. 8, sec. 3. stream for beneficial uses shall never This list is probably not complete, be denied." Colo. Const., art. 16, sec. See Clark v. Nash, 198 U. S. 361, 6. This "guarantees in the strongest 25 Sup. Ct. Rep. 676, 49 L. Ed. 1085, terms the right of diversion and 4 Ann. Cas. 1171, as to how far the appropriation for beneficial uses." supreme court of the United States Wheeler v. Northern Colo. Irr. Co., has gone in holding the development 10 Colo. 587, 3 Am. St. Rep. 603, 17 of the West to be of the utmost pub- Pac. 487. lie interest. Idaho. Const., art. 15, sec. 3; 3 Sections 1410-1422. Stats. 1905, c. 23, 52b. * Lux v. Haggin, 69 Cal. 255, 10 NebrasTca. Comp. Stats. 1903, sec. Pac. 674; Gutierres v. Albuquerque 6451; Cobbey's Stats., sec. 6797; etc. Co., 188 U. S. 545, 23 Sup. Ct. Laws 1895, c. 69, p. 260, sec. 43. Rep. 338, 47 L. Ed. 588. New Mexico. Laws 1905, p. 270, 5 White v. Farmers' etc. Co., 22 sec. 1. . Colo. 191, 43 Pac. 1028, 31 L. R. A. North Dakota. Laws 1905, c. 34, 828; Kansas v. Colorado, 206 U. S. sec. 1; Rev. Codes (1905), see. 7604. 46. 109 Ch. 6. HISTORICAIr-1866 TO THE PRESENT. (3d ed.) 121 the miners' customs and rules, which thereafter ceased to have any operative force in the California law of waters. No new rules were incorporated except in minor details that will be hereafter noted. 6 In one or two instances the principle of priority of appropriation of waters upon public land passed into legislative enactment as a statement of the decisions before the adoption of the California codes. In Wyoming the territorial legislature in 1869 passed a law, declaratory of the California decisions, for the development of the mining resources of the territory, and provided in that act Cor placing and recording notices of claims for ditches and water privileges; and requiring the completion of such ditches within a certain time after filing notice. 7 After the enactment of the California Civil Code, statutes were passed in other States gener- ally copying its provisions upon appropriation of water. 8 The first legislation was generally modeled upon the California law as rep- resented by the decisions of the California court and formulated in the Civil Code. In Nebraska, the rule wa& not enforced until recently. 9 Since the enactment of the California Civil Code there has been (for reasons hereafter appearing) practically no legislation in California, though Professor Pomeroy wrote his work on Riparian Rights to urge it. The State legislation in California since then has been chiefly devoted to irrigation districts, leaving the law of waters in general untouched. But more recently there has been extensive legislation in most of the other States, and legislation was revived again in California in 1911. As a rule, as will appear hereafter, the State legislation has its basis in the policy of free development. 10 6 Pomeroy on Riparian Rights, 89; Senator Nelson, of Minnesota: "Do Blanchard and Weeks on Mining the States charge anything for the Claims and Water Rights, 696. See use of the water?" Senator Clark, infra, sec. 361 et seq. of Wyoming: "They do hot." Sena- 7 Laws 1869, pp. 310, 311, c. 22, tor Smoot, of Utah: "My State does sees. 15-17; Willey v. Decker, 11 Wyo. not charge a cent." Senator Hughes, 496, 100 Am. St. Rep. 939, 73 Pac. of Colorado: "The constitution of my 210. State says that it shall be free." The 8 Infra, sec. 361 et seq. Chairman: "Does any State make a 9 Meng v. Coffey, 67 Neb. 500, charge?" Senator CJiamberlain, of 108 Am. St. Rep. 697, 93 N. W. 715, Oregon: "If anybody in Oregon ap- 60 L. R. A. 910, saying: "Irrigation propriates water, he must develop it is very young in this State, as the within a certain time or lose it." The semi-arid portions did not begin to be Chairman: "But if he develops it in settled till about 1880.". that time, does the State charge?" 10 In the Senate Committee on Put Senator Chamberlain: "It makes a lie Lands, Feb. 16, 1910, it was said: small charge." 122 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 110,111 (3d cd.) 110. New Questions. With the close of the Civil War, and the passage of the act of 1866 (and the Homestead Act in 1862, and the Pacific Railway Act in 1864), there came a new era in the West the era of development. New questions arose out of the rapid passage of the lands into private hands, and the rapid growth of the West. As to the first, the great question turned upon the right of private landowners to streams on their land as against appropriations initiated after the land had become private; from being one of public land law the subject of contention became one of private land law. As to the second (more recently), the crowd- ing of the appropriators on many streams necessitated, under the doctrine of appropriation, detailed regulation, supervision and system in acquiring, defining and regulating appropriations. B. THE CONFLICT OVER RIPARIAN RIGHTS. (3d ed.) 111. 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 completion of the Pacific Railroad brought the West into easy reach of the world. The building of the telegraph opened quick communication. The railway grants and Homestead Act now furnished a practicable means of obtaining title. The public lands were being rapidly 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 agricultural and commercial community resembling more and more the older States ; and the pioneer conditions that had forced a departure from the common law were passing into the background as mining ceased to be the paramount industry and as the waters no longer were wholly of the public domain. The rights of the landowner through whose land, now private, a stream flowed, never before used by anyone, became an important question. The prem- ise in Irwin v. Phillips, the original precedent, that the lands and waters in controversy were a part of the public domain, to which no one claimed private proprietorship, was no longer true. 112 Ch. 6. HISTORICAL 1866 TO THE PEESENT. (3d ed.) 123 (3d ed.) 112. The Law and Irrigation. The chief industry demand- ing water under these new conditions was irrigation. A well- known writer 11 declared that California largely owes her prom- inence 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. 12 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 doctrine of appropriation is more favorable to development of the West, or whether either is inimical thereto. In many of the Western States 13 feeling runs high against any attempt to enforce the common-law rules of riparian rights, and it is said that appropriation is absolutely essential. In Idaho, 14 the court rose against the "phantom of riparian rights," and de- clared appropriation the "lineal descendant of the law of neces- sity." In Utah, 15 speaking of riparian rights, it is declared: "It was ascertained that either 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 cultivation unless irrigated by the waters of running streams. The general surface of the State is table-lands, traversed by parallel mountain ranges. The great plains of the State afford natural advantages for con- ducting water, and lands otherwise waste and valueless become productive by artificial irrigation. The condition of the country and the necessities of the situation 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. ' ' 16 The same court recently also sail: "Irrigation is the life of our important and increasing agricultural interests, which would be strangled by en- forcement of the riparian principle." 17 Following this side of 11 Kinney on Irrigation, sec. 339. 15 Salt Lake City v. Salt Lake etc. 12 "One of the most important con- Co., 25 Utah, 456, 71 Pac. 1069. cerns of the State." Speer v. Steph- 16 Reno Smelting Works v. Steven- enson (1909), 16 Idaho, 707, 102 Pac. son, 20 Nev. 269, 19 Am. St. Eep. 365. 364, 21 Pac. 317, 4 L. E. A. 60. 13 A list of which is given below, 17 Twaddle v. Winters, 29 Nev. 88, eec. 118. 85 Pac. 284, 89 Pac. 289. In this 14 Drake v. Earhart, 2 Idaho (756), case the court attacks the California 716, 23 Pac. 541. A recent Alaska law for upholding riparian rights, case also calls the riparian right a with a misunderstanding that is fre- "phantom." McFarland v. Alaska quent. In Kansas v. Colorado, 206 etc. Co., 3 Alaska, 308. U. S. 46, 27 Sup. Ct. Eep. 655, 51 L. 124 (Sded.) Pt. II. CALIFORNIA - COLORADO DOCTEINES. 112 the question, Mr. Justice Holmes recently said in the supreme court of the United States regarding the doctrine of riparian rights: "Such a limitation would substitute accident for a rule based upon economic considerations, and an effort, adequate or not, to get the greatest use from all available land"; 18 while Mr. Justice Brewer, 19 in words which run through the Western reports, says that under the law of prior appropriation barrenness disap- pears and the desert becomes a garden, blossoming like the rose. 20 In the rest of the Western States, 21 the courts have been equally positive that the doctrine of riparian rights is a beneficial one for private land and that the law of appropriation is a system to be viewed with alarm. In California, 22 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 a very recent case the California court, under circumstances involving percolating water where they were totally unbound by precedent, brought in the riparian doctrine de novo as imperatively demanded by conditions. 23 In Montana, 24 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 belongs 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." And he further says: "Is it not the true policy of this Territory to erect such a system of laws here as shall distribute our short supply of water to the best advan- tage to all our people? The common law applied to this country is ample and sufficient to secure this much desired end"; and after setting forth objections to the doctrine of appropriation, closes Ed. 956, Theodore A. Bell, member of 20 Quotations to this effect could Congress from California ; J. C. be repeated from all the States given Needham, member of Congress from below, which reject the doctrine of California; Henry C. Hansbrough, riparian rights in toto. See, further, United States Senator from North the quotations in Willey y. Decker, 11 Dakota; Alexander Oswald Brodie, Wyo. 496, 100 Am. St. Rep. 939, 73 former governor of Arizona; Francis Pac. 210, given infra, sec. 168. E. Warren, United States Senator 21 See list, sec. 117, below, from Wyoming; Joseph M. Carey, 22 L Haemn 69 Pal 2^ at formerly U. S. Senator from Wyom- 309( iS^e .^^oted frl/ra 'sec ing, and many engineers testified to ,Q,g their opinion of the ruinous effect of the common law on irrigation. 23 Mlller v - Ba 7 Cities W. Co., 157 18 Boquillas etc. Co. v. Curtis, 215 Cal - 256 > 107 Pa c- H5, 27 L. R. A., U. S. 339, 29 Sup. Ct. Rep. 495, 53 N - S -> 772 - L. Ed. 822. 24 Thorp v. Freed, 1 Mont. 651, W Kansas v. Colorado, 206 U. S. 46, Wade, C. J. 27 L. Ed. 655, 51 L. Ed. 956. 112 Ch. 6. HISTORICALr 1866 TO THE PEESENT. (3d ed.) 125 his opinion: "And all these consequences, so disastrous in any view, are to be visited upon Montana, that a few individuals may have what does not now, ahd never did, belong to them. ' ' 25 In Nebraska, 1 the court arraigns the unrestricted law of appropria- tion, and says it breeds monopolies; leads to antagonism, strife, dissension, gross exactions, abuses; is detrimental to the public welfare; has given rise to interminable litigation. Professor Pom- eroy said: "The doctrine of prior appropriation is completely at war with a system which recognizes, harmonizes, and protects the rights of all parties in the State." 2 These statements so far quoted are in the nature of a cross- complaint, or recrimination, so to speak. By way of reply to the assertion that the common law is inapplicable to conditions where irrigation is necessary, it is said in Nebraska: 3 "A great deal of what has been urged upon us as demonstrating the inapplicability of the rules of the common law upon this head to conditions in Nebraska proceeds upon an erroneous impression of the nature and purpose of such rules. Nor do we believe that the common- law rule of equality among riparian owners, administered liber- ally with respect to the circumstances of particular localities, is necessarily prohibitive of irrigation anywhere. If we bear in mind wherein the essential doctrine of the common law on this subject consists, we doubt whether a more equitable starting point for a system of irrigation law may be found." And in another case, 4 the same court says: "But it cannot be said that the common-law rule of riparian ownership is inconsistent with the use of water for irrigation purposes, for, as we shall see later on, the right to the use of water for irrigation purposes is one of the elements of 25 He desired to refuse to allow this to create strifes, conflicts, and the law of appropriation any recogni- breaches of the peace. The right of tion whatever for irrigation; that is, prior appropriation on the public to apply the common law alone and streams was a most fruitful cause of reject the doctrine of appropriation litigation in California, as is shown by in toto as concerns irrigation. the great number of reported cases; 1 Farmers' Irr. Dist. v. Frank, 72 but this is a feeble illustration of the Neb. 136, 100 N. W. 286. litigation and controversy which must 2 Pomeroy on Riparian Rights, sec. arise from the statutes of Colorado 160. In another place (page 264) and of the various Territories when he says: "As Colorado and these Ter- they come into full operation upon an ritories become more fully settled, es- increasing population." pecially by an agricultural population, 3 Meng v. Coffey, 67 Neb. 500, 108 this system of water regulation will Am. St. Rep. 697, 93 N. W. 715, 60 inevitably give rise to an enormous L. R. A. 910. amount of trouble, controversy, and 4 Crawford v. Hathaway, 67 Neb. litigation. It is impossible to con- 325, 108 Am. St. Rep. 647, 93 N. W. ceive of legislation tending more than 781, 60 L. R. A. 889. 126 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 112 property belonging to the riparian owner along with that of its use for domestic and water-power purposes." And in Washing- ton: 5 "Now, the common-law doctrine declaratory of riparian rights, as now generally understood by the courts, is not, in our judgment, inconsistent with the constitution or laws of the United States or of this State. Nor is it incompatible with the condition of society in this State, unless it can be said that the right of an individual to use and enjoy his own property is incompatible with our condition a proposition to which, we apprehend, no one would assent" for a moment. ' ' 6 The Oregon court has recently taken an intermediate position, saying that the common law of riparian rights is better adapted to domestic uses, though exclusive rights by priority of appropria- tion are better for irrigation, mining and manufacturing ; but as to domestic uses, declares that an abrogation of riparian rights would be against the public welfare. 7 In Texas there is a different rule for different parts of the State, 8 but in California the court said: 9 "It is said, it should be held that the streams in the more arid portions of California may be entirely diverted by the prior appropriator, as against those below, and that the common-law rights of riparian proprietors, should pre- vail in the regions in which the climate more nearly resembles that of other States where the common-law rule is enforced. The arid- ity of the soil and air being made the test, the greater the aridity the greater the injury done to the riparian proprietors below by the entire diversion of the stream, and the greater the need of the riparian proprietor, the stronger the reason for depriving him of the water. It would hardly be a satisfactory reason for de- priving riparian lands of all benefit from the flow that they would thereby become utterly unfit for cultivation or pasturage, while 5 Benton v. Johncox, 17 Wash. 277, authorizing each to make a reasonable 61 Am. St. Rep. 912, 49 Pac. 498, 39 use of it, providing he does no injury L. R. A. 107. to the others equally entitled to it 6 "But suppose that decision should with himself." Van Sickle v. Haines, necessitate the adoption of the com- 7 Nev. 249, 15 Morr. Min. Rep. 201. mon law respecting the manner in Since overruled. which running water may be used by 7-0- ^ those having Ihe right Jit; although gi T g ="j' * rt it may operate unjustly in some cases, fi^ed 102 Vc >8 still, as a general rule, none more just ' u and reasonable can be adopted for this 8 **7 sec - 117 - State. It is a rule which gives the 9 Lux v. Haggin, 69 Cal. 255, 10 greatest right to the greatest number, Pac. 674. 112a Ch. 6. HISTOEICALr 1866 TO THE PEESENT. (3d ed.) 127 much of the water diverted must necessarily be dissipated. 10 No precise line of separation between the regions so characterized is pointed out, and the attempted classification is itself somewhat uncertain and indefinite. It would seem there could be no doubt that the law, derived from the same sources, is the same every- where in California. .... Whatever is the general law bearing on the subject, it is the same everywhere within the limits of the State." 11 (3d ed.) 112a. Same. The first thing that strikes attention in this con- flict of opinion is thus expressed by the Nebraska court : 12 "In all States which, like our own, are but partially arid, the common law 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. Cali- fornia, where the common law is (legally speaking) in force for private lands (as well as appropriation for public land), is as arid in some parts as are any of the other States. 13 In one case, 14 speak- ing 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 interior States are sparsely settled and not largely developed. Be- 10 Where riparian rights are reject- 13 The portion of the public do- ed, the law of appropriation is not main lying between the ninety-ninth relaxed on this account, and it is meridian of longitude west from no argument that the diversion "leaves Greenwich and the Pacific Ocean is these lands valueless and of no bene- arid, and generally incapable of culti- fit for the only and natural uses to vation except by means of irrigation; which they could be applied." That that region embraces more than one- is held not to be material. Stern- third of the geographical area of berger v. Seaton etc. Co. (1909), 45 the United States, and comprises New Colo. 401, 102 Pac. 168. Compare Mexico, Arizona, Colorado, Wyoming, Cascade Co. v. Empire Co. (Colo.), Utah, Idaho, Montana and Nevada 181 Fed. 1011. and large portions of the States of 11 To the same effect, Meng v. Cof- Oregon, California, Nebraska, Kansas, fey, 67 Neb. 500, 108 Am. St. Eep. and Texas and of the Territories of 697, '93 N. W. 715, 60 L. E. A. 910. Washington and Dakota. Willey v. But see, in Washington, infra, sec. Decker, 11 Wyo. 496, 100 Am. St. 635. Rep. 939, 73 Pac. 210. 12 Meng v. Coffey, 67 Neb. 500, 1* Hewitt v. Story, 64 Fed. 510. 108 Am. St. Kep. 697, 93 N. W. 713, 12 C. C. A. 250, 30 L. E. A. 265. 60 L. E. A. 910. 128 (3 371 >- n 8 ^ orr ' them binding as res adjudicata, but Mm. Rep 90 and Same v. Dangberg concluded that on the facts, the re- 2 Saw 4oO Fed Cas No. 14,3,0, 8 gul wouW be h game fl ' either Morr. Mm Rep. 113, both concerning ^ common ^ Qr iation J, lg tS ^ m 7 aC lo ; Q V ' Ndwm.Mta. is The chief question had been be- Co 47 Fed. 199, concerning rights twegn riyal appr 4 opriatorS) and in rec . ognizing their rights, Judge Field had 16 Jones v. Adams, 19 Nev. 78, 3 sa i<3 . "The government being the sole Am. St. Rep. 788, 6 Pac. 442. proprietor of the public lands, whether 17 In Van Sickle v. Haines, Judge bordering on the streams or otherwise, John R. Garber, then on the supreme there was no occasion for the appli- bench in Nevada, said against the cation of the common-law doctrine of appropriator: "On every point es- riparian proprietorship with respect sential to the case of the petitioner, to the waters of those streams." not merely the weight of authority, Field, J., in Atchison v. Peterson, 20 but all the authorities, are against Wall. (87 U. S.) 507, 22 L. Ed. 414, him." Fifteen years later he led the 1 Morr. Min. Rep. 583. 115 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 135 existing appropriates against later patent to riparian land, 19 and held that the act of 1866 so affirmed in order to prevent the existing appropriator from losing his right on a later settlement and patent- ing of the land to someone else. But whether a settler could, when his land became private, assert his riparian right against new ap- propriators had been expressly left open in the United States supreme court's decisions. In Basey v. Gallagher, 20 it was said: ''Neither party has any title from the United States. No question as to the right of riparian proprietors can therefore arise. It will be time enough to consider those rights when either party has ob- tained the patent from the government." 21 (3d ed.) 115. Lux v. Haggin. A case arose out of the use of the Kern river for irrigation the case of Lux v. Haggin, 22 decided in 1886. The defendant, J. B. Haggin, having organized an irriga- tion company, claimed the right to divert the entire waters of the Kern river by an appropriation to that effect, denying that any vested rights which, under the rule of riparian rights, would have prevented this, could be recognized in California. It is probably the most extended opinion in the California reports, covering, as it does, two hundred pages. The previous cases had almost all arisen out of mining, but here was one in the San Joaquin 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, emphatically: "The doctrine of appropriation so called is not the doctrine of the common law. ' ' 23 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 be- comes private, remaining subject to appropriations made prior to that time, 24 but free from all hostile appropriations thereafter made. Citing Crandall v. Woods, 25 the court declared this always 19 Broder v. Natoma Water Co., hence in court for eight years. Mr. 101 U. S. 274, 25 L. Ed. 790, 5 Morr. Justice McKinstry wrote the opinion. Min. Rep. 33. 23 Pages 387-399. 20 20 Wall. (87 U. 8.) 670, 22 L. 24 As to patents before 1866, the Ed. 452, 1 Morr. Min. Rep. 683, Field, court distinguished Van Sickle v. J. Haines, though somewhat reluctantly, 21 See infra, sec. 261. on the ground that in Lux v. Haggin 22 69 Cal. 255, 10 Pac. 674. A the patents had all been issued, or former opinion to the same effect, not related back to times, prior to the officially reported, being withdrawn appropriation, 'while the reverse was on rehearing, is given in 4 Pac. 919. the fact in the Van Sickle case. The case arose in 1878, and was 25 Supra, sec. 113. 136 (3ded.) Pt.H. CALIFOENIA - COLORADO DOCTRINES. 116 to have been the law in California. Section 1422 of the Civil Code was held to be merely declaratory of this. 1 Riparian rights would further be protected on constitutional principles; to deny them would be taking the landowner's property without due proc- ess of law, and an unwarranted interference by the State with the primary disposal of the Federal lands. 2 The contentions that the section of the Civil Code 3 providing that "The rights of riparian proprietors 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 exist- ing at the date of the enactment of the Civil Code, the Civil Code having no prospective operation, were rejected. The system of riparian rights was declared to be in effect in California in full force, subject only to prior appropriations made before the land became private. 4 The court decided against Haggin. That ri- parian rights were not done away with by the law of appropriation had all along been the contention of text-writers. 5 It was but a reassertion regarding water of what Boggs v. Merced Co. had once for all established regarding mines on private land. (3d edj 116. Result of Lux v. Haggin. Riparian rights are now firmly established in California side by side with the law of appro- priation, the former for public land and the latter for private land. In theory, the two systems are of equal importance, and receive equal consideration from the court; but practically, since the larger part of the agricultural lands in California have now passed into private hands, the common law of riparian rights has a wider application so far as concerns acquisition of new uses hereafter. 1 Pages 368, 375, 380. "It is 2 "Neither a grantee of the United difficult to believe that the section, States, nor the grantee of a private so far as it applies to riparian lands person, who was a riparian owner not those of the State, is other than when the code was adopted, need rely declaratory of the pre-existing law. for protection on section 1422. Such It certainly was intended to be de- persons are protected by constitu- claratory in so far as it announces tional principles." Lux v. Haggin. the protection of all private persons 3 Sec. 1422. who had acquired riparian rights 4 See Lindley on Mines, 2d ed., sec. from any source before the provi- 838, p. 1504. sions of the code went into opera- 5 Pomeroy on Riparian Rights, tion, since (if the common-law right chapters III, VII; Blanchard and existed) such persons were protected Weeks on Mining Claims and Water independent of the section." Lux v. Rights, p. 696; Yale on Mining Haggin. Claims and Water Rights, p. 175. S 117 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 137 In 1887, the year following the decision in Lux v. Haggin, sec- tion 1422 of the Civil Code, protecting the rights of riparian pro- prietors, was repealed ; 6 but as Lux v. Haggin was decided largely independent of that section, the law in California remains undis- turbed by this repeal. 7 Many cases since then have affirmed Lux v. Haggin. 8 The result in California is that the law of appro- priation is confined to acquisitions on public lands, and the com- mon law of riparian rights is becoming the general law for streams which have not hitherto been diverted, and which now in some part usually flow through private land. 9 Most emphatically is it asserted in the late case of Miller v. Madera etc. Co. 10 Recent cases in California involve chiefly the law of riparian rights, and the few decided under the law of appropriation show a decided tendency to cease citing the older cases on appropriation, assuming the doctrines there laid down as established and familiar law. This indicates that in California the law of appropriation has taken its place as a complete system, diminishing in impor- tance, past the formative period in which the system may be said still to remain in the younger States where it is the sole law. (3d ed.) 117. Riparian Rights Upheld in Ten States and Territories. The combined system of appropriation and riparian rights existing side by side (the former regarding streams on public lands and the latter for all other streams), which, like the law of appro- priation, was first firmly established in California, and has been called the "California doctrine," 11 is in force in the following jurisdictions: California, Kansas, Montana, North Dakota, Okla- Cal. Stats. 1887, p. 144. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 7 "The repeal of a statute will not 64 L. R. A. 236, as the decision in destroy vested rights [to water]." question, but such reference by him is Knowles, J., in Thorp v. Freed, 1 without warrant. On the contrary, Mont. 658. the California court has voluntarily 8 Infra, sec. 117. Testimony of adopted for its new law of percolating Congressman J. C. Needham, in Kan- water a system very similar to the sas v. Colorado, 206 U. S. 46, 27 Sup. law of riparian rights. See Miller v. Ct. Rep. 655, 51 L. Ed. 956: "I have Bay Cities Co., 157 Cal. 256, 107 Pac. been out of practice for six years, 115, 27 L. R. A., N. S., 772; Hudson and cannot now name any decision of v. Dailey (1909), 156 Cal. 617, 105 the supreme court of the State of Cali- Pac. 748. fornia which intimated that the court 9 Infra, sec. 231, appropriation on regretted the decision in Lux v. Hag- private land. gin, but I could find it." It will be 10 155 Cal. 59, 99 Pac. 502, 22 L. hard for him to find what does not R. A., N. S., 391. exist. He elsewhere refers to Katz u Willey v. Decker, 11 Wyo. 496, v. Walkinshaw, 141 CaL 116, 99 Am. 100 Am. St. Rep. 939, 73 Pac. 210. 138 (3<3 ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 117 homa (possibly), South Dakota, Washington, and partially in Nebraska, Oregon and Texas, and has been applied in the supreme court of the United States. 12 12 (This list is based upon the hold- ings of the courts, and at the same time, it must be noted that the legis- latures in most of these States have very recently, as below set forth, adopted statutes in many ways op- posed to the common law, but which their courts have not yet reviewed.) California. Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674. See, also, Crandall v. Woods, 8 Cal. 136, 1 Morr. Min. Rep. 604; 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, 10(5 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18, 30 L. R. A. 390; San Luis Water Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075 ; 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; Anaheim Water Co. v. Fuller, 150 Cal. 327, 88 Pac. 978, 11 L. R. A., N. S., 1062; Duckworth v. Wat- sonville Water Co., 150 Cal. 520, 89 Pac. 338 ; Huff ner v. Sawday, 153 Cal. 86, 94 Pac. 424; Rickey L. & C. Co. v. Glader (1908), 153 Cal. 179, 94 Pac. 768; Miller v. Madera etc. Co., 155 Cal. 59, 99 Pac. 502, 22 L. R. A., N. S., 391 ; Hudson v. Dailey, 156 Cal. 617, 105 Pac. 748; Miller v. Bay Cities W. Co., 157 Cal. 256, 107 Pac. 115, 27 L. R. A., N. S., 772; San Joaquin etc. Co. v. Fresno etc. Co., 158 Cal. 626, 112 Pac. 182. In the Federal courts; California P. & A. Co. v. Enterprise Co., 127 Fed. 741; A.nderson v. Bassman, 140 Fed. 14. Kansas. Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, 70 L. R. A. 971. See, also, Mo. Pac. Ry. Co. v. Keys, 55 Kan. 205, 49 Am. St. Rep. 249, 40 Pac. 275 ; Parker v. City of Atchi- son, 58 Kan. 29, 48 Pac. 631; Mon- tague v. Bd. Co. Com., 7 Kan. App. 160, 53 Pac. 145 ; Campbell v. Grimes, 62 Kan. 503,' 64 Pac. 62. In the Federal courts, Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. Rep. 655, 51 L. Ed. 956. Montana. Prentice v. McKay (1909), 38 Mont. 114, 98 Pac. 1081 (affirming Smith v. Denniff, 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398, 50 L. R. A. 741). Smith v. Denniff had left room for doubt,, but Prentice v. McKay seems clear. See, also, Thorp v. Freed, 1 Mont. 651. In the Federal courts, Cruse v. McCauley, 96 Fed. 369; Howell v. Johnson, 89 Fed. 556; and cf. Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210, so construing Smith v. Denniff. Whether riparian rights exist in Mon- tana was recently expressly left open in Winters v. United States, 74 C. C. A. 666, 143 Fed. 740, 207 U. S. 564, 28 Sup. Ct. Rep. 208, 52 L. Ed. 340, and Morris v. Bean, 146 Fed. 423. See 17 Yale Law Journal, 585, where Mr. Justice Hunt, of the Montana Federal court, says riparian rights are rejected in Montana. However, the case above now seems to have set- tled the point. Nebraska. Crawford etc. Co. v. Hathaway, 60 Neb. 754, 67 Neb. 325, 108 Am. St. Rep. 647, 60 L. R. A. 889, 84 N. W. 271, 93 N. W. 781. See, also, Clark v. Cambridge & A. Irr. Co., 45 Neb. 798, 64 N. W. 239; Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, 60 N. W. 717, 28 L. R. A. 581; Slattery v. Harley, 58 Neb. 575, 79 N. W. 151; Plattsmouth Water Co. v. Smith, 57 Neb. 579, 78 N. W. 275; Meng v. Coffey, 67 Neb. 500, 108 Am. St. Rep. 697, 93 N. W. 713, 60 L. R. A. 910; Dunn et al. v. Thomas, 69 Neb. 683, 96 N. W. 142 ; McCook I. & W. P. Co. v. Crews, 70 Neb. 115, 102 N. W. 249; Gill v. Lydick, 40 Neb. 508, 59 N. W. 104; Barton v. Union Cattle Co., 28 Neb. 350, 26 Am. St. Rep. 340, 44 N. W. 454, 7 L. R. A. 457; Cline v. Stock, 71 Neb. 70, 98 N. W. 454, 102 N. W. 265; Kinkead v. Turgeon, 74 Neb. 580, 104 N. W. 1061, 109 N. W. 744, 1 L. R. A., N. S., 762, 13 Ann. Gas. 43. The doc- trine of riparian rights is the sole doctrine in the eastern part of the 118 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 139 (3d ed.) 118. Riparian Rights Rejected in Eleven States and Terri- tories. In the following States and Territories the common law of riparian rights is rejected in toto, Lux v. Haggin and similar cases being either not considered, or commented upon and con- sidered, but rejected. The early California decisions had long been practically au- thority throughout the West for waters on the public domain, and State, and riparian rights are abro- gated by statute as to all lands pat- ented since 1889. (Infra, sec. 126.) North Dakota. Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570. In the Federal courts, Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L. Ed. 761. The act of Congress of June 11, 1906, 34 Stats. 234, abro- gates riparian rights in the Black Hills Forest Reserve. Oklahoma. Markwardt v. City of Guthrie, 18 Okl. 32, 90 Pac. 26, 9 L. R. A., N. S., 1150, 11 Ann. Gas. 581, semble. Town of Jefferson v. Hicks (1909), 23 Okl. 684, 102 Pac. 79, semble. The matter has not been specifically in question, but the latter says in passing: "This court has held, in several cases, that the rights of landowners as to watercourses and as to surface water are determined in this jurisdiction by the rules of the common law." Oregon. Carson v. Centner, 33 Or. 512, 52 Pac. 506, 43 L. R. A. 130. See, also, Jones v. Conn, 39 Or. 30, 87 Am. St. Rep. 634, 64 Pac. 855, 65 Pac. 1068, 54 L. R. A. 630 ; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1081, 102 Pac. 728. The last case cited, in establishing a new doc- trine, below considered, for Oregon, states that Taylor v. Welsh, 6 Or. 198, is the first Oregon case bearing upon riparian rights. A long list of the Oregon cases upon the subject is col- lected in Hough v. Porter. South Dakota. Lone Tree D. Co. v. Cyclone D. Co., 15 S/ D. 519, 91 N. W. 352; Same v. Same (S. D.), 128 N. W. 596. See, also, Metcalf v. Nelson; 8 S. D. 87, 59 Am. St. Rep. 746, 65 N. W. 911; Stenger v. Tharp, 17 S. D. 13, 94 N. W. 402 ; Lone Tree D. Co. v. Rapid City E. & G. L. Co., 16 S. D. 451, 93 N. W. 650. See Driskill v. Rebbe, 22 S. D. 242, 117 N. W. 135; Redwater Co. v. Reed (S. D.), 128 N. W. 702; Redwater Co. v. Jones (S. D.), 130 N. W. 85. In the Federal courts, Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L.,Ed. 761. See Rev. Code, sec. 278. Texas. McGhee etc. Co. v. Hudson, 85 Tex. 587, 22 S. W. 398. See, also, Haas v. Choussard, 17 Tex. 588; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631; Tolle v. Correth, 31 Tex. 362, 98 Am. Dec. 540; Flem- ing v. Davis, 37 Tex. 173; Baker v. Brown, 55 Tex. 377; Mud Cr. Irr. A. & M. Co. v. Vivian, 74 Tex. 170, 11 S. W. 1078; Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758; Cape v. Thompson, 21 Tex. Civ. App. 681, 53 S. W. 368; Clements v. Wat- kins Land Co., 36 Tex. Civ. App.339, 82 S. W. 665; Watkins L. Co. v. Clements, 98 Tex. 578, 107 Am. St. Rep. 653, 86 S. W. 733, 70 L. R. A. 964; Santa Rosa etc. Co. v. Pecas etc. Co. (Tex. Civ. App.), 92 S. W. 1016. In Texas on the arid lands riparian rights are not strictly en- forced against appropriators, there being a different rule for the arid and nonarid lands. Barrett v. Met- calf, 12 Tex. Civ. App. 247, 33 S. W. 758. Arid regions in Texas are de- fined in Hall v. Carter, 33 Tex. Civ. App, 230, 77 S. W. 19, as those por- tions where rainfall is insufficient for agricultural purposes and irrigation is necessary; and merely that irrigation would be beneficial, though not neces- sary, is insufficient. See Biggs v. Leffingwell (Tex. Civ. App.), 132 S. W. 902. Washington. Benton v. Johncox. 17 Wash. 277, 61 Am. St. Rep. 912, 49 Pac. 495, 39 L. R. A. 107. See, also. Shotwell v. Dodge, 8 Wash. 337. 36 Pac. 254; Sander v. Wilson, 34 Wash. 659, 76 Pac. 280 ; City of New What- com v. Fairhaven L. Co., 24 Wash. 493, 64 Pac. 735, 54 L. R. A. 190; Nesalhous v. Walker, 45 Wash. 621, 140 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 118 had been ratified by the act of 1866, establishing free appropria- tion upon public land. In 1872 Colorado was still a Territory, and the case of Yunker v. Nichols, the first case in Colorado upon the subject, arose in the territorial court. 13 The case is quoted later herein on the point actually asserted, and as to which the writer conceives it is no longer law in any jurisdiction. 133 The question was not one of appropriation of water, but of right of way for a ditch. There were three opinions given, none exactly the same, holding that an irrigator has a way of necessity over another's land to water. It did not involve a dispute as to rights in the water it- self. But the court was emphatic that all landowner rights what- soever are subject in Colorado to the necessity of those diverting water for irrigation. Though hence only dictum in its absolute re- jection of riparian ghts, it was very emphatic. Mr. Mills, of the Colorado bar, says of it : 14 ' ' It practically swept away the common- law doctrine of riparian rights as applicable to Colorado, long before a case actually arose between an appropriator of water for irrigation and a riparian claimant along the natural stream. Such a case did not actually arise until some ten years later." In the next case after Yunker v. Nichols, 15 the question was also of .right of way over land for a ditch, not of riparian right to water. The prevailing opinion seems to be against the Yunker case as to a way of necessity, but the dissenting opinion of Thatcher, J., strongly reasserts it, saying that it "is founded on the imperious laws of nature, with reference to which it must be presumed the government parts with its title." In the next case, 16 the extent of the easement was limited "to the narrowest limits," with the least possible damage; "it has been well said that the necessity of 88 Pac. 1032; Kendall v. Joyce, 48 rights, citing the Western cases, was Wash. 489, 93 Pac. 1091; Hollet v. urged in Wisconsin, Huber v. Mer- Davis (1909), 54 Wash. 326, 103 Pac. kel, 117 Wis. 355, 98 Am. St. Rep. 423; Mason v. Yearwood (Wash. 933, 94 N. W. 354, 62 L. R. A. 589, 1910), 108 Pac. 608. In Benton v. and in Illinois, Druley v. Adam, 102 Johncox, the court cites numerous 111. 202, but in both the court refused other cases. to recognize appropriation at all. In United States Supreme Court. Hawaiian Islands it is expressly left Sturr v. Beck, 133 U. S. 541, 10 Sup. open whether the common law of ripa- Ct. Rep. 350, 33 L. Ed. 761, is a rian rights is in force. Wong Long positive decision in support of the v. Irwin (1896), 10 Hawaii, 271. California doctrine. (Arose on ap- 13 1 Colo. 551, 8 Morr. Min. Rep. peal from Territory of Dakota.) See, 64. also, Winters v. United States, 207 I3a Infra, sec. 223 et seq. U. S. 564, 28 Sup. Ct. Rep. 208, 52 14 Mills' Irrigation Manual, p. 34. L. Ed. 340. 15 Schilling v. Rominger, 4 Colo. Miscellaneous. The Western law of 100. appropriation in lieu of riparian W Crisman v. Heiderer, 5 Colo. 596. 118 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 141 one man's business is not to be made the standard of another man's right." Coffin v. Left Hand Ditch Co. 17 is the next case. The appro- priation had been made while the water flowed over public land. Those claiming as riparian owners had acquired their land title after the diversion, and would have no rights under the California doctrine, 18 for the point actually decided, "If appropriated by one prior to the patenting of such soil by another, it is a vested right, entitled to protection, though not mentioned in the patent, " 19 is part of the California doctrine. The California court considered the Coffin case in Lux v. Haggin, and pointed out that the Colo- rado court in actual decision was only protecting old appropria- tions made before the settlement. The Coffin opinion, however, made no distinction between prior and subsequent diversions, and declared that on the ground of imperative necessity no settlers can claim any right aside from appropriation. This dictum rejecting the riparian rights of the settler against new appropriations is generally taken as the original precedent for the rejection of the common law in toto under what is now called the Colorado doctrine. The Colorado doctrine is in force in the following jurisdictions: Alaska, Arizona, Colorado, Idaho, New Mexico, Nevada, Utah, Wyo- ming, and partially in Nebraska, Oregon and Texas, and has been very recently sanctioned and applied by the supreme court of the United States. 20 17 6 Colo. 443. sub. nom. 4 Ariz. 346; Austin v. 18 Although the patent issued be- Chandler, 42 Pac. 483; Boquillas etc. fore 1866, that is immaterial under Co. v. Curtis, 11 Ariz. 128, 89 Pac, the California doctrine. The Coffin 504; S. C., 213 U. S. 339, 29 Sup. case on its facts was similar to Van Ct. Rep. 493, 53 L. Ed. 822 ; Arizona Sickle v. Haines, and the actual deei- Copper Co. v. Gillespie (Ariz. 1909), sion was only a rejection of the Van 100 Pac. 465. Sickle "trespasser" theory above set Colorado. Coffin v. Left Hand forth. Supra, sec. 87. Ditch Co., 6 Colo. 443. See, also, 19 Page 449. Yunker v. Nichols, 1 Colo. 551, 8 20 Alaska. Van Dyke v. Midnight Morr. Min. Rep. 64; Schilling v. Rom- Sun Co. (C. C. A. 1910), 177 Fed. inger, 4 Colo. 100; Crisman v. Heid- 85. (Prior to this decision the mat- erer, 5 Colo. 596; Hammond v. Rose, ter was in doubt. See Ketchikan etc. 11 Colo. 526, 7 Am. St. Rep. 258, 19 Co. v. Citizens' etc. Co., 2 Alaska, Pac. 466; Oppenlander v. Left Hand 120; Thorndyke v. Alaska Pers<>ver- Ditch Co., 18 Colo. 142, 31 Pac. 854; ance Co., 164 Fed. 657; McCloskey v. Crippen v. White, 28 Colo. 298, 64 Pacific Coast Co., 160 Fed. 794, 87 Pac. 184; Sternberger v. Seaton etc. C. C. A. 568.) See, also, Madigan v. Co. (1909), 45 Colo. 401, 102 Pae. Kougarok M. Co., 3 Alaska, 63; Me- 168 (citing this book, 2d ed.) ; Farland v. Alaska etc. Co., 3 Alaska, Snyder v. Colorado etc. Co. (C. C. A.), 308. 181 Fed. 62; Cascade etc. Co. v. Em- Arisona. Clough v. Wing, 2 Ariz. pire etc. Co. (Colo.), 181 Fed. 1011. 371, 17 Pac. 453 ; Chandler v. Austin, But it seems that the common law of 142 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 118 In some of these the decision is aided by constitutional or statu- tory provisions cited and construed in the cases. In others, notably Nevada, it was reached without statute. In all of them the point riparian rights applies to domestic uses (infra, sec. 308), and there are decisions in the Federal courts for Colorado based on the common law of riparian rights generally. Mason v. Cotton, 4 Fed. 792, 2 McCrary, 82; Schwab v. Beam, 86 Fed. 41, 19 Morr. Min. Rep. 279. (Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. Rep. 655, 51 L. Ed. 956, evaded the issue upon the law of waters.) In a late case, Humphreys etc. Co. v. Frank (1909), 46 Colo. 524, 105 Pac. 1093, it was left open whether a riparian owner "has still some rights which the law recognizes," though subordinate to that of a prior appropriator. Idaho. Drake v. Earhart, 2 Idaho, 750, 23 Pac. 541; Boise etc. Co. v. Stewart, 10 Idaho, 38, 77 Pac. 25, 321 ; Taylor v. Hulett, 15 Idaho, 265, 97 Pac. 39, 19 L. R. A., N. S., 535; Hutchinson v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059, citing this book, 2d ed. In the Federal courts, see Krall v. United States, 79 Fed. 241, 24 C. C. A. 543. But riparian rights have been very lately held to exist in Idaho as regards access to navigable waters (Shepard v. Coeur d'Alene Co. (1909), 16 Idaho, 293, 101 Pac. 591), and exist also as against any- one diverting the stream without com- plying with the rules for securing a valid appropriation according to law. Hutchinson v. Watson D. Co., 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059, citing Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, and the second edition of this book. Nebraska. See note 12 of the pre- ceding section. New Mexico. Trambley v. Luter- man, 6 N. M. 15, 27 Pac. 312 ; United States v. Rio Grande etc. Co., 9 N. M. 303, 51 Pac. 674; S. C., 174 U. S. 706, 19 Sup. Ct. Rep. 770, 43 L. Ed. 1136; Albuquerque etc. Co. v. Gutier- rez, 10 N. M. 177, 61 Pac. 357; S. C., Gutierres v. Albuquerque Land etc. Co., 188 U. S. 545, 23 Sup. Ct. Rep. 338, 47 L. Ed. 588; Hagerman etc. Co. v. McMurray (N. M. 1911), 113 Pac. 823, citing the second edition of this book. Nevada. Reno etc. Co. v. Steven- son, 20 Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 317, 4 L. R. A. 60; Twaddle v. Winters, 29 Nev. 28, 85 Pac. 284, 89 Pac. 2S9 (though Van Sickle v. Haines, 7 Nev. 249, 15 Morr. Min. Rep. 201, had been the other way. Jones v. Adams, 19 Nev. 78, 3 Am. St. Rep. 788, 6 Pac. 442, is frequently referred to as overruling the Van Sickle case, but it did so only on a different point). In the Federal courts, Van Sickle v. Haines had been followed (before it was overruled) by Union etc. Co. v. Fer- ris, Fed. Gas. No. 14,371, 2 Saw. 176, 8 Morr. Min. Rep. 90; Union etc. Co. v. Dangberg, Fed. Gas. No. 14,370, 2 Saw. 450, 8 Morr. Min. Rep. 113, which were practically overruled by Union etc. Co. v. Dangberg, 81 Fed. 73. See, also, Anderson v. Bassman, 140 Fed. 14. Oregon. See note 12 of the preced- ing section. Texas. Se.e note 12 of the preced- ing section. Utah. Stowell v. Johnson, 7 Utah, 215, 26 Pac. 290; Salt Lake City v. Salt Lake etc. Co., 25 Utah, 456, 71 Pac. 1069; Nash v. Clark, 27 Utah, 158, 101 Am. St. Rep. 953, 75 Pac. 371, 1 L. R. A., N. S., 208; S. C., Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. Rep. '676, 4 Ann. Cas. 1171, 49 L. Ed. 1085; Cole v. Richards Irr. Co., 27 Utah, 205, 101 Am. St. Rep. 962, 75 Pac. 376. But see Willow Cr. etc. Co. v. Mclntyre, 21 Utah, 248, 81 Am. St. Rep. 687, 60 Pac. 943, 51 L. R. A. 280. . Wyoming. 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. United States Supreme Court. At the time of the second edition of this book there had been no actual de- cision of the United States supreme court enforcing the Colorado doctrine against a riparian owner, yet cases 118 Ch. 6. HISTOEICAI/ 1866 TO THE PRESENT. (3d ed.) 143 is to-day covered by statute. 21 There has been, however, an adop- tion of the common law in all the Western States as the basis of their general law. 22 These States generally arrived at their conclusion in the same way as Colorado. In the earliest of them the facts usually pre- sented an appropriation on public land prior to the riparian settle- ment, and the question really was only upon the "trespasser" theory of Van Sickle v. Haines ; that is, whether a subsequent patent could oust an existing appropriator as a mere trespasser. Such, for ex- ample, were the cases in Colorado, 23 Idaho, 24 Nevada 25 and New Mexico, on whose facts the appropriator was prior to the riparian settlement. In rejecting the principle of the Van Sickle case (with its holding that appropriators, even those antedating the riparian settlement, were mere trespassers), so great was the popular dis- approval and the reaction, that the courts of these younger States threw aside the common law of riparian rights absolutely (even should the riparian settlement in turn precede the diversion) and have ever since refused to recognize it at all, and therewith have refused to recognize any proprietary water-rights in a landowner as such under any circumstances, whether it be the United States or its private successors holding land patents. For this the California decisions were misconceived to be au- thority which the younger courts believed they were following. For example, in New Mexico a case arose which, like the Coffin case, presented an appropriation prior to the riparian settlement, but the New Mexico court l cites the California cases, as support- contained much matter showing a clear 21 The constitutional provision re- determination to uphold the Colorado lied on in Colorado is Colorado con- doctrine in States that had adopted stitution, article 16, sections 5 and 6; it. United States v. Eio Grande etc. in Idaho, article 15, section 3; in Co., 174 U. S. 706, 19 Sup. Ct. Rep. Wyoming, article 1, section 31. 770, 43 L. Ed. 1136; Gutierres v. Al- 22 U. S. v. Rio Grande etc. Co., 174 buquerque etc. Co., 188 U. S. 545, 23 U. S. 706, 19 Sup. Ct. Rep. 770. 43 Sup. Ct. Rep. 338, 47 L. Ed. 588; L. Ed. 1136. Clark v. Nash, 198 U. S. 361, 25 Sup. 23 Coffin v. L. H. D. Co. and Tynan Ct. Rep. 676, 49 L. Ed. 1085, 4 Ann. V- Despain, supra, patent issued be- Cas. 1171; Kansas v. Colorado, 206 U. f ore iggg S. 46, 27 Sup. Ct. Rep. 655, 51 L. o^ r> i -d u Ed. 956. Sin?e then, the decision in \ rake v. Earhart swpra, and Boquillas etc. Co. v. Curtis (1909, SfiH^S T'lJ ^ i^ A P from Arizona), 213 U. S. 339, 29 Sup! 11 ^ ?rr f ' i1S& ? ^ \ Ct. Rep. 493, 53 L. Ed. 822, very em- ^'^' 101 Pac ". \9 o9 ' P atent issued phatically applied the doctrine against after the appropriation. a riparian owner. See, also, Los 25 Jones v - Adams, 19 Nev. 78, 3 Angeles v. Los Angeles etc. Co. Am - St - Re P- 7 88, 6 Pac. 442. (1910), 217 U. S. 217, 30 Sup. Ct. l Trambley v. Luterman. 6 N. M. Rep. 452 , 54 L. Ed. 736. 25, 27 Pac. 312. 144 (3ded.) Pt. II. CALIFORNIA - COLOBADO DOCTBINES. 119 ing its ruling that "the common law, as to rights of riparian owners, is not in force in this Territory nor in California, Nevada, and other Pacific States." The California decisions were not clearly understood. (3d ed.) 119. Same "Landowner" Statute. In reaching the con- clusion in Colorado, an early statute (quoted in the part of this book relating to statutes) was referred to. The Colorado terri- torial legislature in 1861 2 provided that all landowners on the banks of a stream are entitled to use the water for irrigation, and in 1862, 3 that no stream shall be diverted to the detriment of any landowner along it. In 1864, 4 "who have a priority of right" was inserted with reference to the landowner. As between such land- owners themselves an equitable apportionment (and not priority) was provided for. 5 This statute has been copied in other States. 6 The Colorado court held it to be a positive rejection of riparian rights because it permitted irrigation. 7 So did the Wyoming court. 8 In Montana, South Dakota and Washington, however, and partly in Oregon, the contrary is declared. Instead of rejecting riparian 2 Stats. 1861, p. 67, sec. 1; Rev. Stats. 1908, sec. 3165; M. A. S. 2256 et seq. 3 Stats. 1862, p. 48, sec. 48. 4 Stats. 1864, p. 68, sec. 32. 5 Rev. Stats. 1908, sec. 3166; Gen. Stats., sees. 1375, 1714; Laws 1861, p. 68, sec. 4. See Rev. Stats. 1908, sec. 3427. 6 Colorado. As just cited. See Colorado Stats., sec. 1433, infra. Idaho. (Quoted in the part of this book relating to statutes, sec. 1435, infra.) Rev. Stats. -3184, quoted in Schodde v. Twin Falls etc. Co., 161 Fed. 43, 88 C. C. A. 207. Likewise McLean's Rev. Codes, sec. 3299; Rev. Stats. 1887, sec. 3180, cited in dis- senting opinion in Drake v. Earhart, 2 Idaho, 750, 23 Pac. 541. Montana. Bannock's Stats. 367, sees. 1, 2; Thorp v. Freed, 1 Mont. 651. North Dalcota. Rev. Codes, Civ. Code, sec. 4798; Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570. Oregon. B. & C. Comp., sec. 5000, semblc. See Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pae. 1083, 102 Pac. 728. South Dalcota. (As quoted in the part of this book relating to statutes, see. 1445, infra.) Rev. Codes, sees. 278, 2563; Amd. Stats. 1899, sec. 2687; cf. Stats. 1907, p. 382; Lone Tree Co. v. Cyclone Co., 15 S. D. 519, 91 N. W. 354." Cf. Stats. 1911, e. 263, p. 468. Washington. Laws 1873, p. 520; Laws 1899, c. 131, p. 261; Pierce's Codes 1905, sec. 5123; Hill's Codes, sees. 1718, 1761, 1774. See Benton v. Johncox, 17 Wash. 277, 61 Am. St. Rep. 912, 49 Pac. 495, 39 L. R. A. 107; Weed v. Goodwin, 36 Wash. 31, 78 Pac. 36; Dickey v. Maddux, 48 Wash. 411, 93 Pac. 1090; Nielson v. Sponer, 46 Wash. 14, 123 Am. St. Rep. 910, 89 Pac. 155; Hollett v. Davis, 54 Wash. 326, 103 Pac. 423; State ex rel. Galbraith v. Superior Court (Wash. 1910), 110 Pac. 429. Wyoming. Comp. Laws 1867 (1876), c. 65, sec. 1; Rev. Stats. 1317; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210. 7 Coffin v. Left Hand D. Co., and other cases cited supra, sec. 118. 8 Willey v. Decker, 11 Wyo. 496, 100 Am. "St. Rep. 939, 73 Pac. 210; Moyer v. Preston, 6 Wyo. 308, 71 Am. St. Rep. 914, 44 Pac. 845. 120 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 145 rights the statute is held a simple exposition thereof, preserving the stream to the neighboring landowners, who have settled prior to the appropriation, and a declaration that a possessory right to the land should be equivalent to the fee for this purpose. 9 A casual reading of the statute certainly would give the impression that it was very similar in intent to the early California provision that "The rights of riparian proprietors are not affected by the provi- sions of this title." 10 It certainly sounds like the expressions used by courts following the California doctrine in expressing the ripa- rian owner's right to irrigate. The insertion of "priority of right" in 1864 strengthens this similarity, for the California doctrine, at its foundation, requires the riparian owner to have settled prior to the appropriation if he would assert his riparian right. 11 In Oregon the court recently, while departing from its previous rulings and rejecting riparian rights to a considerable extent, relied on this act as prohibiting a rejection in tot o. 12 Nevertheless, it has been one of the features relied on in Colorado and Wyoming to support the absolute rejection of riparian rights, as above set forth. (3d ed.) 120. Same Collateral Results of the Rejection. This re- jection of riparian rights under the Colorado doctrine is held to 9 Thorp v. Freed, 1 Mont. 651, per statute might be taken as a protection Wade, C. J. ; Lone Tree D. Co. v. of riparian rights after patent issued, Cyclone D. Co., 15 S. D. 519, 91 N. though refusing to pass upon the ef- W. 354; Benton v. Johncox, 17 Wash. feet of such an act before patent. 277, 61 Am. St. Rep. 912, 49 Pac. Jennison v. Kirk, 98 U. S. 453, 25 498, 39 L. R. A. 107; Dickey v. Mad- L. Ed. 240, 4 Morr. Min. Rep. 504, dux, 48 Wash. 411, 93 Pac. 1090; concerning the proviso in the act of Kendall v. Joyce, 48 Wash. 489, 93 1866. Pac. 1091. Cf., also, Bigelow v. 12 Sayingc "And in this connection Draper, 6 N. D. 152, 69 N. W. 570, it will be observed that section 5000, and dissenting opinion of Berry, J., in B. & C. Comp., protects the owner Drake v. Earhart, 2 Idaho, 750, 23 contiguous to the stream, as against Pac. 541. those claiming under the act of which 10 Cal. Civ. Code, sec. 1422. So, in that section is a part, in his right to Lux v. Haggin, a point was made of the flow of the stream to the extent an earlier California section, still required for household, domestic, and more similar to the Colorado one; other uses incident thereto, with suffi- Cal. Stats. 1863-64, p. 375, sec. 10, cient quantity for irrigation purposes providing: "No person or persons to the extent then actually needed and shall divert the waters of any river in use. An exception to that extent or stream from its natural channel is accordingly made in favor of the to the detriment of any person or per- landowner, as against, and only to the sons located below them on the extent of, such rights as may be as- stream." serted under the act." Hough v. 11 In the supreme court of the Porter, 51 Or. 318, 95 Pae. 732, 98 United States it was said that such Pac. 1083, 102 Pac. 728. Water Rights 10 146 (3d ed.) Pt. II. CALIFORNIA - COLOEADO DOCTEINES. 121 extend to a rejection of common-law riparian fishing rights in Colo- rado ; 13 but in Idaho, not to include a rejection of the common-law riparian rights to accretion or access, 14 nor in Idaho, to a rejection of riparian right to domestic use against an appropriator not com- plying with the law in regard to making appropriations, 15 nor in Oregon (under its recent change of rule) to a rejection of the ripa- rian right for domestic use in any event. 16 The rejection of riparian rights in Colorado applies to lands acquired while Colorado was a territory, as well as those acquired after the adoption of the constitution, 17 and, in Arizona, to lands deraigned under Mexican grant as well as those deraigned under United States patent. 18 (3d ed.) 121. In the Supreme Court of the United States. While Judge Field was on the bench, the decisions of the supreme court of the United States were given on the theory that the appropriator deraigned his rights from the United States as proprietor of the public lands, and that he was protected against the riparian claims of settlers only if the appropriation was prior in time to the settle- ment, and that the Federal statutes so affirmed in order to prevent the loss of the appropriation on a later sale of the public land by the United States to the private landowner. This earlier line of the de- cisions follows close to the historical rationale of the doctrine which gave it origin as a system of disposing of rights on the public domain, and culminated in Sturr v. Beck, 19 actually enforcing the California doctrine in favor of a prior settler when private riparian land was involved. This first stage of the United States supreme court's 13 Sternberger v. Seaton etc. Co. as inferior to a right acquired by (1909) 45 Colo. 401, 102 Pac. 168. appropriation, and superior to any Cf. State v. Barker (Utah), 108 Pae. right of a stranger to or intermeddler 352. with the waters of such stream." n Hutchinson v. Watson D. Co. ie Houeh v Porter, supra. i 1909 ^ 1 ^? ' I 4 n% 133 Am ' St ' 17 Sternberger v. Seaton Co. (Colo. Rep. 125 101 Pac. 1059. 19Q9) 45 c * 4Q1 1Q2 p -^ lo Ibid., and quaere in Colorado. See Sternberger v. Seaton Co., supra; 18 Boquillas etc. Co. v. Curtis, 3 and Humphrey T. Co. v. Frank (1909) Ariz. 128, 89 Pac. 504; S. C., 213 46 Colo. 524, 105 Pac. 1093, a case of U. S. 339, 29 Sup. Ct. Rep. 493, 53 L. pollution. The headnote of the Idaho Ed. 822. But not, in Arizona, to a ease in the Pacific Reporter says: rejection of the common-law right of "A riparian owner's right to use a riparian owner not to have the the water of a stream for domestic stream backed up upon his land, and culinary purposes and watering Kroeger v. Twin Buttes etc. Co. his stock, and to have the water flow (Ariz.), 114 Pac. 553. by or through his riparian premises, 19 133 U. S. 541, 10 Sup. Ct. Rep. is such a right as the law recognizes 350, 33 L. Ed. 761. 122 Ch. 6. HISTORICAIr-1866 TO THE PRESENT. (3d ed.) 147 decisions includes Atchison v. Peterson, 20 Basey v. Gallagher, 21 Jen- nison v. Kirk, 22 Broder v. Water Co., 1 and Sturr v. Beck. 2 (3d ed.) 122. Same. But a second stage of the decisions of the supreme court of the United States has within recent years been reached, which disregards the proprietary rights of the United States as hav- ing any bearing upon the rights of an appropriator. Recent cases have all gone to that court from jurisdictions where the Colorado doctrine is in force, and the theory on which they are based is en- tirely that of the Colorado doctrine, regarding the right of appro- priation as dependent purely on local sovereign power to fix the local law without attempting to reconcile this with the decisions of the earlier or "public domain" stage. This line of decisions in- cludes United States v. Rio Grande etc. Co., 3 Gutierres v. Albuquer- que etc. Co., 4 Clark v. Nash, 5 Kansas v. Colorado, 6 and Boquillas etc. Co. v. Curtis. 7 This line of authorities is based on a determination to uphold the Colorado doctrine in such States as have adopted it, and upon which rights have there grown up of great value. They are not, however, clear on the precise ground upon which it is to be upheld. The first two 8 declare for a construction of the early Federal statutes as the basis; while the last three 9 show a de- termination to pass by those statutes, and to treat the question as one inherent in local sovereignty, regardless of 'Federal proprietor- ship. This view, strongly asserted in Kansas v. Colorado, was not actually in that case decided because the decision was rested on the insufficiency of a showing of damage in the case by the riparianists such as would warrant an injunction, even if the anti-riparian system were not sound, but was actually enforced and decided in Boquillas etc. Co. v. Curtis. At the same time, in another very recent case, decided between Kansas v. Colorado and the Boquillas 20 20 Wall. (87 U. S.) 507, 22 L. 4 188 U. S. 545, 23 Sup. Ct. Rep. Ed. 414, 1 Morr. Min. Rep. 583. 338, 47 L. Ed. 588. 21 20 Wall. (87 U. S.) 670, 22 L. 5 198 U. S. 361, 25 Sup. Ct. Rep. Ed. 452, 1 Morr. Min. Rep. 683. 676 > 4 Ann - Ca S- 1171, 49 L. Ed. 1085. 22 98 U. S. 453, 24 L. Ed. 240, 4 * 2 6 y U - 4 q 6 ' ^ Sup. Ct. Rep. Morr. Min. Rep. 504. 65 ?> "^ Ed. 96. 1 101 U. S. 274, 25 L. Ed. 790, 5 C t. Rep. 493, 53 L. Ed. 822. Morr. Min. Rep. 790. 8 United States v. Rio Grande etc. 2 133 U. S. 541, 10 Sup. Ct. Rep. Co. and Gutierres v. Albuquerque etc. 350, 33 L. Ed. 761. Co. 3 174 U. S. 690, 19 Sup. Ct. Rep. 9 Clark v. Nash, Kansas v. Colo- 770, 43 L. Ed. 1136. rado, and Boquillas etc. Co. v. Curtis. 143 (3ded.) Pt. II. CALIFORNIA - COLOEADO DOCTRINES. 123 case, it is said by Mr. Justice McKenna : 10 " The power of the gov- ernment to reserve the waters and exempt them from appropriation under the State laws is not denied and could not be." This is in- consistent with what Mr. Justice Brewer said in Kansas v. Colorado, and he accordingly dissented. 11 These decisions will be considered more at length later; for the purpose of this historical statement the following passage best shows the present attitude of the supreme court of the United States: "This court must recognize the difference of climate and soil which renders necessary these different laws in the States so situated." 12 That is, whatever may be the true theory, the water laws of each State will be upheld on the ground of expediency because of the valuable rights which have grown up under both systems. C. LATER AND RECENT STATE LEGISLATION. (3d ed.) 123. Public Service Declared Under State Control. In 1879 California adopted a new constitution. The history of the move- 10 Winters v. United States, 207 U. S. 564, 28 Sup. Ct. Rep. 208, 52 L. Ed. 340. See Burley v. United States (1910), 179 Fed. 1. 11 There should be added the case (decided since the above was written) of Los Angeles v. Los Angeles Co. (1910), 217 U. S. 217, 30 Sup. Ct. Rep. 452, 54 L. Ed. 736. The case arose in California under the pueblo right of Los Angeles, which the State court holds paramount to riparian rights. Supra, sec. 68. This decision is more particularly referred to hereafter. Infra, sees. 177, 183. 12 Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. Rep. 676, 49 L. Ed. 1085. There have been the following de- cisions in the supreme court of the United States: Atchison v. Peterson, 87 U. S. 507, 22 L. Ed. 414, 1 Morr. Min. Rep. 583 ; Basey v. Gallagher, 87 U. S. 670, 22 L. Ed. 452, 1 Morr. Min. Rep. 683; Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240, 4 Morr. Min. Rep. 504; Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790, 5 Morr. Min. Rep. 33; Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L. Ed. 761; Bybee v. Oregon etc. Co., 1S9 U. S. 663, 11 Sup. Ct. Rep. 641, 35 L. Ed. 305; Bear Lake etc. Co. v. Garland, 164 U. S. 1, 17 Sup. Ct. Rep. 7, 41 L. Ed. 327; United States v. Rio Grande etc. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, 43 L. Ed. 1136; Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. Rep. 552, 46 L. Ed. 838; Telluride etc. Co. v. Rio Grande etc. Co., 187 U. S. 569, 23 Sup. Ct. Rep. 178, 47 L. Ed. 307; Gutierres v. Al- buquerque etc. Co., 188 U. S. 545, 23 Sup. Ct. Rep. 338, 47 L. Ed. 588; Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. Rep. 676, 49 L. Ed. 1085, 4 Ann. Gas. 1171; Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. Rep. 655, 51 L. Eel. 956; Winters v. United States, 207 U. S. 564, 28 Sup. Ct. Rep. 208, 52 L. Ed. 340; Boquillas etc. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. Rep. 493, 53 L. Ed. 822; Rio Grande etc. Co. v. United States, 215 U. S. 266, 30 Sup. Ct. Rep. 97, 54 L. Ed. 97; Los Angeles v. Los Angeles Co. (1910), 217 U. S. 217, 30 Sup. Ct. Rep. 452, 54 L. Ed. 736; Rickey v. Miller (U. S., 1910), 31 Sup. Ct. Rep. 11. See Hudson etc. Co. v. Mc- Carter (1908), 209 U. S. 349, 28 Sup. Ct. Rep. 529, 52 L. Ed. 828, 14 Ann. Cas. 560. 124 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 149 ment leading up to it is contained in Bryce's American Common- wealth; from which it seems that a strong sentiment had been aroused against capital and monopoly. The leader of the move- ment, Dennis Kearney, addressed himself chiefly, in this regard, against the railway and steamship lines; but in the convention the movement was widened to include other public services, including water. At the instance of Volney Howard, of Los Angeles, article XIV was placed in the new constitution, declaring the distribution of water to the public to be a public use, and subject to the regu- lation and control of the State; and the California provision, with variations, has been copied in numerous Western constitutions or statutes. 13 (3d ed.) 124. Water Codes. In California and some of the States following the California doctrine, there has been no other recent legislation directly affecting the law of waters, just as, until 1909, California had practically no mining legislation. Legislation upon waters had been urged in the' eighties by Mr. Hall, as State En- gineer, based upon the law of appropriation, 14 but instead of adopting it, the legislature abolished his office. Later, Professor Pomeroy, in his work on Riparian Rights, urged legislation of a different kind, based more upon the law of riparian rights, but equally without result. In 1901 legislation was urged, based upon the law of appropriation, in what was known as the Works Bill, its features being those of the "Wyoming System," but this also, though it had the support of Professor Mead, 15 was unsuccessful in the legislature. A similar bill introduced in 1909 also failed of passage. 16 Up to January 1, 1911, there were no water codes of this kind in Arizona, California, Kansas,, Montana, Texas or Washington. Any modifications of the foregoing in Statutes of 1911 are noted in the next section. But in most of the other States, extensive codes have been adopted, within the last few years, based solely on the law of ap- is Infra, sec. 1264 et seq. for 1878-79; the measure was drawn 14 In' his report, part I, page 220, out in the report of 1880, and has he had said: "Indeed, the necessity been urged in every succeeding re- for and general features of the pro- port." posed Californian law for 'The Dis- 15 Bulletin 100, TL .8. Dept. of covery and Adjudication of Water- Agric. right Claims' were stated and outlined 16 Introduced by Senator Black, of in the report of the State Engineer Santa Clara, 150 (3d ed.) Pt. II. CALIFOENIA - COLOEADO DOCTRINES. 124 propriation, and chiefly for the encouragement of irrigation, though applying to all pursuits, under the influence in some degree of the United States Reclamation Service. This legislation is still going on. The features of this legislation originated partly in Colorado, but chiefly in Wyoming, where they owe much to the influence of Professor Elwood Mead, formerly of the United States Depart- ment of Agriculture, and recently appointed head of the Irriga- tion Administration of Australia. In Utah, a code was adopted by the 1903 session of the legislature 17 and repealed by the next, and a new code substituted 18 very similar and in parts identical; and again in 1907. 19 In Wyoming there is much legislation on this subject, and in 1905 a statute was passed appointing code commis- sioners to draft a new code to be presented to the next legisla- ture, 20 and a code adopted in 1907. 21 In Oregon a code was adopted in 1909 based upon the Wyoming law, in consultation with the State Engineer of Wyoming. 22 In eight of these States and Terri- tories this legislation was adopted in whole or in large part in 1905. In 1907 and 1909 this legislation was continued in numerous States, being devoted to broadening the first enactments, confined to irrigation, into a wider scope applying to all uses, as a general Water Code. More or less elaborate codification in this line, having common characteristics, will be found in Colorado, Idaho, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah and Wyoming. 23 In Arizona 24 there are stat- utes somewhat similar to the above but somewhat influenced by the civil law of acequias borrowed from Mexico. The main features of this new legislation are solely adminis- trative. The substantive law concerning the extent of right, loss of right, and similar matters, remains as under the decisions of the courts, largely the early California decisions. The new stat- utes are chiefly administrative, providing for enforcement of the rights defined by case law, and for a policing of the waters. They are an application of the theory of public ownership of natural resources. Laws enacted since 1905 all provide for the rejection of applications the approval of which would be detrimental to the public interests. New Mexico and South Dakota place this power 17 Laws Utah 1903, c. 100. 21 See statutes, infra, sec. 1449. 18 Laws Utah 1905, c. 108. 22 Oregon Stats. 1909, c. 216, p. i See statutes, infra, sec. 1447. 319. 20 Laws Wyo. 1905, p. 26. Like- 23 Statutes infra, Part VHL wise Montana, Stats. 1905, p. 184. 24 Bev. Stats. 1901, p. 1045. 124 ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 151 in the engineer, while in Oregon the engineer is to report such cases to the board of control, which is to decide thereon. The chief sponsor of this legislation says: "The growing belief in the public ownership of public utilities applies especially to water, that most essential of all utilities." 25 The essentials of all these statutes consist in an enactment of the law of appropriation as the sole law on the subject of waters, with a declaration of State or public ownership of all waters; a reorganization of the State for adminis- trative purposes as concerns waters; a census, determination and listing of all existing appropriations; a comprehensive method of making appropriations hereafter; and various provisions for polic- ing the waters. The object of the legislation is in the nature of police regulation under the police power to secure the orderly dis- tribution of water for irrigation. 1 In the act of 1866, 2 local customs, "laws" and decisions of courts are referred to, and this has been held to apply to local statutes, 3 and to the statutes of a Territory as well as those of a State. 4 The Nebraska court has said that a water code of this kind unconstitu- tional in part would be so in whole, 5 but the Idaho court held the contrary. 6 It is said that this legislation can only regulate, and cannot carry that regulation to the extent of impairing rights held by appropriators out of a policy favoring later claimants. 7 This legislation being very new, it will take time to try it out. The State Engineer of Oregon estimates four to six years for a satisfactory test. For example, the Oregon act of 1909 enacted an annual tax upon new water-power projects, which has been found to cause the abandonment of fifty-six projects out of one hundred and twelve projected ; that is, has cut power development in Oregon in half; from which experience the State Engineer has recom- mended its repeal. 8 25 Professor Elwood Mead in Bulle- U. S.) 670, 22 L. Ed. 452., 1 Morr. tin 100, U. S. Dept. Agric., p. 64. Min. Rep. 683. i Combs v. Farmers' etc. Co. -38 4 Gutierres v. Albuquerque etc. Co., Colo. 420, 88 Pac. 399. ^8 U. S. 545, 23 Sup. Ct. Rep. 338, Says Mr Lewis State Engineer of swforv. Hathaway, 61 Neb. Oregon, "The small water user, with 017 5 AT W 306 limited means, cannot afford to fight e'Bear Lake v ' Bndo-p 9 Idaho for his rights in the courts He must 7Q * ^^ jgffij,^ make his living by the application of 61 -' B . c P g ; 1Q water to his crops. If the water sup- Tlo v o Q 77 T> O/ , OK 001 ply is stolen, his'only hope of securing "%B "*% ^' justice in the courts is gone." 8 g^ of s tate - Engineer of Or e- 2 U. S. Rev. Stats., sec. 2339. gon f or 1909-10 (Third Report),, * Basey T. Gallagher, 20 Wall. (87 pages 5, 7 and 82, 84. 152 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. (3d ed.) 125. Same Legislation in 1911. In the legislation of this year the most extensive changes were in California. For the first time there now appears upon the statute books in California the declaration, borrowed from Wyoming, that waters in California are "the property of the people of the State"; and the Wyoming system of administration by a Board of Control has been enacted in California to cover water-power development (but covering such uses only). A resolution was also adopted for a constitutional amendment to create a Public Service Commission in California, with control over distribution of water to public uses; and such commissions were established in Kansas, Oregon, Washington and Nevada. Further, a Conservation Commission was created in Cali- fornia to investigate water laws and water resources, and the one already existing in Utah was given increased power over deciding what uses of streams are most in the public interest. The California statute for power projects follows the Wyoming rule that projects may be denied if the Board of Control considers them against public interest. In California there was further created a State Board of Engineering and a State Engineer, with duties, among others, of investigating water resources. Power projects are limited to twenty-five years in the California statute, and a graduated royalty or tax upon horsepower is im- posed. In Oregon the existing tax was not changed, and a new one was placed upon projects that had not been included in the law of 1909. Idaho, Oregon, and Utah passed acts restricting, in some features, the power of the officials in cancellation or rejection of permits. The irrigation district statutes were amended in most States. The bill in Colorado which evoked most interest was the Carpenter Bill, with Parrish Amendment, to repeal a preference, appearing in an earlier statute, given to irrigation by direct application of flow from a stream, over irrigation from reservoirs supplied from the same stream. At the present writing, the bill has passed both houses, and will probably be signed by the governor. The most interesting feature of this year's water legislation con- cerns interstate streams. California passed a resolution protesting against diversion into Nevada of the waters of Lake Tahoe, on the California-Nevada line and declaring the Lake to be mainly the property of California, and the Nevada legislature resolved that 126 Ch.6. HISTORICAL 1866 TO THE PEESENT. (3d ed.) 153 the diversion should be allowed, "notwithstanding the protest of the people of the State of California, whose claim to those waters we do not concede." California further enacted that waters with- in its boundaries are the property of the State, and prohibited their diversion to points outside of the State, while Oregon enacted with reference thereto that the State Engineer of Oregon may refuse permits for diversion of Oregon waters to points in another State when the latter would not permit diversion of its waters for use in Oregon. Wyoming appropriated funds to enable the attorney gen- eral of the State to take steps to protect the rights of the State and its citizens in the waters of interstate streams. References to these and other less important enactments in 1911 are given in appropriate sections hereafter, and also in the col- lection of statutes in Part VIII of this book. (3d ed.) 126. Effect of This Legislation upon Riparian Rights. In all of the Western States there has been an adoption of the com- mon law as the basis of the general legal system. 9 The only stat- ute naming 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 water codes. The Arizona constitution says: "The com- mon-law doctrine of riparian water-rights shall not obtain or be of any force or effect in this State. ' ' 10 On the other hand, the Oregon statute expressly mentions and preserves the existing rights of ripa- rian owners; 11 and likewise Washington. 12 Aside from these ex- ceptions, the common law of riparian rights is not expressly men- tioned in any of these statutes; but is indirectly rejected in toto by a provision that the right to appropriate unappropriated water shall never be denied ; 13 or a provision that the right to waters can arise by appropriation and in no other way, 14 adding a phrase common in the States rejecting riparian rights in toto, that "bene- 9 United States v. Eiq Grande Co., provision is substantially the same in 174 U. S. 690, 19 Sup. Ct. Rep. 770, the territorial statutes. 43 L. Ed. 1136. u Laws 1909, c. 216, sec. 70 (see, 10 Ariz. Const., art. XVII, sec. 1. also, sec. 1) ; Laws 1905, c. 228. Copied from Rev. Stats. 1901, sec. 12 Infra, sec. 1448. 4168 (Civ. Code). See Boquillas etc. 13 Citations supra, sec. 108. Co. v. Curtis, 213 U. S. 339, 29 Sup. 14 For example, Nev. Comp. Laws Ct. Rep. 493, 53 L. Ed. 822, affirming 1900, sec. 359; Nev. Stats. 1907, p. Same v. Same, 11 Ariz. 128, 89 Pac. 30, sec. 7; Oregon Laws 1909, c. 216, 504. This constitution has not yet sec. Ij Utah Laws 1905, c. 108, sec. been ratified by Congress; but the 34. 154 (3ded.) Pt. II. CALIFORNIA- COLORADO DOCTRINES. 126 ficial use shall be the basis, the measure and the limit of all rights to the use of water." 15 The Oregon statute of 1909 provides: "This act shall not be held to bestow upon any person, association or corporation, any riparian rights where no such rights existed prior to the time this act takes effect," 16 and existing riparian owners are, it appears, required to have their rights established like appropriators, and are to be allowed only such water as is in bene- ficial use by them at the date of adjudication. 17 In Idaho it is de- clared that the right to appropriate unappropriated water shall never be denied, and that priority of appropriation gives the better right in appropriation of water, 18 and that "all rights to divert and use the waters of this State for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this act." 19 Simi- lar provisions exjst in most States. At the same time they fre- quently contain a provision saving all existing rights. 20 Most of the States adopting this legislation hostile to the 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- ing the rights of riparian proprietors. 21 In the last three, these statutes being only adopted recently, there has been no chance for testing their effect upon the existing rights of riparian proprietors ; but in Nebraska 22 the matter gave rise to much litigation, and the court held 23 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, cannot take away the rights of exist- ing riparian owners, as it would be a taking of property without 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 15 Citations infra, sec. 478. larging, abridging or restricting such 16 Oregon Laws 1909, c. 216, sec. rights." Sec, likewise, Nevada Stats. 70, subcL 8. 1909, p. 31; N. M. Laws 1907, p. 17 Ibid, sees. 13, 70, et alia. 71, sec. 59. is Idaho Const., art. 15, sec. 3. 21 Supra, sec. 117. 19 Stats. 1903, p. 223, sec. 41. 22 The legislation in Nebraska was 20 Nevada Stats. 1907, p. 30, see. 2, substantially an adoption of the Wy- saying, "All existing rights to the use oming laws. Farmers' Irr. Dist. v. of water, whether acquired by appro- Frank, 72 Neb. 136, 100 N. W. 286. priation or otherwise, shall be re- 23 Crawford Co. v. Hathaway, 67 spected and preserved, and nothing Neb. 325, 108 Am. St. Rep. 647, 93 in this act shall be construed as en- N. W. 781, 60 L. B. A. 889. 126 Ch. 6. HISTOETCAL 1866 TO THE PRESENT. (3d ed.) 155 natural channel is property, which 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 injury 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 reason- able 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 by riparian proprietors. ' ' A recent California case very emphatically denies power in the legislature to restrict the right of existing riparian owners, 24 and the new California water-power statute above mentioned says that it "shall not impair or affect any rights to water or the use of water which shall have become vested prior to the making of the applica- tion above provided for." 25 The Nebraska decisions upheld the statute as introducing ap- propriation, and abrogating riparian rights accruing thenceforth (that is, upon public land that may be patented thereafter), and considered appropriation as resting solely on these statutes, holding that before the statutes appropriation did not exist at all. 26 In so far as Nebraska upholds the abrogation of the common law by State statute for future patents, it is contrary to Lux v. Hag- gin. The California court placed its decision to a great extent on the ground that abrogating the rule of riparian rights would in- terfere with the primary disposal of the Federal lands, an inter- ference not depending upon the date of a statute, and equally an 24 Miller v. Maclera Co., 155 Cal. the state, as described in section 1, 59, 99 Pac. 502, 22 L. R. A., N. S., are thereby declared to be the prop- 391. erty of the public, and may be ac- See, also, a quaere regarding rights quired by appropriation for irriga- if once vested, in Boquillas etc. Co. tion, cannot operate on the rights of v. Curtis, 11 Ariz. 128, 89 Pac. 504, riparian owners, existing when the 213 U. S. 339, 29 Sup. Ct. Rep. 493, law was passed, but was intended to 53 L. Ed. 822. Quaere, also, what operate only on such interest as the might be the bearing, if any, of the state had by reason of its ownership doctrine of Muhlker v. New York etc. of land bordering on natural streams. Co., 197 U. S. 544. 25 Sup. Ct. Rep. McGee Irr. Ditch Co. v. Hudson 522, 49 L. Ed. 872? (Tex. Sup.), 22 S. W. 967. In Texas it was held that General 25 Stats. 1911, c. 406, sec. 14. See Laws of 1889, page 100, section 2, infra, see. 1193. providing that the unappropriated 26 Meng v. Coffey, 67 Neb. 500, waters of every river or natural ]08 Am. St. Rep. 697, 60 L. R. A. stream within the arid portions of 910, 93 N. W. 715. 156 (3d ed.) Pt. EL CALIFORNIA - COLOEADO DOCTEINES. 127 interference if only abrogating for future patented land. To this extent departing from Lux v. Haggin, the Nebraska court said: 1 "That it was competent for the legislature to abrogate the rule of the common law as to riparian ownership in waters as to all rights which might have been acquired in the future, and substitute a system of laws providing for the appropriation and application of all the unappropriated waters of the State to the beneficial uses as therein contemplated, there exists, it would seem, no reasonable doubt." 2 As the decision in Lux v. Haggin was rested largely on constitutional grounds, a strict adherence to the California doctrine does not recognize any power in the legislature to abrogate ripa- rian rights present or future. As to present rights, it would take them away without due process of law (that is clear ), 2a and as to future patents, Lux v. Haggin held that it would interfere with the primary disposal of the public lands (which, however, in view of Kansas v. Colorado, 3 while not disproved, has been cast in doubt). The question under the new Oregon act is considerably affected by the recent decision in Hough v. Porter elsewhere considered. 4 (3d ed.) 127. Irrigation Districts Wright Act. The California leg- islature in 1872 passed an act 5 providing that the owners of land susceptible of one mode of irrigation may combine for the common purpose, contributing the water-rights owned by each or acquiring new ones in the usual ways. Similar legislation already existed for the formation of "Reclamation Districts" to reclaim swamp lands. 6 In 1887 7 the statute well known as the "Wright Act" was passed for the same purpose, an elaborate statute providing for the formation of irrigation districts. It was held in violation of the constitution of the United States by Judge Ross in the southern 1 Crawford Co. v. Hathaway, 67 vested property rights without due Neb. 325, 108 Am. St. Rep. 647, 93 compensation, contrary to constitu- N. W. 781, 60 L. R. A. 889, supra. tional provisions in that regard." 2 The Nebraska court further held Citing Clark v. Cambridge Irr. Co., in the same case: "In the irrigation supra. act of 1889 the legislature sought to 2a See infra sec 1193 classify the streams in this State, 3 2Q6 ^ s ' 46 ' 27 s Ct ^ and restrict riparian rights to those 65g g jj -^ ^ owning lands bordering on streams ' not exceeding a certain width; but 4 I n f ra > sec - 129. this attempted restriction proved abor- 5 Stats. 1871-72, pp. 945-948. tive as an unwarranted act calculated 6 Infra, sec. 350. to dejprive riparian proprietors of 7 Act of March 7, 1887. 128 Ch. 6. HISTORICAL 1866 TO THE PEESENT. (3d ed.) 157 district of California, 8 but on appeal to the supreme court of the United States was upheld, 9 reversing Judge Ross. It has been copied in many other States and it's constitutionality since always upheld. The act was repealed in California and a new act passed in 1897, which has been since amended. Statutes for the formation of irrigation districts based on the Wright Act of California exist in California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, Oregon, Texas, Utah, Washington and Wyoming. 10 The law of irrigation districts is further considered elsewhere in this book. 11 D. LATER AND RECENT FEDERAL LEGISLATION. (3d ed.) 128. The Desert Land Act. Since the statutes of 1866 and 1870, Congress has only indirectly touched the subject of private rights in waters. In 1877, by the Desert Land Act, 12 the right to appropriate such an amount of water as might be necessarily used for the purpose of irrigation and reclamation of desert land, part of the public domain, was granted, and it was further declared, "Provided, however, that the right to the use of water by the per- son so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior ap- propriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irri- gation and reclamation ; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropria- tion and use of the public for irrigation, mining and manufacturing purposes, subject to existing rights." 13 8 Bradley v. Fallbrook Irr. Dist., C. March 28 ; 1908, 35 Stat. 52. This 68 Fed. 948. statute applied to the entire West ex- 9 Fallbrook Irr. Dist. v. Bradley, cept Colorado, which was included in 164 U. S. 112, 17 Sup. Ct. Rep. 56, 189]. 1 Supp. Rev. Stats. 941, 942. 41 L. Ed. 369. 13 The act of 1877 is considered 10 See statutes collected infra, c. 58, to some extent in the following cases : sec. 1356 et seq. Williams v. Altnow, 51 Or. 275, 95 11 Infra, sec. 1356 et seq. Pac. 200, 97 Pac. 539; Farm Invest- 12 Act of Congress March 3, 1877, ment Co. v. Carpenter, 9 Wyo. 110, 19 Stats, at Large, 377, e. 107, U. S. 87 Am. St. Rep. 918, 61 Pac. 258, Comp. Stats. 1901, p. 1549. See, also, 50 L. R. A. 747; United States v. A. C. June 27, 1906, 34 Stat. 520; Conrad Inv. Co. (C. C.), 156 Fed. A. C. March 26, 1908, 35 Stat. 48; A. 123, 128; United States v. Rio Grande 158 (3ded.) Ft. II. CALIFOENIA-COLOEADODOCTKINES. 8 129 Whatever may be the beneficial result of construing these pro- visos one way rather than another, until the recent Oregon decision f below considered they were regarded as but declaratory of the act pa ' 1866 and inserted in the Desert Land Act only out of abundant tVNon as a repetition of the former statute; that is, repeating ine po. ^ < nether of them having ap, : . cation to ^^ diyerted subsequent to the patenting of the riparian ^ over wMch they flowed> but only to waters flowing over unoccu t .^ bHc land at the time of the diversion. 14 (3d ed.) 129. Same -Hough v. Porter.-But a Vc recent Oregon decision has established for Oregon a new systeL wa ^er law upon the basis of this act. In Hough v. Porter 15 it ." wag ^eid ^hat with the exceptions below noted, the common law of rip , ar j an rights was abrogated by Congress in this act as to all public I i an( j an( j that thereafter the passing of land into private title does i , {. p re . vent the diversion of water therefrom against a landowner wh o ^ as not himself put it to use when diverted from his land. The c. o reaffirms that both this act and the act of 1866 enact for wa. while on public land the policy of "free development," or, as is here put, a dedication of the waters to the public while on publ. land; but it further holds that- the Desert Land Act made thil dedication irrevocable so that it remains attached to the waters Irr. Co., 174 U. S. 690, 19 Sup. Ct. Eep. 770, 43 L. Ed. 1136; Gutierres v. Albuquerque Land Co., 188 U. S. 545, 23 Sup. Ct. Eep. 338, 47 L. Ed. 588; Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. Eep. 655, 51 L. Ed. 956; State ex rel. Liberty Lake Ice Co. v. Superior Court, Spokane County, 47 Wash. 310, 91 Pac. 968; Hough v. Porter, 51 Or. 318, 95 Pae. 732, 98 Pac. 1083, 102 Pae. 728; Winters v. United States, 143 Fed. 740, 74 C. C. A. 666; S. C., 207 U. S. 564, 28 Sup. Ct. Eep. 208, 52 L. Ed. 340. Eegarding land entries under this act, questions of land law rather than water law are involved, and the act is here considered only with reference to its bearing upon general water questions, and not with reference to acquisition of land titles under the act. Circulars of the General Land Office may be obtained upon applica- tion, dealing with the land questions, such as the irrigable character of the land, the amount of irrigation for which proof is required, and similar matters. Eegulations are also printed in 39 Land Dee. 253. See, also, for example, 37 Land Dec. 317, and 38 Land Dec. 157 (stock in irrigation company as expenditure under the act); 38 Land Dec. 420; 38 Land Dec. 438; 39 Land Dec. 285. 14 Winters v. United States, 143 Fed. 740, 74 C. C. A. 666. 15 (1909) 51 Or. 318, 95 Pac. 732; 98 Pac. 1083, 102 Pae. 728, rehear- ing denied, 102 Pac. 731. 129 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 159 (even though as yet unappropriated) when the lands over which they flow are patented. Consequently, the doctrine of riparian rights (with the exception below) was held inapplicable to any of the many claimants in the case, because their riparian patents, although in numerous instances issued prior to the appropriation of water by others, had issued subsequent to the passage of the act of 1877. 15a The exceptions recognized in the decision are: (1) lands patented before 1877; (2) waters in actual use by the riparian owner; and (3) the common-law right to a perpetual (though unused) flow of such quantity as could in the future be used for domestic use and stock-raising. The reason for the first and second is obvious ; the reason for the third lay partly in an Oregon statute which was held to prevent going further, 16 but chiefly the use of the words "irrigation, mining and manufacturing" in the Desert Land Act, which words were held to restrict the abrogation to water claimed by a riparian owner for those purposes. Indeed, as to domestic use, the preservation of the common-law riparian right for that purpose is strongly upheld upon principle. 17 Upon principle the court thus concludes, as a matter of policy, that the common law of riparian rights is better adapted to domestic use than is the law of appropriation, while the latter is better for irrigation, mining i5a It may be pertinent to note that there may be some connection between the proviso in the Desert Land Act and a California resolution of the same year (Laws 1877, p. 1070), call- ing upon Congress to abrogate ripa- rian rights and to declare as to waters "that the same be granted and dedi- cated to the States and Territories where the same are situated." 16 Sec. 5000, B. & C. Comp. See supra, sec. 119, "Landowner" statute. 17 In this regard the court said (per Mr. Justice King) : "The lan- guage used in this act [Desert Land Act of 1877] was clearly intended to change the rule respecting the right of riparians to the use of water for irrigation, mining and power pur- poses; but as in the last case cited, it has its limits. It does not go so far as to affect the rights originally giving rise to the doctrine of riparian rights; that is, for domestic use, in- cluding the watering of domestic ani- mals and such stock as may be essen- tial to the sustenance of the owners of lands adjacent to the streams or other bodies of water. [Nor, it is held, does it allow interference with navigation.] .... Presumably the best possible results for all concerned were intended, which it is clear could best be obtained by permitting the settle.r to retain the quantity of water essen- tial to the sustenance of his family and to other natural wants incident thereto, but, if he does not see proper to apply it to any of the uses specified in the act, then to permit the first home-builder on other lands to make such use of it as will bring into cul- tivation the lands not adjacent to the streams, thereby protecting the set- tlers upon both classes of lands, and at the same time not only encourage home building but enable the govern- ment to dispose of more of its lands, and to enhance its revenues propor- tionately." Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. 160 (3ded.) Pt. H. CALIFORNIA- COLORADO DOCTRINES. 130 and manufacturing, and that the act of 1877 is in accord with this view of the proper policy. But with these exceptions, there are, under this decision, no ripa- rian rights to unused water in Oregon for lands patented since 1877. 18 (3d ed.) 130. Same New Oregon Doctrine Based on the Desert Land Act. As already said, this view is as yet confined to Ore- gon, for until this decision the Desert Land Act had not really entered the discussion of water law in the decisions or text-books. Into California law, especially, it has never entered; the writer recalls no case in which, it was even cited, and feels that it can be confidently said that no California case has made it the basis of actual decision regarding water-rights. The California law has re- garded the act of 1866 as the sole "charter" of Western water law, and all subsequent acts of Congress as subordinate thereto and merely declaratory thereof. The Oregon court in Hough v. Porter also says: "So far as we are able to determine, the question, as here presented, has not heretofore been squarely before any of the courts," and upon petition for rehearing 19 occurs the expres- sion, "a doctrine hitherto unknown." That, however, if the policy taken be good, is rather a merit of the decision, since -it was made with full knowledge of that fact, and only after a learned exam- ination of the previous law. The decision was also preceded by intimations to the same effect in other recent Oregon cases, 20 and since then the supreme court of the United States has declared it to rest on plausible grounds. 21 It is an entirely new phase of the law that is thus presented, and only time can show what effect this decision will have, though 18 In an extended opinion, the court, only the riparian rights of land pat- through Mr. Justice King, said : "Con- ents issued before 1877, and before strued, then, with the act of 1866 and any appropriation had been made of other provisions of the act of 1877, water thereon. we are of the opinion that all lands , r-i /-> nio -ma -n settled upon after the date of the lat- M 19 * l <* 318 > 102 Pac ' 729 > P etl " ter act were accepted with the implied t101 lemd - understanding that, except as herein- 20 Davis v. Chamberlain, 51 Or. 304, after stated, the first to appropriate 98 Pac. 154; Williams v. Altnow. 51 and use the water for the purposes Or. 275, 95 Pac. 200, 97 Pac. 539; specified in the act should have the Hough v. Porter, 51 Or. 318, 95 Pac. superior right thereto"; and that ap- 732. propriation becomes practically the 21 Boquillas etc. Co. v. Curtis, 213 ole law of use for irrigation, mining U. S. 339, 29 Sup. Ct Bep. 493, 53 L. jr manufacturing in Oregon excepting Ed. 822. 131 Ch. 6. HISTORICAL 1866 TO THE PRESENT. (3d ed.) 161 its importance seems to indicate much discussion of it in and out of Oregon. 22 The proviso in the Desert Land Act (however it be construed) applies to the remaining public land in all States, California included. (3d ed.) 131. Federal Right of Way and Reservoir Site Acts. In 1888, an appropriation bill provided for an examination of feasible plans for reservoirs and irrigation projects, irrigable lands, etc., to be withdrawn from entry (similar to the National Irrigation Law of June 17, 1902 ). 23 In 1890 the reservation of lands, excepting for reservoir sites, was repealed. 24 In the same year (1890) patents for land were made subject to (reserving) rights of way for ditchea and canals, west of one hundredth meridian "constructed by the authority of the United States." 25 This is the only act prior to the National Irrigation Act which applies to Federal ditch build- ing, that not being covered by the act of 1866, Revised Statutes, 2339, 2340. 1 All private land since patented is subject to gov- ernment ditch building. 2 In 1891 right of way over public lands and government reser- vations was granted for reservoirs, canals and ditches upon filing articles of incorporation, maps and statements in the land office, 3 and the act has been since supplemented, especially in 1901 and 1905 and 1911. The act of March 3, 1891, was intended to ba cumulative to the act of 1866, which required no filings. The con- struction of these acts is being extended and their scope is being enlarged to cover a rapidly developing system of Federal law. In 1911 a new act allows power rights of way and reservoir sites to be granted for fifty years. Further comment is given later here- in. 4 22 A recent Washington case men- < See infra, sees. 203, 208, 211, 430 tions the matter and leaves it open. et seq. Spokane Co. v. Arthur Jones Co. The following is an enumeration of (1909), 53 Wash. 37, 101 Pac. 515. the Federal right of way acts: Rev. 23 1 Supp. Rev. Stats. 698. Stats. 2339, 2340; A. C. Aug. 30, 24 Id., pp. 791, 792. 1890, 26 Stat. 391; A. C. March 3, 25 Ibid., p. 792; 26 Stats, at Large, 1891, 26 Stat. 1101; A. C. Jan. 21, 391. 1895, 28 Stat. 635; A. C. Jan. 13, 1 Green v. Wilhite, 160 Fed. 755; 1897, 29 Stats. 484; A. C. May 11, Same v. Same, 14 Idaho, 238, 93 Pac. 1898, 30 Stat. 404; A. C. Feb. 15, 971. 1901, 31 Stat. 790; A. C. Feb. 1, 1905, 2 Ibid. 33 Stat. 628; A. C. March 4, 1911, 3 26 Stats. 1095; 1 Supp. Rev. being part of the appropriation act Stats. 946. for the Department of Agriculture. Water Rights 11 162 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTEINES. 132,133 The purport of congressional action has been almost entirely (until the recent national conservation movement) to facilitate the development of the public domain under the local law of each State ; and usually provisos were placed in the acts that they should not interfere with State control over waters. A collection of these provisos is made in a later chapter. 5 (3d ed.) 132. Carey Act. To aid the States in the reclamation, set- tlement, and cultivation of the arid land, an act of Congress, 6 commonly called the Carey Act, granted to each State not exceed- ing one million acres of public lands upon condition that the State should cause to be irrigated, reclaimed, occupied, and cultivated by actual settlers twenty acres of each one hundred and sixty acre tract within ten years after the passage of the act. The act has been since amended in important points. A separate chapter here- after is devoted to this act. 7 (3d ed.) 133. National Irrigation Act. The National Irrigation Act (passed in the year 1902) 8 does not directly affect the law of waters. It aims at the building of irrigation works by national financial and engineering aid under existing State taws concerning waters. The essence of the National Irrigation Act is that the United States as landowner provides for certain engineering pro- jects upon its lands, to be carried out in conformity with State law. Indirectly, it has had much influence, in that the water codes of most of the States and Territories above mentioned were adopted under the influence of the Reclamation Service for the purpose of forwarding the work of the Federal government. President Roosevelt, in an annual message, 9 among other things, said: "The distribution of the water, the division of the streams among irrigators, should be left to the settlers themselves in con- formity with State laws and without interference with those laws or with vested rights. ' ' In another annual message 10 he stated : 5 Infra, sec. 176, and sec. 1429. 9 To the Fifty-seventh Congress, 6 Section 4 of the Civil Appropria- 1st Session, Cong. Rec v vol. 35, pp. tion Act of the fiscal year ending 85, 86. June 30, 1895, dated August 4, 1894 Of December 6, 1904, to the (28 Stat. 422). 58th Congress, 3d Session, found in 7 Infra, sec. 1380 et seq. volume 39 of the Congressional Ree- * Given in full in Part VIII. ord, page 14. 133 Ch. 6. HISTOEICAL 1866 TO THE PRESENT. (3d ed.) 163 "The reclamation act has been found to be remarkably complete and effective, and so broad in its provisions that a wide range of undertakings has been possible under it The act should be extended to include the State of Texas." The act was so extended by Congress in 1906. In 1910 an issuance of bonds for thirty mil- lion dollars was authorized in aid of the work. 11 It has been said: ''At the time the act [National Irrigation Act] was passed, the government was the proprietor of boundless tracts of arid lands, practically worthless in their natural condition. The smaller, more accessible, streams had been largely appropriated for the irrigation of private lands. Private capital had not, to any considerable extent, looked with approval upon the usually specu- lative and often perilous enterprise of lifting from the deep can- yons, in which they not infrequently flow, the waters of the larger streams, for the irrigation of great bodies of land, as yet either wholly unoccupied, or at most but sparsely settled; and as a rule such lands would not be purchased or entered without some assur- ance of water for their future irrigation. Contemplating these conditions, Congress passed this act, primarily for the reclamation of these public lands. The government, as a proprietor, was di- rectly interested in a pecuniary way in improving and rendering marketable that for which, in its natural condition, there was neither use nor demand. ' ' 12 The act was not framed as a basis of national governmental functions, but contemplates in section 6, that when the lands are settled up (under certain conditions), the works and their control shall pass to the settlers themselves, and the United States shall withdraw. 13 11 Chapter 407, 61st Congress, 2d ent upon them. It is probable, he Session. says, that by complete storage of all 12 United States v. Burley (1909), the flood waters, by pumping water 172 Fed. 615, affirmed in Burley v. from underground, and by the most United States, 179 Fed. 1. thorough application of water to the 13 The possibilities of this great soil, upward of fifty or sixty million governmental investment in irrigation acres may ultimately be reclaimed, and works are remarkable. It has been if that is done within the next genera- said by the director of the Reclamation tion or century, it will probably result Service, speaking generally of irriga- in a population of one person to two tion aside from the act as well as under acres irrigated ; or one person to one it, that up to the present time, as acre irrigated, or, roughly, fifty mill- shown by the census investigations, ions of people may be supported in ad- there have been irrigated upward of dition to the number now within the ten million acres within the arid re- arid region. F. H. Newell in his testi- gion, and a population of approxi- mony in Kansas v. Colorado, 206 U. S. mately three million persons is depend- 46, 27 Sup. Ct. Rep. 655, 51 L. Ed. 956. 164 (3ded.) Pt. II. CALIFORNIA -COLOR ADO DOCTRINES. 134,135 The subject of national irrigation is further considered in a later chapter. 14 (3d ed.) 134. Water Users' Associations. The National Irrigation Act provides that the persons receiving water from the government systems shall organize into associations, in which associations title to the waterworks used shall vest in the time and manner pre- scribed by the act. Preliminary associations, called "water users' associations," are now being organized. Owners must agree to turn over to the management of the association any water-rights they may already have, to be administered in connection with the additional water supply to be furnished from the government works. Some States have passed statutes for the organization of such associations as corporations. The articles of incorporation of the Salt River Valley Water Users' Association in Arizona were originally used as a guide to the form of drawing the articles. The circulars and forms furnished by the Reclamation Service and the law of each State must be referred to. A later chapter is devoted to this matter. 15 (3d ed.) 135. Other Recent Federal Legislation. A recent act of Congress represents the first attempt on the part of Congress to directly affect the law of waters in any State (excepting the Oregon construction of the Desert Land Act), since the act of 1866. Con- gress, in a proviso in one act, 16 expressly reserves out of patents, and denies to patentees, any riparian rights on lands granted in the Black Hills Forest Reserve. The California legislature, after the decision of Van Sickle v. Haines, 17 had, many years ago, peti- tioned Congress to adopt such a course regarding the public domain generally, 18 for, according to California law as it has hitherto been, that is a matter which rests with Congress, as concerns waters on the public domain yet undisposed of, and not with the State. An act of first importance in its bearing upon the future of the "Western law of waters is the Withdrawal Act passed by Congress in June, 1910, giving the President power to withdraw public i* Infra, cc. 60-63. 17 Supra, sees. 87, 88. 15 Infra, cc. 62, 63. 18 Cal. Stats. 1877, p. 1070. 16 A. C., Act June 11, 1906, 34 Stat. 234. 136 Ch. 6. . HISTORICAL 1866 TO THE PRESENT. (3d ed.) 165 lands at will. Under it large bodies of land have been withdrawn along streams, withholding access to them, as is also true of lands withdrawn by forest reservation; amounting in all to-day to two hundred million acres of withdrawn land. By withdrawing the right of access to streams, the State law is thus being affected by a body of Federal law based upon an extension of the Federal Right of Way Acts. 19 (3d ed.) 136. Recent Revival of Discussion of Federal Policy. The pioneer policy of "free development under local law" stood for half a century, and the act of 1866 enacting it remained the "charter" of Western water law. In fact, so firmly did the law of appropriation become regarded as the fixed Federal policy re- garding waters on public lands, that numerous States passed that statute by, and came to regard it as inherent law independent of Federal legislation. A change of Federal policy is now in progress. Forest reserves were created, beginning with the year 1891, and now cover (I was 1 informed by Mr. Graves, the Chief Forester, estimating roughly) all timber land in the public domain excepting about five per cent, and the policy of withdrawing other public lands also received strong support, resulting in the withdrawal bill above mentioned. In the extension of the reserved policy the effect upon existing water law was indirect, for the Forest Service disclaims jurisdic- tion over waters directly, saying water control rests with the States. But by control over rights of way (that is, over access to the streams) Federal control over water projects is advancing rapidly (as more particularly considered in a later chapter), although not without opposition from the States. 20 19 Infra, sec. 430 et seq. constitution of the United States." 20 Infra, e. 19. The legislature of The suit of Light v. United States Colorado in 1909 authorized the at- was brought to the supreme court of torney general to "investigate acts of the United States to test the validity the Federal government in regard to of the Federal grazing laws in Colo- public lands in the State of Colorado, rado. (It was decided May 1, 1911, and in regard to the waters of the in favor of the Federal and against State; and to institute such suits as he the State power.) In April, 1910, the may deem necessary in the name of the Colorado Conservation Commission State to determine whether or not the passed a resolution: "Resolved, That Federal government is encroaching as the waters of this State are the upon or usurping the rights and powers property of the State, the power A grant con ferred by act Fed. 742, 9 Saw. 441. The act oper- of Congress is the highest source of ated as a grant. Union Mm. Co. v. title known to our j| ws Ya]e on * ems Fed. Cas. No. 14,3/2 2 Saw. Mining Claims and Water Rights, p. 176, 8 Morr. Mm. Rep. 90; Farley v. 339 Spring Valley Co., 58 Gal. 142, (But gee, also, infra, sec. 285, a freehold see Rasmussen v. Blust (Neb., 1909), estate 85 Neb. 198, 133 Am. St. Rep. 650. 122 N. W. 862, an opinion written without Some approach to it is provided examination of the history of the sub- regarding rights of way and reservoir ject; for it is more a matter of his- sites. A. C., March 31, 1891. See tory than one to be reasoned out fresh infra, sec. 434. to-day.) 7 Supra, sees. 96-98. 180 (3ded.) Pt. II. CALIFORNIA -COLORADO DOCTRINES. 156 United States said the act of 1866 is an "unequivocal grant," 8 and the supreme court of Montana recently said of it that "Such acknowledgment from, so supreme authority amounts to a grant." 9 The grant is in the act itself, the highest kind of patent. Further, the United States, as grantor, had power to impose con- ditions on the grant to the appropriator, and did so by recog- nizing the conditions imposed by the early customs of miners in California, especially the condition of beneficial use. An appropriation of water is, then, under the California doc- trine, a conditional grant on public land from the United States as grantor to the appropriator as grantee, and hence, because founded in grant, the limits of an appropriation must lie within the limits, whatever they may be, beyond which the United States had nothing to dispose of, never having owned, or having parted with. The system of appropriation could have effect only where the United States as landowner had power to permit it by grant. This must be insisted on because it is a fundamental principle to be carried through the subject. The conclusion to be drawn from this matter is that under the California doctrine an appropriator receives his rights from the owner of the public lands as land- owner, not as lawmaker, and that this is usually the United States and not the State. The legislative power of the State extends to governing procedure in its courts, 10 and to matters within the police power such as the regulation of distribution to public uses, but is subject to the constitutional limitations against infringing on the primary disposal power of Congress, or interfering with the guar- anty of vested rights. 11 (3d ed.) 156. Riparian Rights a Deduction from the Federal Title. It is likewise as a deduction from the proprietary status of the United States that the California doctrine upholds the existence of riparian rights between private individuals. Accepting the Federal title to the waters while the land is public, then, when the 8 Broder v. W. Co., 101 U. S. 274. taxation, or other .than given to the 9 Cottonwood D. Co. v. Thorn United States expressly by the con- (1909), 39 Mont. 115, 101 Pac. 825, stitution. "The powers not delegated 104 Pac. 281. to the United States by the Constitu- 10 Lux v. Haggin, 69 Cal. 255, at tion .... are reserved to the States 377, 10 Pac. 674. respectively, or to the people." Amdt. 11 The exception of matters within X. See infra, sees. 1262 et seq., 1323 the police power is an exception of all et seq., public service. political sovereign power other than 156 Ch.7. UNITED STATES IN CALIFORNIA. (3d ed.) 181 riparian land passed into private title before a diversion, all there- tofore unappropriated water went with the Federal patent, equally as it was part of the government title before the patent. No other rule could stand with the opinion of Judge Field in Moore v. Smaw, 12 where, in 1861, long before Lux v. Haggin, he laid down the law (which, as to mines, excepting known lodes or existing valid locations, has since then been everywhere fundamental) : "Such being the case, the question arises as to what passed by the patents to the Fernandez and to Fremont, and to this question there can be but one answer: all the interest of the United States, what- ever it may have been, in everything connected with the soil, in everything forming any portion of its bed or fixed to its surface, in everything which is embraced within the signification of the term land; and that term, says Blackstone, 'includes not only the face of the earth, but everything under it or over it. And, there- fore,' he continues, 'if a man grants all his lands, he grants thereby all his mines of metal, and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. ' 13 Such is the view universally entertained by the legal profession as to the effect of a patent from the general government." 14 While the California doctrine is usually considered to have its chief exposition in the unfortunately lengthy opinion in Lux v. Haggin, it is pretty much contained in this terse passage by Judge Field in Moore v. Smaw. As subsequently laid down in Lux v. Haggin, the law is that if waters are actually appropriated prio to a Federal grant of land, they are granted to the appropriator by the United States, and are reserved by the United States out of the land grant, but otherwise the right to the waters passes as riparian right with the land grant. "A grant of public land of the United States carries with it the common-law rights to an innavigable stream thereon, unless the waters are expressly or impliedly reserved by the terms of the patent, or of the statute granting the land, or unless they are reserved by the congressional legislation authorizing the patent or other muniment of title. ' ' 13 12 17 Cal. 200, at 224, 79 Am. Dec. material in this connection. Strictly 123, 12 Morr. Min. Rep. 418. speaking, it is the right of flow and is Citing Book II, 19. use, and not the water itself, which !* The distinction between the passes by the patent, but that is im- corpus of water, and its right of flow material here. and use or usufruct, elsewhere eon- i Lux v. Haggin, 69 Cal. 255, 10 sidered (supra, Part I), is wholly im- Pac. 674. 182 (3ded.) Pt. H. CALIFORNIA - COLORADO DOCTRINES. 156 In a case showing much study of the question it is said, com- menting on the law of Montana: "In that State the doctrine more generally known, perhaps, as the 'California doctrine' prevails. Stated briefly, that doctrine is that while a stream is situated on the public lands of the United States a person may, under the customs and laws of the State and the legislation of Congress, acquire by prior appropriation the right to use the waters thereof for mining, agricultural, and other beneficial purposes, and to con- struct and maintain ditches and reservoirs over and upon the public land; such right being good against all other private per- sons, and by statute good as against the United States and its subsequent grantees ; but that, when a grantee of the United States obtains title to a tract of the public land bordering on a stream, the waters of which have not been hitherto appropriated, his patent is not subject to any possible appropriation subsequently made by another party without his consent. ' ' 16 The term ' ' appropriation of water ' ' thus means, in California and the States following in historical doctrine, such a title (and only such) as, because acquired as a grant from the United States on public land under the Federal policy of free rights in the public domain, is valid against a riparian owner where (and only where) the riparian patent issued subsequent to the appropriation. If the land patent issued first, its riparian rights prevail over the appro- priation. (To determine which was acquired first, the appropria- tion relates back to the beginning of work, 16 * while the patent re- lates back to the date of settlement. 161 *) The waters pass with the land less because such is the common law, than because they were assumed to belong to the United States before the patent, and the patent carried everything that had belonged to the United States. This feature of the California doctrine is variously ex- pressed as being that the doctrine of appropriation of water applies only to waters on public land, or that appropriation is not valid against prior settlers or landowners, or that no appropriation can be made of waters on private land; or that nonriparian owners (aside from contract, prescription or condemnation) have no rights in streams except such as were acquired while the riparian lands were public all of which forms express the same idea. l Willey v. Decker, 11 Wyo. 496, I6a Infra, sec. 393 et seq. 100 Am. St. Rep. 939, 73 Pae. 210. I6b Infra, see. 261 et seq. 157 Ch. 7. UNITED STATES IN CALIFORNIA. (3d ed.) 183 (3d ed.) 157. The Power of Congress in the Future. Under this historical theory there would seem to be a field for Federal legis- lation as to the yet undisposed of water upon public lands, pro- vided it repeals or modifies the guaranty of appropriation of such waters (under local rules) contained in the act of 1866. It is true that for numerous generations the United States adopted the policy of holding the public lands and their incidents as a trustee only, the trusteeship being to pass the lands and their incidents as rapidly as it could into private use and owner- ship, and allow the new States and their citizens to acquire them for their growth and prosperity. But, as the historical chapters have shown, that was a matter of tacit policy or statesmanship and not of actual law. When, for the first time, Congress, by the act of 1866, authorized State legislation for the disposal of waters on public lands, such legislation was considered subordinate to the will of Congress, and Congress may, under this theory, it would seem (subject to protection of rights already vested under the State legislation w r hich Congress authorized), repeal this permis- sion or enact rules of disposal of its own; just as in the min- ing law State legislation over mining titles is supplementary and subordinate to any action taken by Congress ; 17 and just, as with regard to the acquisition of rights of way over public lands ; 18 and as is acknowledged respecting title to the public lands gen- erally. 19 It would be within the power of Congress to abrogate riparian rights, under this theory, as to the yet undisposed, of waters on 17 "In the act of 1872 Congress which it would have within a Terri- authorized the various States in which tory, we do not think the admission was situated public mineral domain of of a Territory as a State deprives it the United States to legislate in re- of the power of legislating for the gard to mining. Such legislation is protection of the public lands, though necessarily only supplemental to the it may thereby involve the exercise of Federal legislation," etc. Costigan on what is ordinarily known as the police Mining Law, p. 21. power, so long as such power is di- 18 Infra, sec. 430 et seq. rected solely to its own protection. 19 "The general government doubt- A different rule would place the pub- less has a power over its own property lie domain of the . United States analogous to the police power of the completely at the mercy of State legis- several States, and the extent to which lation." Camfield v. United States it may go in the exercise of such (1896), 167 IT. S. 518, at 525, 526, 17 power is measured by the exigencies Sup. Ct. Rep. 864, 42 L. Ed. 260. See, of the particular case While also, Light v. United States (May 1, we do not undertake to say that Con- J911), U. S. , and Grimaud v. gress has the unlimited power to legis- United States (May 1, 1911), late against nuisances within a State, U. S. . 184 (3d ed.) Pt. II. CALIFORNIA- COLORADO DOCTRINES. 157 public lands, by providing that land patents shall not hereafter carry any water-rights. In California 20 the legislature at one time passed a joint resolution calling upon Congress, as to all waters on the public domain, to reserve all riparian rights out of land patents, and "that the same be granted and dedicated to the States and Ter- ritories where the same are situated," etc. 21 For the essence of the doctrine of the California courts in its history appears to be less the upholding of riparian rights than the upholding the dis- posal power of Congress and the necessity for -congressional action. In fact, Oregon has given just this effect to the Desert Land Act, 22 but it cannot be said how far the other States will accept this construction of that act, unless Congress puts it more explicitly. Congress has explicitly so provided only regarding waters in the Black Hills ; 23 that is, has provided that land patents shall not hereafter carry any riparian rights in the Black Hills of the Dakotas. Likewise there would seem, under this historical view, a field for the passage of Federal statutes leading up to water patents, just as Congress has done in the mining law leading up to mine patents, or legislation regarding conservation. The United States, until within the last year or two, has not moved to exercise the power which the foregoing historical theory accords. Now that Federal activity has arisen under the policy of conservation, it is being addressed to laws concerning rights of way and reservoir sites, and not to the waters them- selves, even in the States whose courts recognize riparian water- rights in the United States ; while recent statutes of the California legislature declare for State control and call waters the property of the people of the State. 24 20 Stats, of 1877-78, p. 1070. 24 Assembly Joint Resolution No. 8, 21 Caused, semble, by Van Sickle Session of 1911, dealing with Lake case. Tahoe; Stats. 1911, c. 406, for State 22 Hough v. Porter, 51 Or. 318, 95 control of the acquisition of water Pae. 732, 98 Pac. 1098, 102 Pac. 728. powers; and Stats. 1911, c. 407, de- 23 A. C., June 11, 1906, 34 Stats. claring waters the "property of the at Large, 234. people of the State." 158-166. (Blank numbers.) 167, Ch. 8. THE STATE IN COLORADO. (3d ed.) 185 CHAPTER 8. UNITED STATES OR STATE COLORADO DOCTRINE. A. STATEMENT OF THE COLORADO DOCTRINE. 167. The State system. t 168. The authorities quoted. 169. Same. 170. Water the "property of the public" or "of the State." 171. Sources from which this declaration is derived. 172. Construction given to the declaration. 173. Objections raised on behalf of the United States as landowner. 174. Objections on behalf of private landowners. B. BASIS OF THE COLORADO DOCTRINE. 175. Replies to the foregoing objections. 176. Basis upon Federal action. 177. Basis upon absence of Federal action. 178. Basis upon State sovereignty alone. 179. Some other arguments. 180. Views of United States supreme court. 181. Same Second period. 182. Same Third period. 183. Same. 184. Same. 185. Some inconsistencies and variations. 186. Conclusion. 187. Same. 188-196. (Blank numbers.) A. STATEMENT OF THE COLORADO DOCTRINE. (3d ed.) 167. The State System.In the States 1 following the "Colo- rado" doctrine (which, while hitherto opposed in the other juris- dictions by the courts, has been triumphing over the California doctrine in the supreme court of the United States and in the State legislatures, until to-day even the courts of the latter States in many cases seem to have been overruled by their legislatures), 2 the historical theory is not in force. The Federal proprietary title (and therewith, the common-law rights of riparian owners as Fed- eral successors in interest) is denied, and instead there- is an 1 Enumerated in sec. 118, supra. 2 Supra, sec. 124. 186 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 168 extensive State organization which has absolute control over all natural water resources . within their borders, whether on public or on private lands. All rights in waters are held to rest upon State sovereignty and State law. The State law proceeds upon the ground that the common law was unsuited to Western conditions, and only such parts of the common law are brought by settlers into new communities as are suited to their conditions a familiar doctrine. It rather denies that the United States as landowner was ever entitled to the rights of a riparian proprietor, because the law of the places where the lands lay never sanctioned riparian rights, and because the United States has no other rights than any other landowner in the State. Consequently no grantee of the United States can have riparian rights. Instead, appropriation is the sole law recognized. The appropriator looks for his rights to the State, and not the United States, these States usually having constitutional or statu- tory provisions expressly declaring that the ownership of all waters is in the State (or in the public, which is construed as meaning the State), and that the right to the use thereof can be obtained by appropriation, and in no other way. While the Cali- fornia courts started with a Federal title and deduced the law of riparian rights from that, the Colorado doctrine started from a rejection of riparian rights, and deduced a rejection of Federal title from that, since the United States holds its public land like other landowners in this respect. (3d ed.) 168. The Authorities Quoted. In Willey v. Decker 3 the authorities in support of this view are presented in an opinion by Mr. Justice Potter. First setting forth the California view, the court says: "Upon that theory the right acquired by prior appropriation on the public domain is held to be founded in grant from the United States government, as owner of the land and water, under the acts of Congress of 1866 and 1870. 4 "In this State, on the other hand, the common-law doctrine concerning the rights of a riparian owner in the water of a natural 3 11 Wyo. 496, 100 Am. St. Rep. * Citing U. S. Rev. Stats., sees. 939, 73 Tac. 210. Mr. Justice Potter's 2339, 2340; U. S. Comp. Stats. 1901, opinion in this case is one of the no- p. 1437. table investigations contained in the reports. 168 Ch. 8. THE STATE IN COLORADO. (3d ed.) 187 stream has been held to be unsuited to our conditions; and this court has declared that the rule never obtained in this jurisdic- tion. 6 It was said in the opinion in that case that 'a different principle better adapted to the material condition of this region has been recognized. That principle, briefly stated, is that the right to the use of water for beneficial purposes depends upon a prior appropriation.' And, further, in explanation of the reasons for the existence of the new doctrine, it was said: 'It is the natural outgrowth of the conditions existing in this region of country. The climate is dry, the soil is arid and largely unproductive in the absence of irrigation, but when water is applied by that means it becomes capable of successful cultivation. The benefits accruing to land upon the banks of a stream without any physical appli- cation of the water are few ; and while the land contiguous to water, and so favorably located as to naturally derive any sort of advan- tage therefrom, is comparatively small in area, the remainder, which comprises by far the greater proportion of our land other- wise susceptible of cultivation, must forever remain in their wild and unproductive condition unless they are reclaimed by irriga- tion. Irrigation and such reclamation cannot be accomplished with any degree of success or permanency without the right to divert and appropriate water of natural streams for that purpose and a security accorded to that right. Thus, the imperative and growing necessities of our conditions in this respect alone, to say nothing of the other beneficial uses, also important, has compelled the recognition rather than the adoption of the law of prior appro- priation. ' 6 "In view of the contention in Colorado that until 1876 the common-law principles of riparian proprietorship prevailed in that State, and that the doctrine of priority of right to water by priority of appropriation was first recognized and adopted in the constitu- tion, the supreme court of that State, by Mr. Justice Helm, con- cluded a discussion of the matter as follows: 'We conclude, then, that the common-law doctrine giving the riparian owner a right 5 Citing Moyer v. Preston, 6 Wyo. of the country. Any other rule would 308, 71 Am. St. Rep. 914, 44 Pac. 845. offer an effectual obstacle to the set- 6 In another Wyoming case it is tlement and growth of this region, said: "This use and the doctrine sup- and render the lands incapable of porting it is founded upon the necessi- successful cultivation." Farm Inv. ties growing out of natural conditions, Co. v. Carpenter, 9 Wyo. 110, 87 Am. and is absolutely essential to the de- St. Rep. 918, 61 Pac. 258, 50 L. R. A. velopment of the material resources 747. 188 (3ded.) Ft. II. CALIFORNIA - COLORADO DOCTRINES. 168 to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inappli- cable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation.' And it was further said that the latter doctrine has existed from the earliest appropriations of water within the boundaries of the State. 7 "When the question was first considered in the State of Nevada, the court held that the patentee of the government succeeded to all of its rights, and among these was the right to have the water of a stream theretofore 8 diverted returned to its natural channel. 9 But that case was overruled in Jones v. Adams. 10 And in Reno Smelting etc. Works v. -Stevenson, 11 it was unequivocally declared that the common-law doctrine of riparian rights was unsuited to the condition of that State. The court said : ' Here the soil is arid and unfit for cultivation unless irrigated by the waters of run- ning streams. The general surface of the State is table-land, traversed by parallel mountain ranges. The great plains of the State afford natural advantages for conducting water, and lands otherwise waste and valueless become productive by artificial irri- gation. The condition of the country, and the necessities of the situation, impelled settlers upon the public lands to resort to the diversion and use of waters. This fact of itself is a striking illus- tration and conclusive evidence of the inapplicability of the com- mon-law rule. ' u "The leading case in Arizona is Clough v. Wing. 13 In that case it is said that the problem to be solved in the arid portions of the ^ Citing Coffin v. Left Hand Ditch 10 19 ]Sr ev 78, 3 Am. St. Rep. 788, Co., 6 Colo. 443. 6 Pac. 442. -, , ., , , T 11 20 Nev. 269. 19 Am. St. Rep. 364, 8 Note the word "heretofore In 21 Pac 317 4 L R A 6Q so holding (as it did) the ear y Ne- 12 In an ^ ther N da cage - t . vada decision went to a length not - d ,, Th doctrine f rf iaQ rf ht to-day m force anywhere The Call- ig gQ unsuited to the conditions e ist . forma doctrine says only "thereafter ." in th Stat f N d d . 8Q The "theretofore was overruled m MU|t in its oper ation to the doc- Jones v. Adams. The "thereafter" // f ia \ io that it is not was not involved until the Reno case. t of ^^ and ^ oes not evajl See supra, sec. 87. ere Walgb y Wallace> 26 Ne ^. 2 99, Citing Van Sickle v. Haines, 7 99 Am. St. Rep. 692, 67 Pac. 914. Nev. 249, 15 Morr. Min. Rep. 201. 13 2 Ariz. 371, 17 Pac. 453. 168 Ch. 8. THE STATE IN COLOEADO. (3d ed.) 189 earth has not been how best to drain the water off the land and get rid of it, but how to save it to be conducted upon land in aid of the husbandman. The learned judge who wrote the opinion refers to the antiquity of irrigation in that section of country and in other lands, and remarks: 'Thus we see that this is the oldest method of skilled husbandry, and probably a large number of the human race have ever depended upon artificial irrigation for their food products. The riparian rights of the common law could not exist under such systems; and a higher antiquity, a better reason, and more beneficent results have flowed from the doctrine that all right in water in non-navigable streams must be subservient to its 'use in tilling the soil.' And, further, it is said that the com- mon law, so far as the same applies to the uses of water, 'has never been, and is not now, suited to conditions that exist here.' "The supreme court of Utah say: 'Riparian rights have never been recognized in this Territory, or in any State or Territory where irrigation is necessary; for the appropriation of water for the purpose of irrigation is entirely and unavoidably in conflict with the common-law doctrine of riparian proprietorship. If that had been recognized and applied in this territory it would still be a desert; for a man owning ten acres of land on a stream of water capable of irrigating a thousand acres of land or more, near its mouth, could prevent the settlement of all the land above him. For at common law the riparian proprietor is entitled to have the water flow in quantity and quality past his land as it was wont to do when he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation. The legislature of this territory has always ignored this claim of riparian pro- prietors, and the practice and usages of the inhabitants have never considered it applicable, and have never regarded it. ' 14 "In disposing of what the court calls the 'phantom of riparian rights;' and declaring that the maxim, 'First in time, first in right,' should be settled law in that jurisdiction, the supreme court of Idaho forcibly state the reasons for the new doctrine: 'Whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity. When, from among the most energetic and enter- prising classes of the East, that enormous tide of immigration poured into the West, this was found an arid land, which could be utilized as an agricultural country, or made valuable for its gold, w Citing Stowell v. Johnson, 7 Utah, 215, 26 Pac. 290. 190 (3ded.) Pt. II. CALIFORNIA - COLOEADO DOCTRINES. 168 only by the use of its streams of water. The new inhabitants were without law, but they quickly recognized that each man should not be a law unto himself. Accustomed as they had been, to obedi- ence to the laws they had helped make, as the settlements increased to such numbers as justified organization, they established their local customs and rules for their government in the use of water and land. They found a new condition of things. The use of water to which they had been accustomed, and the laws concerning it, had no application here. The demand for water they found greater than the supply, as is the unfortunate fact still all over this arid region. Instead of attempting to divide it among all, thus making it unprofitable to any, or instead of applying the common- law riparian doctrine to which they had been accustomed, they disregarded the traditions of the past, and established as the only rule suitable to their situation that of prior appropriation. This did not mean that the first appropriator could take what he pleased, but what he actually needed, and could properly use without waste. Thus was established the local custom, which pervaded the entire West, and became the basis of the laws we have to-day on that subject.' " 15 As to the effect of this inapplicability upon the common law, the statutes of Nevada adopted the common law of England in the following words: "The common law of England, so far as it is not repugnant to or in conflict with the constitution and laws of the United States, or the constitution and laws of this State, shall be the rule of decision in all the courts of this State." The supreme court of Nevada, in Reno Smelting etc. Co. v. Steven- son, 16 construing this statute in its application to riparian rights, said: "The statute is silent upon the subject of the applicability of the common law, and we think the term 'common law of Eng- land' was implied in the sense in which it is generally understood in this country, and that the intention of the legislature was to adopt only so much of it as was applicable to our condition." And Judge Hawley said in declaring the law of Nevada: 17 "Ripa- rian rights are founded upon the ancient doctrine of the common law. If the law is a progressive science, courts should keep pace with the progress and advancement of the age, and constantly bear 15 Citing Drake v. Earhart, 2 Idaho 17 Union Min. Co. v. Dangberg, 81 (716), 750, 23 Pac. 541. Fed. 73. 16 20 Nev. 289, 19 Am. St. Rep. 364, 21 Pac. 317, 4 L. R. A. 60. f 168 Ch. 8. THE STATE IN COLORADO. (3d ed.) 191 in mind the wants and necessities of the people and the peculiar conditions and surroundings of the country in which they live. In this connection it has been said to be one of the excellencies of the common law, that it admits of perpetual improvement, by accommodating itself to the circumstances of every age, and applies to all changes in the modes and habits of society, and in this re- spect it will never be outgrown by any refinements, and never out of fashion, while the ideality of human nature exists." In an Arizona case, 18 a concurring opinion: "Without further elabora- tion of my reasons, I state my belief that the utter incompatibility of the doctrine of riparian rights with the conditions of life in this territory is an all-sufficient reason, under the principles of the common law itself, to hold that that doctrine is not here in force. ' ' 19 In the same case on appeal to the supreme court of the United States, this was approved, saying of a statute adopting the com- mon law in general terms: "It is far from meaning that the patentees of a ranch on the San Pedro are to have the same rights as owners of an estate on the Thames. ' ' 20 Under the Colorado doctrine, the "grant" principle of the Cali- fornia theory 'is not recognized. "We had occasion recently to consider whether the right of a citizen to use water within the State for irrigation of lands is granted by the State or general government, and were unable to discover any principle of that kind. " 21 A patent from the government to land through which water flows or percolates does not give color of title to the water. 22 That is, the land grant does not confer even color of title as a 18 Boquillas etc. Co. v. Curtis, 11 Sup. Ct. Eep. 493, 53 L. Ed. 822. Ariz. 128, 89 Pac. 504; affirmed in Cf. dissenting opinion of McBride, 213 U. S. 339, 29 Sup. Ct. Rep. 4-93, J., in Flinn v. Vaughn (Or.), 106 53 L. Ed. 822. Pae. 643, urging the same argument 19 Compare what was said in an for rejection of the common law of early California case concerning min- logging, saying: "There is no more ing rights. Sanderson, C. J., in Mor- good reason for applying common- ton v. Solambo Min. Co., 26 Cal. 527, law rules to riparian rights on our 4 Morr. Min. Rep. 463, spoke against floatable streams than there is for being "tied down to the treadmill of applying the English custom of the common law" in regard to mining primogenitxire, or conveyance by fine rights. And compare the opinion of and recovery, to our system of land Shaw, J., in Katz v. Walkinshaw, 141 tenures." Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 21 Hoge v. Eaton, 135 Fed. 411, 663, 74 Pac. 766, 64 L. R. A. 236, citing Mohl v. Lamar Canal Co. (C. concerning the law of percolating C.), 128 Fed. 776. waters, and applying the same reason- 22 Clark v. Ashley, 34 Colo. 285, 82 ing thereto. Pac. 588. See Cascade Co. v. Empire 20 Boquillas L. & C. Co. v. Curtis Co. (Colo.), 181 Fed. 1011. (1909), 11 Ariz. 128, 213 U. S. 339, 29 192 (3d ed.) Pt. II. CALIFORNIA - COLOEADO DOCTRINES. 169 grant of the water. It was held 23 that the legislature could not confer water-rights by grant. Possession and use of the water are necessary to create the right to its continued use. Says the supreme court of Utah: "To initiate and acquire a right in and to the use of unappropriated public water, whether on the public domain or within a reservation or elsewhere, is dependent upon the laws or customs of the State in which such water is found." 24 So it is ruled that the United States Reclamation Service must proceed under State law, and if it condemns land, does so only under the general State laws. 25 (3d ed.) 169. Same. Perhaps no stronger exposition of this doctrine has been given than in a late Colorado case. 1 Plaintiff obtained a land patent in 1868, while Colorado was still a Territory, the stream naturally flowing therethrough. Many years after patent issued, a corporation organized to create light, heat and power> diverted the stream from his land. It was held that plaintiff has no cause of action ; and Mr. Justice Campbell, delivering the opin- ion of the court, said: "We are entirely satisfied that the sole question argued and submitted to the trial court by counsel on both sides was whether the common-law doctrine of continuous flow under the facts disclosed by this record exists in Colorado. At this late day it would seem to us, as it evidently did to the trial court, idle to make such contention in this State. The matter has long ago been set at rest. The authorities relied upon by plaintiffs are those which sustain the so-called California doctrine, first clearly and definitely announced by the supreme court of California in Lux v. Haggin, 2 in which, inter alia, it was held that the common law as to riparian ownership was not abolished by any law of that State, but still existed there side by side with the doctrine of appropriation. 3 The supreme court of the United States in several cases has approved and indicated its satisfaction with 23 Platte Water Co. v. Northern Irr. See > also > Vr 7 recently, Hagerman Co. Co., 12 Colo. 525, 21 Pac. 711. v - McMurray (N. M.), 113 Pac. 823. 2 69 Cal. 255, 4 Pac. 919, 10 Pac. 24 Sowards v. Meagher (Utah), 108 574. Pac. 1113. 3 Citing the first edition of this 25 Burley v. United States, 179 book - sections 16 and 17. See, also, Fed i. sections 18 and 19 of the first edition ; sections 22 and 23 of the second edi- Sternberger v. Seaton etc. Co. tion; and sections 117 and 118 of this, (1909), 45 Colo. 401, 102 Pae. 168. the t ' hird edition> 170 Ch. 8. THE STATE IN COLORADO. (3ded.)193 the decisions of the State courts which hold that the common-law doctrine has been abolished, and has said that each State, without interference by the Federal courts, may for itself, and as between rival individual claimants, determine which doctrine shall be therein enforced." 4 And later in the same opinion: "The doc- trine in this State, that the common-law rule of continuous flow of natural streams is abolished, is so firmly established by our con- stitution, the statutes of the Territory, and the State, and by many decisions of this court, that we decline to reopen or recon- sider it, however interesting discussion thereof might otherwise be, and notwithstanding its importance." And again, in the same opinion: "To uphold plaintiffs' cause of action as made by their complaint, and as tried and submitted below, would necessitate the reversal of an unbroken line of decisions of this court from the beginning to the present time, result in tearing up, root and branch, the statute law of the Territory and of the State, and the nullification of the provisions of the constitution itself on the' subject of appropriation This judgment, being in -effect that the common-law doctrine of continuous flow of a natural stream is inapplicable to conditions in this State, and that by necessary construction of our local customs, statutes, and consti- tution it is abolished, is affirmed. ' ' 5 (3d ed.) 170. Water "the Property of the Public" or "of the State." Accompanying this view that the law of appropriation rests upon the inapplicability of any other rule are statutes or constitutional provisions expressly declaring that the ownership of all waters is in the State (or in the public). "In this and other jurisdictions where the common law in respect to the use of water and the right thereto is altogether ignored, there has been established, either by judicial decision or statute, or both, as an essential prin- ciple, that the water of all natural streams is the property of the public or of the State." 8 * Citing cases. found other very late expressions. 5 In a recent Idaho case (Hutchin- This Idaho case, however, upholds son v. Watson D. Co. (Idaho, 1909), some right in the riparian owner, 16 Idaho, 484, 133 Am. St. Rep. 125, though inferior to appropriators. See 101 Pac. 1059) and a recent New supra, sec. 118, and infra, see. 367. Mexico case (Hagerman Co. v. Me- 6 Willey v. Decker, 11 Wyo. 496, Murray (N. M.), 113 Pac. 823), are 100 Am. St. Rep. 939, 73 Pac. 210. Water Bights 18 194 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 170 All waters within the State are declared to be "the property of the public" (or to "belong to the public") in Arizona, Colorado, Montana, Nebraska, Nevada, New Mexico, North Dakota, Okla- homa, Oregon, South Dakota, Texas, Utah, and Wyoming. 7 In the following, declared to be "the property of the State": Idaho, Nevada, North Dakota, Wyoming. 8 The California legislature in 1911 declared waters the "property of the people of the State." 8a In California, where the courts had refused to take this stand, and have considered title to the usufruct of waters upon public lands to be in the United States, the. legislature at one time called upon Congress to abrogate riparian rights and to declare as to the waters "that the same be granted and dedicated to the States and Territories where the same are situated, ' ' 9 and, whether influenced by this or not, I do not know, Congress in 1877 (the same year) passed the Desert Land Act, providing that all waters upon public lands should be and remain "free for the appropriation and use of the public,"' which, in the very important recent case of Hough v. Porter, 10 in Oregon, has been held to have constituted an irrevocable dedication to the people where the waters lay, and to constitute a source of local public ownership by gift from the United States. Following out this idea, Western members of Congress in 1910 introduced bills to grant power sites and rights 7 Arizona. Rev. Stats. 1901, sec. Utah. Stats. 1905, c. 108, sec. 47, 4174 (running water is "declared pub- Stats. 1907, pp. 56, 248 ; Comp. Laws lie"). 1907, sec. 1288x18. Colorado. Const., art. 16, sec. 5. Wyoming. Stats. 1886; Rev. Stats. Montana. Civ. Code, sec. 1880. * 8 87, sec. 1344. See Smith v. Denniff, 24 Mont. 20, 81 8 Idaho. Civ. Code 1901, sec. 2625. Am. St. Rep. 408, 60 Pac. 398, 50 See Speer v. Stephenson (Idaho, L. R. A. 741. The section speaks of 1909), 16 Idaho, 707, 102 Pac. 365; the waters "of this State," but does Village of Twin Falls v. Stubbs not expressly go further. (Idaho, 1908), 15 Idaho, 68, 96 Pac. #&*. Comp. Stats. 1903, sec! 195 - See also, Const, art 15, sees. 4 6450; Cobbey's Stats. 6796; Laws ^nd 5; McLeans Rev Codes sec. 1895 t> 260 3240; Laws 1901, p. 191, sec. 9b. r ,? cw,<~ -I ana ~ VA c i Nevada. Comp. Laws 1900, sec. Nevada.-Stot*. 1)03, p 24, sec 1. P ^ New M^co.-Stats. 1907, p. 71, ^ ^^Consi., art. 17, sec. sec. i. 2io North iDaTcota-Stet* .1905, c .34, Wyoming. i*** 1909, p. 112, c. sec. 1; Rev. Codes (1905), sec. ,604. ^ J j/Const., art. 8, sec. 1. See, Oregon. Stats. 1909, c. 221, sec. 1. a lso, Ibid., art. 1, sec. 31. South Dakota. Stats. 1905, p. 201, 8a Cal. Stats. 1911, c. 407, amdg. sec. 1; Stats. 1907, p. 373, sec. 1. Civ. Code, sec. 1410. Texas. Sayles' Civ. Stats. 1900, Laws 1877-78, p. 1070. art. 3115 et seq. Supra, sec. 329. 171 Ch. 8. THE STATE IN COLORADO. (3d ed.) 195 of way upon public lands to the States, since Congress already had dedicated the waters themselves to the people of the State. 11 (3d ed.) - 171. Sources from Which This Declaration is Derived. State or local public proprietorship is thus derived in the alterna- tive in the jurisdictions (now, by statute, nearly all the Western States) asserting it; that is, either as inherent in general law, or as having been created by the United States. Three considerations are to be noted as to this. First, the proposition that State or local proprietorship is inher- ent law is a result of the change in the way of stating the idea of the "negative community." 12 As the theory of "negative community" had been applied in the early California days, the corpus of running water was held incapable of ownership, either by private individuals or by the State or by the United States, 13 and the usufruct or right to its flow and use belonged to the United States as landowner until it granted a use to private parties. 14 This negative idea that running water as such belonged to no one became changed in the younger States by substituting the positive expression that they belonged to the "State in trust for everyone"; a change from negative to positive expression similar to that which has taken place in the way of stating the law of the beds oi navigable waters and the law regarding wild game. Thus, while the shores of the sea and beds of navigable waters are, in the civil law, in "the negative community" and "common" as dis- tinguished from "public," the modern phrase is that they are owned by the State in trust for the people. 15 The same change is fairly well established regarding wild animals or game. 16 And so has come the change in the above States from the negative idea that running waters as a substance belong to no one, to the positive idea that they belong to the ' ' State in trust for the people. ' ' ll A resolution just adopted by the invasion of the rights of the people California legislature concerning the of this State." Assembly Joint RPSO- \vaten> of Lake Tahoe, protesting lution No. 8, Session of 1191. See, against a contract made between the further, supra, p. 165, note 20. United States Reclamation Service 12 Supra sec 6 and private parties, declares that . T^-JJ "The State of California claims to , 13 idd v ^a ml, 15 Cal 161 76 own the major .portion of the waters Am " Dec ' 472 > 4 Morr - Min - Re P- 571 ' of said lake and protests against the 14 Supra, sec. 82. diversion of said waters, and will re- 15 Supra, sec. 6. sist the diversion contemplated, as an W Supra, sec. 33; infra, sec. 907. 196 (3ded.) Pt. II. CALIFOENIA - OOLOEADO DOCTRINES. 172 Second, this change was facilitated by the policy of "free de- velopment" established by the United States from the earliest times for waters on its public lands. This policy was so firmly fixed by Congress by the act of 1866 17 that it came to be regarded as inherent law, especially as the United States never has at- tempted theretofore or thereafter to exercise rights of ownership, but, on the contrary, reaffirmed its position in the Desert Land Act of 1877, 18 and because the people at large in the West have looked only to the State as a matter of fact. Third has been the confusion between sovereignty and propri- etorship. No lawyer denies that sovereignty or regulative power over public uses of waters under the police power resides in the States, and this has not been distinguished from ownership there- of. 19 (3d ed.) 172. Construction Given to the Declaration. So far as the courts have considered the matter (there is little discussion in the reports), they have treated these as declarations of sovereignty of the State, rather than proprietorship. The declaration that the waters are "the property of the State" was undoubtedly intended by the legislatures as an assertion or declaration that the State owns the waters the same as a public building. 20 But Jhe courts have tended to view the water itself much in the light of the orig- inal idea of the "negative community" as without any ownership at all (neither private, State, or national), except as to its flow and use or "usufruct," which rights of use are subject to State regu- lation in whomsoever they may reside. The courts, in the first place, hold that declarations that the waters are "the property of the State" and "the property of the public" are synonymous. The Wyoming court says: "There is to be observed no appreciable distinction, under the doctrine of prior appropriation, between a declaration that the water is the property of the public, and that it is the property of the State," 21 and in three States above both expressions are used in the statutes. 17 Supra, sec. 94 et seq. .... the principle in mind when the ts Supra, sec. 128. laws were enacted was undoubtedly 19 Infra, sec. 1338 et seq. that the State was proprietor of the 20 "These provisions were founded water and granted rights to its use. on a principle new to American irri- . . . ." Bulletin 168,- U. S. Dept. gation law. The State was declared Agrie. to be the owner of the water, and 21 Farm Tnv. Co. v. Carpenter, ft rights to its use were to be acquired Wyo. 110, 87 Am. St. Rep. 918, 61 by grant or license from the State; Pac. 258, 50 L. R. A. 747. 172 Ch. 8. THE STATE IN COLORADO. (3d ed.) 197 Then, as to the meaning of "property of the public," while in the law of distribution to public uses this is held to give consumers (as the public) rights of actual ownership in the natural resources in place of the distributing agencies, 22 yet in the present connec- tion it is construed more as meaning the same as the phrase "pub- lid juris," an old phrase in the law; 23 that water is a wandering thing, whose corpus is incapable of ownership either by the State or the United States, the utmost right being usufructuary, a flow and use only, and may be used by any member of the public first applying subject to State police power regulation. "Under the rule permitting the acquisition of rights by appropriation the waters be- come perforce 'publici juris,' >>24 and in a Colorado case 25 "the waters of flowing streams are publici juris the gift of God to all His creatures. ' ' * The State 's office is regulative, to see that those who use the water do not violate their duties to each other, 2 and hence acts in its sovereign capacity only not as owner of the water ; the State operates only under the police power. 3 "The obvious mean- ing and effect of the expression that the water is the property of the public is that it is the property of the people as a whole. What- ever title, therefore, is held in and to such water resides in the sovereign as representative of the people. The public ownership, if any distinction is material, is rather that of sovereign than pro- prietor. That ownership, however, is subject to a particular trust or use, specially defined in the statutes and in the constitution" 22 Infra, sec. 1338 et seq. human life, like air." Mr. Garfield, 23 Supra, sec. 5; infra, sec. 688. before the Senate Committee on Pub- 24 Willey v. Decker, 11 Wyo. 496, lie Lands, Feb. 16, 1910. 100 Am. St. Rep. 939, 73 Pac. 210. 2 In Speer v. Stephenson (Idaho, 25 Mohl v. Lamar Canal Co. (C. C. 1909), 16 Idaho, 707, 102 Pac. 365, Colo.), 128 Fed. 776. it is said that the term "public i Quoting Blackstone, bk. II, p. 14, waters" refers to all water running and saying suoh is the effect of the in the natural channel of the streams, Colorado constitution, art. 16, sec. 5. and the State may by proper legisla- "We shall presently see that after tion regulate the appropriation and appropriation the title to this water, use thereof, and private rights author- save, perhaps, as to the limited quan- ized by the law were simply to tho tity that may be actually flowing in use of the public waters, and not an the consumer's ditch or lateral, re- ownership in them, at least while they mains in the general public, while the were flowing in the natural channel, paramount right to its use, unless for- 3 Robertson v. People ex rel. Soule, feited, continues in the appropriator." 40 Colo. 119, 90 Pac. 79, citing Farm- Wheeler v. Northern Irr. Co., 10 Colo. ers' etc.. Co. v. Southworth, 13 Colo. 582, 587, 588, 3 Am. St. Rep. 603, 17 111, 21 Pac. 3028, 4 L. R. A. 767; Pac. 487." White v. Farmers' etc. Co., 22 Colo. "I think the best opinion now is 191, 43 Pac. 1028, 31 L. R. A. 828; that running water is not a 'property' Lamson v. Vailes., 27 Colo. 201, 61 of the State but that it belongs to Pac. 231 ; Fort L/yon etc. Co. v. Chew, the public, a common necessity of 33 Colo. 392, 81 Pac. 37. 198 (3ded.) Pt. II. CALIFOENIA - COLORADO DOCTRINES. 172 (i. e., for use by appropriators) . 4 "By either phrase, 'property of the public' or 'property of the State,' the State, as represen- tative of the public or the people, is vested with jurisdiction and control in its sovereign capacity. " 5 So in Kansas v. Colorado, 6 it was held that the State's regulative power was paramount, with- out intimation of an actual State ownership. As the office of the State under this construction is only regu- lative and not one of actual ownership, the Idaho court considered a suit to determine existing rights purely one to settle private rights. It had been urged (as the legislature by the declaration of State and public ownership certainly intended) that it was pri- marily a determination concerning State property, but the court held otherwise, and held that a public official could not bring such a suit against all existing appropriators to show their rights. It was held a suit concerning private property and not State prop- erty. 7 And likewise it is held that an appropriation for use out- side the State is permissible, and not an abstraction of State property. 8 In North Dakota and Montana a declaration of State ownership is held not to prevent the existence of riparian rights. 9 But neither court went further into the matter than to refuse to give effect to the provision contrary to the conclusion upholding riparian rights arrived at in those cases. In the Montana case, 10 the court says that by such declaration the State assumed to itself the ownership of the waters "sub modo," which is indefinite, to say the least. In the North Dakota case it was said concerning the effect upon riparian rights of a declaration that water is the property of the State: "Such rights are under the protection of the fourteenth amendment to the Federal constitution, which protects property against all State action that does not constitute due process of law. It follows that section 210 of the State constitution would itself be unconstitutional in so far as it attempted to destroy those 4 Willey v. Decker, 11 Wyo. 496, Mohl v. Lamar Canal Co. (Colo.), 128 100 Am. St. Rep. 939, 73 Pac. 210. Fed. 776; Hoge v. Eaton, supra; Bean 5 Farm. Inv. Co. v. Carpenter, 9 v. Morris, 159 Fed. 651, 86 C. C. A. Wyo. 110, 87 Am. St. Rep. 918, 61 519. Pac. 258, 50 L. R. A. 747. 9 Bigelow v. Draper, 6 N. D. 152, 6 206 U. S. 46, 27 Sup. Ct. Rep. 69 N. W. 570; Smith v. Denniff, 24 655, 51 L. Ed. 956. Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 7 Bear Lake v. Budge, 9 Idaho, 703, 398, 50 L. R. A. 741. 108 Am. St. Rep. 179, 75 Pac. 615. 10 Smith v. Denniff, 24 Mont. 20, 81 8 Willey v. Decker, 11 Wyo. 496, Am. St. Rep. 408, 60 Pac. 398, 50 100 Am. St. Rep. 939, 73 Pae. 210; L. R, A. 741. 172 Ch. 8. THE STATE IN COLORADO. (3d eL) 199 vested rights of property, if it should, by construction, be given a scope sufficiently wide to embrace such matters. For this reason we feel constrained to hold, despite its broad language, that sec- tion 210 was not framed to devest the rights of riparian owners in the waters and bed of all natural watercourses in the State." It was further said that the declaration of State ownership pos- sibly would prevent private persons from totally diverting a water- course, thus construing it in opposition to appropriation entirely. 11 Neither the North Dakota nor Montana decision lends much aid in arriving at the meaning of such phrases, although, if the declara- tion means that running waters are "publici juris," they are cor- rect in holding it not opposed to the riparian doctrine. 12 Under the Colorado doctrine, then, it is denied that the United States has an interest in the waters on its lands as proprietor, and waters are either owned by the State in trust for the people, or are "publici juris," owned by no one at all, but free for use by all under State police power regulation, which protects the first comer, the prior appropriator, to the extent of his beneficial use. As between the latter two ideas, the choice of expression has not yet become fixed; but for our present purpose it is enough to notice that both agree in denying proprietary title of any kind in the United States at the present day. 13 Under both the Colorado and California doctrines the State control over public uses is, in law, paramount ; but while the California doctrine recognizes the United States as a riparian proprietor, the Colorado doctrine does not recognize the United States as a proprietor of waters in any sense. 11 Bigelow v. Draper, 6 N. D. 152, landowners as the proprietors, not the 69 N. W. 570. State at large. People v. New York 12 Supra, sec. 2 et seq.; infra, see. etc. Co. (1910), 196 N. Y. 421, 90 N. 684 et seq. E. 441, Cullen, C. J. In a recent New York case it was 13 "By the adoption of our State held that the State has control over constitution, all of the unappropriated the Niagara River, but no property or waters at that time were declared to ownership in its waters. Niagara etc. be public waters, and it matters not Co. v. College etc. Co., Ill App. Div. through or over whose land they flow." 770, 98 N. Y. Supp. 4. See, also, Speer v. Stephenson (1909), 16 Idaho. Auburn V. W. Co., 90 Me. 537, 38 Atl. 707, 102 Pac. 365. 561, 38 L. R. A. 188. "The bill refers to waters belonging In another New York case, it is said , to the government. I do not know that while the State may regulate the what waters belong to the Federal use of percolating water, it does not government. I do not know that the own it as a proprietor. The attorney Federal government owns the waters." general may sue to enforce the regu- Mr. Mondell of Wyoming, in the lation, but then only for the com- House of Representatives, munity of overlying or adjacent 200 (Wed.) Pt. II. CALIFORNIA -COLORADO DOCTRINES. 173 (3d ed.) 173. Objections Raised on Behalf of the United States as Landowner. By the courts following the California view, aside from the practical objection above adverted to, denying the inap- plicability, of the common law, legal objections are also urged against the Colorado doctrine as a matter of constitutional law. The first and most important objection is that the proprietary rights of the United States as landowner are either omitted or denied in the Colorado calculation. Regarding the system of ap- propriation as having force only by the permission of the United States as the original landowner of all this region, the California and similar courts have expressed difficulty in understanding the view of those States which, following the Colorado system, declare that the appropriator receives his- rights from the State alone, dis- regarding the rights of the United States as original sole riparian owner, or the riparian rights of the grantees of its land. Granting that those parts of the common law which are in- applicable are not brought in by settlers, yet the rights of the United States antedated the settlement of the States in question. Some right in the United States to the waters must, it is said, have attached to the public land on its original acquisition by the United States under such treaties as the Louisiana Purchase or the treaty of Guadalupe Hidalgo. The difficulty is said to be that some right to the unused water flowing 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 settlement of the land must have been that of sole riparian pro- prietor. That the 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 as riparian owner from the United States or prevent it from giving riparian rights to its grantee, or take them away from its grantee. Such a refusal to recognize the rights of the United States, and such prevention of its granting riparian rights to the grantees of its land is said to be an interference with the primary disposal of the public land; infringes on the power of Congress. Article 4, 173 Ch. 8. THE STATE IN COLORADO. (3d ed.) 201 section 3, clause 2, of the constitution of the United States, reads as follows: "The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States, and nothing in this Con- stitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." In Lux v. Haggin, 14 after holding that the right to the water on public lands originally must have belonged to the United States, as to any landowner, as parcel thereof, or an incident thereto, the court says: "But when the State is prohibited from interfering with the primary disposal of the public lands of the United States, there is included a pro- hibition of any attempt on the part of the State to preclude the United States from transferring to its grantees its full and com- plete title to the land granted, with all its incidents." And fur- ther says, "But where one or both of the parties claim under a grant from the United States (the absolute owner, whose grant includes all the incidents of the land, and every part of it), it is difficult to see how a policy of the State, or a general practice, or rulings, of the State court with reference to adverse occupants on public lands, can be relied on as limiting the effect of grants of the United States, without asserting that the State, or people of the State, may interfere with 'the primary disposal of the public lands.' .... Of course the State cannot interfere with the pri- mary disposition of such lands by their owner. September 9, 1850, the act of Congress 15 was approved admitting the State of Cali- fornia into the Union 'on an equal footing with the original States in all respects whatever,' with the condition that the State should never interfere with the primary disposal of the public lands within its limits." 16 In a recent case it was said that the rights of an appropriator do not rest on the laws of a State (even in Wyoming, one of the arid States), but upon the laws of Congress, and the legislative enactment of a State (Wyoming) is only a condition which brings 14 69 Cal. 255, at 373, 10 Pac. 674. to take from the grantee the flow 15 9 Stats, at Large, 453. of the stream, acquired from or sought 16 Such a clause is contained in all to be conveyed by the United States, acts of admission. Compare N. D. and confer the waters on one who has Const., art. 16, sec. 203. See, also, acquired no right to them from the Union Min. Co. v. Ferris, Fed. Cas. United States, be an interference with No. 14,371, 2 Saw. 176, 8 Morr. Min. the primary disposal of the public Rep. 90. lands!" Lux v. Haggin, 69 Cal. 255, "Would not a State law which, in at 372, 10 Pac. 674. advance of the grant, should attempt 202 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 174 the law of Congress into force. 17 In another case 18 the court says : "In the Eastern part of Montana 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." "If a person receives a patent from the United States for land subject only to accrued water-rights, 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 custom can take away such rights except for some public purpose." As to the early "phantom" that, before the act of 1866, the pioneers were mere trespassers on public lands, it is forgotten; but the Colorado doctrine in effect denies that by asserting that the pioneers had rights under State law, without resorting to any theory of Federal action to elevate them from in fact being mere trespassers (as the California court had felt bound to do by pre- suming a Federal grant). As to the early Colorado decisions usually referred to, they were only dictum, says Lux v. Haggin. as the actual decisions involved only land grants subsequent to the diversion. "In CoSin v. Left- Hand Co., .... the appropriation of the water was prior to the patent There is nothing in that case which would give preference to an appropriation of water made, as in the case at bar, long after the grant of the land It would seem clear, however, that the rights of parties who claimed title under grant from, the United States of parts of the public domain must be de- termined by reference to laws of the United States relating to the disposition of its domain; and this fact is recognized by the supreme court of Colorado, which appeals to Broder v. Water Co. as supporting its interpretation of those laws. ' ' 19 (3d ed.) 174. Objections on Behalf of Private Landowners. It is next objected that, as a State cannot prevent the United States giving riparian rights to its grantee, the Colorado law takes the private landowner's property from him without due process of 17 Anderson v. Bossman, 140 Fed. 19 Lux v. Haggin, 69 Cal. 255, 10 14, at 21. Pac. 674. is Cruse T. McCauley, 96 Fed. 369. 174 Ch. 8. THE STATE IN COLORADO. (3d ed.) 203 law, after it is given him by the United States, in permitting its diversion from him by subsequent appropriators. Lux v. Haggin says : ' ' The right to the use of the water as part of the land once vested in its private grantee, the State has no power to devest him of the right except on due compensation Aridity of the soil and air being made the test, the greater the aridity the greater the injury done to the riparian proprietors below by the entire diversion of the stream, and the greater the need of the riparian proprietor the stronger the reason for depriving him of the water. It would hardly be a satisfactory reason for depriving riparian lands of all benefit from the flow that they would thereby become utterly unfit for cultivation or pasturage, while much of the water diverted must necessarily be dissipated." 20 In Washington it was recently held 21 that an act of the legislature, authorizing a land- owner to use all the spring water arising on his land, and thereby destroying the use of such water to the lower riparian owner, would be unconstitutional, as a taking or destroying of property without due process of law. 22 Necessity has its limits as an argument, it is said. "While the argument db inconvenienti should have its proper weight in ascer- taining what the law is, there is no 'public policy' which can em- power the courts to disregard the law, or, because of an asserted benefit to many persons (in itself doubtful), to overthrow the set- tled law We know of no decisions which intimate that a difference in climatic or geographical conditions may operate to transfer a right of property from those in whom a right of prop- erty is vested by the common law. ' ' 23 And in another case : ' ' But how it can be held that that which is an inseparable incident to the ownership of land in the Atlantic States and the Mississippi valley, is not such an incident in this or any other of the Pacific States, we are unable to comprehend. It certainly cannot be true that a difference in climatic conditions or geographical position can 20 See, also, Rossmiller v. State, the ownership of property by its mere 114 Wis. 169, 91 Am. St. Rep. 910, fiat. It can no more accomplish that 89 N. W. 839, 58 L. R. A. 93, where result in that way than it can change it was held, among other things, that the laws of nature by legislative the legislature could not declare that declaration." "ice formed upon meandered lakes of 21 Nielson v. Sponer, 46 Wash. 14, the State is the property of the State." 123 Am. St. Rep. 910, 89 Pac. 155. In this connection the; court said: 22 See, also, Hollett v. Davis (1909), "The legislature has no such arbitrary 64 Wash. 326, 103 Pac. 423. power, under our constitutional svs- 23 Lux v. Haggin. tern, as that of changing the nature f 204 (3ded.) Pt. II. CALIFORNIA- COLOEADO DOCTRINES. 174 operate to deprive one of a right of property vested in him by a well-settled rule of common law. The mere fact that the appellants will not be able to occupy or cultivate their lands as they hereto- fore have done unless they can irrigate them with water taken from the Ahtanum River is no sufficient reason for depriving the re- spondents, who settled upon that stream in pursuance of the laws of the United States, of the natural rights incident to their more advantageous location. The necessities of one man, or of any num- ber of men, cannot justify the taking of another 's property without his consent, and without compensation. If it be true, as claimed by appellants, that, if the judgment of the court below is affirmed, their lands will again become a barren waste, and cease to ' blossom as the rose, ' it is equally true that, if the waters of the river are diverted from its channel, the premises of the respondents will become unpro- ductive and utterly worthless. " 24 In Nebraska it is said : 25 " "We do not feel justified in departing from a position so generally recog- nized and accepted as being correct, so well supported by reason and authority, and which, it is believed is in soundness impregnable. .... Not only should the inapplicability of a common-law rule be general, extending to the whole or the greater part of the State, or at least to an area capable of definite judicial ascertainment, to justify the courts in disregarding such rule, but we think, in view of the ease with which legislative alteration and amendment may be had, the power to declare established doctrines of the common law inapplicable should be used somewhat sparingly. In the whole course of decisions in Nebraska, from the territorial courts to the present, this power has been exercised but three times. ' ' 1 In a late case the California court emphatically reaffirmed the stand taken in Lux v. Haggin, saying through Mr. Justice Sloss: "It is argued that unless appropriators are permitted to divert and store for future use water which would otherwise run into the 24 Benton v. Johncox, 17 Wash. 277, and money as well as water, but he 61 Am. St. Rep. 912, 49 Pac. 498, 39 cannot have either unless he first L. R, A. 107. makes it his own." 24 Pa. 302, 64 Black, J., said in Wheatley v. Chris- Am. Dec. 657, 11 Morr. Min. Rep. 24. man: "The necessities of one man's 25 Crawford Co. v. Hathaway, 67 business cannot be the standard of Neb. 325, ]08 Am. St. Rep. 647, 93 another's right in a thing which be- N. W. 781, 60 L. R, A. 889. longs to both If he needed 1 In a Texas case it is said: "It is more, he was bound to buy it. How- difficult to see how the courts of this ever laudable his enterprise might be, State can ignore the common law as he cannot carry it on at the expense a rule of decision where it is made so of his neighbor. One who desires to by statute." Diamond v. Harris, 33 work a lead mine may require land Tex. 637. 174 Ch. 8. THE STATE IN COLOEADO. (3d ed.) 205 sea and be wasted, there will be a failure to make the most bene- ficial use of the natural resources of the State, and that riparian owners should not be permitted to obstruct the development of these resources. It may be that if nonriparian owners are permitted to intercept the winter flow of streams in order to irrigate nonripa- rian lands or to develop power, the water so taken will permit the cultivation of more land and benefit a greater number of people than will be served if the flow continues in its accustomed course. But the riparian owners have a right to have the stream flow past their land in its usual course, and this right, so far as it is of regu- lar occurrence and beneficial to their land is, as we have frequently said, a right of property, 'a parcel of the land itself.' Neither a court nor the legislature has the right to say that because such water may be more beneficially used by others it may be freely taken by them. Public policy is at best a vague and uncertain guide, and no consideration of policy can justify the taking of pri- vate property without compensation. If the higher interests of the public should be thought to require that the water usually flow- ing in streams of this State should be subject to appropriation in ways that will deprive the riparian proprietor of its benefit, the change sought must be accomplished by the use of the power of eminent domain. The argument that these waters are of great value for the purposes of storage by appropriators and of small value to the lower riparian owners defeats itself. If the right sought to be taken be of small worth, the burden of paying for it will not be great. If, on the other hand, great benefits are con- ferred upon the riparian lands by the flow, there is all the more reason why these advantages should not, without compensation, be taken from the owners of these lands and transferred to others." 2 What is "public interest"? 2a For example, the California court in one recent instance, admittedly treating a case as one of first impression, unbound by precedent in the specific case and seeking only for the public interest, unanimously applied the riparian doc- trine as imperatively demanded by conditions in the Santa Clara Valley. 3 In a recent New Mexico case, under a statute demanding an inquiry into the public interest in a certain other water matter, the case went through four different tribunals all looking* for the 2a Elsewhere, again, this question similarity of this opinion to Silver must be met. See infra, sec. 649. Spring etc. Co. v. Waukuck etc. Co. 2 Opinion upon rehearing in Miller (1882), 13 B. I. 611, 15 Eep. 94! & Lux v. Madera etc. Co. (1909), 155 3 Miller v. Bay Cities W Co 157 Cal. 59, 99 Pac. 502, 22 L. E. A., N. Cal. 256, 107 Pac. 117, 27 L. E. A.. 8., 391, italics inserted. Compare the N. S., 772. 206'(3ded.) Pt. II. CALIFOENIA - COLORADO DOCTRINES. 174 true public interest, and most of them disagreed as to what the public interest was. 4 Statesmen themselves from time immemorial have disagreed upon it. 5 There has always been some suggestion in the California reports looking to the adoption of the ground of "shaping the law by court decision to make it applicable to conditions" (the individual judges never, in the history of the State, being wholly unanimous upon the matter). 6 But the opinion of Mr. Justice Sloss just quoted represents the holding that has consistently prevailed in California in actual decision, because, for historical reasons, the law from pioneer days was cast into the mold given to it by the public land question and the riparian rights of the United States. 7 There has been, in all the Western States, an adoption of the common law as the basis of their general system of laws, irrespec- tive of the law of waters. 8 4 Young v. Hinderlider (N. M.), 110 Pac. 1045. 5 It may become quite vague; for example, "The rule given in the Ser- mon on the Mount to distinguish be- tween true and false prophets is the true test by which to determine what the common law is when applied to new conditions. This test is always applied by learned jurists to deter- mine what is good law." (Argument of counsel for the appropriator in Lux v. Haggin, vol. 1093, Sup. Ct. Rec., p. 243.) Compare the statement of Me- Bride, J., in Flinn v. Vaughn (Or.), 106 Pac. 643, that "The American courts substituted common sense for common law." If cases are to be de- cided upon a judge's native inspira- tion, where does the law come inf What would be the use of such ex- pensive law schools, or even of legisla- tures ? 6 See the percolating water cases, infra, Part V, applying the "inap- plicability" principle in favor of re- jecting the common law of percolating waters, and adopting, to suit condi- tions, a system which, it can now be seen, is substantially the same as the law of riparian rights on streams. There the California court brings in the riparian principles de novo on the ground that they are imperatively re- quired by conditions. See, also, San Joaquin Co. v. Fresno Flume Co. '(1910), 158 Cal. 626, 112 Pac. 182. Also cases cited infra, sec. 673, saying that the common law be- tween riparian owners has been "modi- fied" in California. Purely obiter dictum. See infra, sec. 827. 7 Supra, cc. 5, 7. In the pioneer days, the "inapplicability" argument appeared only in the opinions of Chief Justice Murray. He at first opposed the recognition of the doctrine of ap- propriation at all, dissenting in Con- ger v. Weaver, 6 Cal. 548, 65 Am. Dec. 528, 1 Morr. Min. Rep. 594, and when overruled by the rest of the court, acquiesced only on this ground. (Hoffman v. Stone, 7 Cal. 46,- 4 Morr. Min. Rep. 520 ; Crandall v. Woods, 8 Cal. 136, 1 Morr. Min. Rep. 604. See, also, Hill v. King, 8 Cal. 338, 4 Morr. Min. Rep. 533). With the single exception of Chief Justice Murray (whose early death soon removed even that), the California court from its first decisions disclaimed having acted upon that ground, for the reasons we have related, which were of pressing weight in pioneer times and are again to-day coming into prominence in con- nection with the Federal claim to con- trol in pursuance of the policy of conservation. Indeed, in the pioneer California cases, instead of claiming an abroga- tion or modification of the common law, there was some contention that the common law had not been de- parted from even for the public lands. Supra, sec. 79. 8 United States v. Rio Grande etc. Co., 174 U. S. 706, 19 Sup. Ct. Rep. 175,176 Ch. 8. THE STATE IN COLORADO. (3d ed.) 207 B. BASIS OF THE COLOEADO DOCTRINE. (3d ed.) 175. Replies to the Foregoing Objections. In most deci- sions following the Colorado doctrine no answer to the foregoing objections is sought ; 9 they are seldom noticed ; and in the recent decisions of the supreme court of the United States, they are not mentioned. 10 The matter is usually rested upon the independent ground of State sovereignty, inherent in State rights. There is, however, some authority basing the Colorado doctrine on Federal as distinguished from State action, or simply upon Federal in- action, and we shall consider these first, and the State sovereignty basis last. (3d ed.) 176. Basis upon Federal Action. As a direct answer, the Wyoming court has said 11 that the first Wyoming constitution con- tained provisions declaring the waters the property of the State, and rejecting riparian rights. This constitution was ratified by Congress on the admission of Wyoming into the Union ; and thereby the United States consented to this system. A similar ratification is also claimed on behalf of Colorado in the briefs in Kansas v. Colorado. But it is said in Lux v. Haggin that this cannot cover the point in States having no such constitutional provisions, 12 nor in those where such provisions rest on subsequent amendment or legislation which never had the express ratification of Congress. Again, it is said that the abrogation of the common law took place in the arid States from their first settlement while still Terri- tories, and thereby was accomplished by the United States itself, since the territorial government is a mere agency of the United States. 13 But when the basis for the Colorado doctrine is sought in Federal action, it is usually rested upon the act of 1866 and the Desert Land Act of 1877. 14 On behalf of the Colorado doctrine, it has been argued that the acts of 1866 and 1877 were an irrevocable surrender by the United States of its proprietorship in the waters 770, 43 L. Ed. 1136. (See 8 Cyc. 12 Lux v. Haggin, 69 Cal. 255, at 375; 6 Am. & Eng. Ency. of Law, 352, 10 Pac. 674. 13 Boquillas etc. Co. v. Curtis. 11 9 See quotations above. Ari ^ g9 p 5Q5 10 Infra, sec. 180 et seq. 11 Farm etc. Co. v. Carpenter, 9 !* For the history of these acts, Wyo. 110, 87 Am. St. Rep. 918, 61 see supra, chapters 5 and 6. Pac. 258, 50 L. K. A. 747. 208 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 176 to the State. In a New Mexico case 15 it is said: "The riparian rights of the United States were surrendered in 1866. Rev. Stats., sec. 2339." And as to this: "It is claimed that this statute was ^a grant by the Federal government to the people of the State of the waters on the public domain. " 16 'It has, somewhat differently, been said that, whatever might be the relation of these acts to the proprietorship of the United States, yet it was a complete and irrevocable surrender of political control to the State. In United States v. Rio Grande Dam & Irr. Co., 17 Mr. Justice Brewer, in speaking of the act of 1866, the Desert Land Act of 1877, and the Right of Way Act of March 3, 1891, 18 says: 19 "In reference to all these cases of purely local interest the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention to the common-law rule, which permitted the appropriation of those waters for legitimate industries." In a Wyoming case it is said: 20 "If any consent of the general government was primarily 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 quoted and are too well understood to require a restatement at this time at the expense of unduly extend- ing this opinion." As in the case last quoted, the reference to these Federal statutes is usually made in the desert States, for a much broader pur- pose then that for which the California and similar courts refer to them. , The purport of this new construction may be summed up as follows : That by the acts of 1866 and 1877 Congress irrevocably declared that rights in waters should be a matter of local law, for each jurisdiction to declare for itself, and that the public domain would be disposed of in subordination to such local system. If the local system ignore Federal proprietorship in the waters and ignore riparian rights, then such is the system sanctioned by the Federal government, and as such is consequently, by Federal action, binding on the government's grantees of land who would otherwise 15 United States v. Rio Grande " 4 T U -^ ^V 9 Sup ' Ct ' *** gtm & Irr. Co, 9 N. M. 303, 51 Pa, 770, ^U*^ ^ 19 At page 706. l Crawford v. Hathaway, 60 Neb. 20 Farm etc. Co. v. Carpenter, 9 754, 84 N. W. 273, denying the Wyo. 110, 87 Am. St. Rep. 918, 61 validity of the contention. p a c. 258, 50 L. E. A. 747. 176 Ch. 8. THE STATE IN COLORADO. (3d ed.) 209 have riparian rights ; and that this Federal position is confirmed by the subsequent congressional enactments. 21 A collection of Federal enactments in that regard is given in the collection of Federal stat- utes upon a later page. 22 Again, irrespective of the rights of the United States itself, the Federal acts have been declared to be aimed directly against ripa- rian rights of private parties, by Congress itself, and even as to private land patented before diversion by appropriators. A late case says: " Congress itself has by legislation, in effect, declared that the common-law doctrine does not apply to the waters of the non-navigable streams upon the public lands in the arid portions of the Western States and Territories," etc. 23 In one case, for example, 24 these statutes are referred to as a declaration on the part of the United States of its intention never (even if it has the power) to grant riparian rights to any person; but always to re- serve the waters from the land grants. 25 The Oregon court has recently, as a matter of construction of the Desert Land Act of 1877, departed from its previous rulings following the California doctrine, and adopted a rule very similar to that of Colorado, holding that as to all land titles acquired since that act, riparian rights are abolished by Congress by the proviso in the act that waters shall remain free for appropriation by the public; that the Federal government, for itself and its subsequent patentees, thereby surrendered its water-rights, an executed irrevo- cable dedication to those of the public who might thereafter appro- priate 'the water; and this has been said by the supreme court of the United States to rest upon plausible grounds. 1 This construc- tion of the Desert Land Act we have already considered elsewhere. 2 It meets the objection that the State cannot legislate for the dis- posal of the public lands, by saying that there is no necessity for 21 See article by Judge Hunt of natural construction of sections 2339 Montana, in 17 Yale Law Journal, and 2340." Atkinson v. Washington 585. Irr. Co., 44 Wash. 75, 120 Am. St. 22 Infra sec 1429. Re P- 978 > ^ Pac - 1123 - See State Af^r,;v,<- n ex rel - Liberty Lake etc. Co. v. Su- ,/? Van ?>*%,!% * dm 8 ht Sun Co " perior Court, 47 Wash. 310, 91 Pac. (Alaska), 1(7 Fed. 90. fis 24 Tynon v. Despain, 22 Colo. 240, 43 Pac 1039 Boqmllas etc. Co. v. Curtis, 213 25 Referring to Tynon v. Despain, U. S. 339 29 Sup. Ct. Eep. 494, 53 supra, the Washington court says: L - Ed - 822 - "But this, it seems to us, is an un- 2 Supra, sees. 128-130. Water Rights 14 210 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 177 it to do so, as Congress already has taken the desired action. 3 It should be noted that this construction of the Desert Land Act has not been expressly taken until this case; and Congress has only in a limited instance expressly and explicitly enacted in words what the Oregon court infers. This instance is in an act of Con- gress 4 expressly reserving out of patents and denying to patentees any riparian rights on lands granted in the Black Hills Forest Reserves, which has not yet been under judicial consideration. These arguments base the Colorado doctrine upon affirmative Federal action. (3d ed.) 177. Basis upon Absence of Federal Action. There is. in a related branch of the law of waters, namely, the law of accretion and boundaries, a well-settled rule that, in the absence of express Federal provision as to the effect of patents bounding on streams, the local law governs as to whether the boundary carries to the middle of the stream, and as to whether it includes islands in the stream, or similar matters. 5 In a case involving title to an island in a stream in Nebraska, the supreme court of the United States said: 6 "The decision of the supreme court of the State was that the owner of lands bordering on a river owns to the center of the channel, and takes title to any small bodies of land on his side of the channel that have not been surveyed or sold by the govern- ment. It is the settled rule that the question of the title of a ripa- rian owner is one of local law. In Hardin v. Jordan, 7 the matter was discussed at some length, the authorities cited, and the conclu- sion thus stated by Mr. Justice Bradley, delivering the opinion of the court: 8 'In our judgment the grants of the governments for lands bounded on streams and other waters, without any reserva- tion or restriction of terms, are to be construed as to their effect according to the law of the State in which the lands lie.' ' This is a well-settled rule of Federal conveyancing which, as a new matter, may be applicable here, although this line of author- 3 "True, it cannot by legislation de- v. Porter, 51 Or. 318, 95 Pac. 732, 98 termine for any State, after its admis- Pac. 1083, 102 Pac. 728. sion, what the local laws relative to 4 A. C. June 11, 1906, 34 Stat. 234. riparian rights shall be; but the gen- 5 Infra, sec. 897 et seq. eral government, in dealing with its 6 Whitaker v. McBride, 197 U. S. public lands, may provide for their 510, 25 Sup. Ct. Rep. 530, 49 L. Erl. transfer as might any other landed 857. proprietor, and make such reservations ? 140 U. S. 371, 11 Sup. Ct. Rep. therefrom by grant, dedication or 808, 838, 35 L. Ed. 428. otherwise as it may see fit." Hough 8 Page 384. 178 Ck. 8. THE STATE IN COLORADO. (3d ed.) 211 ities has never found its way into decision upon the present sub- ject until, within the last year, it was brought in by a decision of the supreme court of the United States specifically applying it to diversions of water from a riparian proprietor. 9 Such decision does not affect the rights of the land (if any) while in the United States ; it allows the State to subtract the water only when it is passing from the United States to the patentee, the State acting as a kind of agent of the United States to specify the force of patents which themselves are silent. It would seem to say that the right to unappropriated waters on public lands, and ulti- mate control thereof, is in the United States ; that the United States has not expressly reserved them out of land patents; that until Congress explicitly expresses a contrary intention in its patents, the local law governs the effect of the patent as concerns water- rights as well as everything else concerning the land. Besides be- ing a departure from the historical view (in that it permits the local law to say that the pioneers were not trespassers and that they had rights against patentees by force of local law), it also has the unsatisfactory result that when, under it, the local law refuses riparian rights to patentees, rights in waters on private pat- ented land remain, until appropriated, in the United States equally with waters on public lands ; a kind of dual ownership of the pri- vate estate shared in by the United States. 10 It would result in a power in Congress to legislate in Colorado even for unused waters on private land, since they would, under this theory, be reserved to the United States as much as unappropriated water on public land. (3d ed.) 178. Basis upon State Sovereignty Alone. But the prevail- ing attitude under the Colorado doctrine to-day wholly passes by any question of Federal proprietorship, authorization or consent, and *> Los Angeles etc. Co. v. Los 10 "It has never been the policy of Angeles (1910) 217 IT S 217, 30 the Unitec i states to possess interests Sup. Ct. Rep. 452, 54 L. Ed. 736, af- , 1o , . ... firming S. C., 152 Cal. 645, 93 Pac. in land m conne ction with mdi- 869, 1135; a case in which the su- viduals." Moore v. Smaw, 17 Cal. 199, preme court of California had itself at 226, 79 Am. Dec. 123, 12 Morr. applied it to uphold the "pueblo M in. Rep. 418, holding that there is right of the citv of Los Angeles, , .. against a riparian' owner. See supra, (generally) no reservation to the Bee. 68. United States of mines out of a pat- See, also. Snvder v. Colorado etc. ent. Co. (C. C. A., Colo.), 181 Fed. 62. 212 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 179 regards all questions as resting wholly upon the sovereignty of the State as lawmaker, having power to declare or change the law within the State. The State decisions to this effect have already been referred to at length and need not be here repeated. 11 In a recent case in the Federal court for Washington (whose State court rejects this doctrine) it was held that the government on admitting a State into the Union relinquishes its control of the disposition of the waters of the State, except in so far as the regu- lation of commerce is concerned, and it was said that if act of Congress interferes with State law, the act of Congress is invalid. 12 The Secretary of the Interior, Mr. Ballinger, in his report for 1909, said: "If the Federal government desires to exercise control or supervision over water-power development on the public domain, it can only do so by limitations imposed upon the disposal of power and reservoir sites upon the public lands, the waters of the streams being subject to State jurisdiction in their appropriation and bene- ficial use. ' ' 13 Being approved by the supreme court of the United States as below considered, this must be taken as a permissible doctrine to-day. (3d ed.) 179. Some Other Arguments. Incidentally, other arguments may be noticed. When the general adoption of the common law in all the Western States is referred to, it is replied that the adop- tion of the common law, if it included the sanction of riparian rights, is subject to an implied reseryation to the legislature to revoke the recognition thereof. 14 The " argumentum ad hominem" is also not lacking. 15 And in some quarters it is customary to-day to speak disparagingly 11 Supra, sec. 168 et seq. Grande River by treaty between the 12 United States v. Hanson (Wash. United States and Mexico may be "an 1909), 167 Fed. 881. Likewise appropriation by the highest au- United States v. Burley (Idaho, thority." 39 Land Dec. 105, at 108. 1909), 172 Fed. 615. " Boquillas etc. Co. v. Curtis, 11 13 However, he 'then took the posi- Ariz. 128, 89 Pac. 504. tion that the United States should re- i 5 "The California decisions cited capture jurisdiction by purchase from for appellants may no longer be con- the citizen ; that is, require the owner sidered good law even in the State of water-rights under State law to in which they were rendered. In the convey them to the United States, so recent case of Kansas v. Colorado, as to remove them from the State before the supreme court of the control. Still later the Interior De- United States, Congressman Needham partment threw out a suggestion that testified .... that there has been a a withdrawal of waters of the Rio departure from the principles laid 180 Ch. 8. THE STATE IN COLORADO. (3d ed.) 213 of "the old argument that supports 'vested rights,' ( " even though the constitution so demands. Finally, the stand is taken that the rule of the arid States is now one of property, upon which rights of the highest value have become established, and, right or wrong, must stand as a rule of property. 16 Correspondingly, the Washington court refused to re- open the correctness of its decisions following the California doc- trine, also on this ground. 17 The Nevada court (in the case above cited) also suggested that the statute of limitations would long ago have run against the riparian claimants. The idea here is entirely similar to that "silent acquiescence" which was relied on in the original California cases establishing appropriation ; such consent of the United States it being necessary to presume in order to pro- tect private rights that have grown up to a great value; and so in Clark v. Nash, 18 it is said that on account of the large property interests that have grown up under the Colorado system, it must be upheld. A recent Colorado writer says: 19 "In all of the arid States following the ' Colorado system, ' and sustaining the doctrine of appropriation as against the common-law doctrine of riparian rights, the law has become well settled, and litigants are not in- clined to raise nor the courts to listen to any other contention. Its beneficent results have now been demonstrated by more than thirty years of continuous practice, and the property interests that have developed under it now amount in value to hundreds of millions of dollars." (3d ed.) 180. Views of the Supreme Court of the United States First Period. The decisions of the supreme court of the United States up to Sturr v. Beck had been based upon the California view, since that was the historical view, and the opinions were either given by Mr. Justice Field, who had been influential in shaping the law down in Lux v. Haggin, because at ing the statement made in the quota- that time the value of water was not tion, see supra, sec. 116. realized; that the decision has been 16 Twaddle v. Winters, 29 Neb. 88, practically reversed by the same court 85 Pac. 280, 89 Pac. 289 ; Sternberger on subsequent occasions." Twaddle v. Seaton etc. Co. (1909), 45 Colo. 401, v. Winters, 29 Nev. 88, 85 Pac. 280, 102 Pac. 168. 89 Pac. 289. The counsel who had as- 17 Nesalhous v. Walker, 45 Wash. serted the California doctrine was ad- 621, 88 Pac. 1032. judged in contempt of court in an- 18 198 U. S. 361, 25 Sup. Ct. Rep. other case just prior to this decision 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. for some expressions used. Concern- 19 Mills' Irrigation Manual. 214 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 180 as Chief Justice of California, or were based by other justices on his opinions. They deraigned the rights of an appropriator from the proprietary rights of the United States as riparian proprietor of the public lands, under the Federal policy of "free develop- ment" of the public domain. In Atchison v. Peterson 20 in the course of the opinion it is observed that "the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship in respect to the waters of those streams" meaning the streams on the public lands, the waters of which were freely appropriated and used under the customs obtaining among miners sanctioned by Congress in the act of 1866, but which did not extend to waters on private land. In Basey v. Gallagher 21 the question, as stated by the court, was whether a right to running waters on public land of the United States for the purposes of irrigation could be acquired by prior ap- propriation, as against parties not having the title of the govern- ment, and the court held that it could. But the question of ripa- rian rights was not in the case, and the court said that: "Neither party has any title from the United States. No question as to the rights of riparian proprietors can, therefore, arise. It will be time enough to consider those rights when either of the parties has obtained a patent from the government." In Sturr v. Beck 22 the question as to the rights of the riparian proprietor as against an appropriator of the water did arise, and was determined by the court. In that case it appeared that the landowner had not di- verted the water himself; but the court unanimously held that his patent (by relation back to the date of his homestead filing) pre- vailed over the water appropriation initiated subsequent to the filing upon the land. The Chief Justice, in delivering the opinion of the court, after referring to the act of Congress of July 26, 1866, 23 and the amendatory act of 1870, and quoting from the opinion in Atchison v. Peterson, supra, said: "When, however, the government ceases to be the sole proprietor, the right of the ripa- rian owner attaches, and cannot be subsequently invaded. As the riparian owner has the right to have the water flow ut currere sole- bat, undiminished except by reasonable consumption of upper pro- 20 87 U. S. 507, 22 L. Ed. 414, 1 22 133 u. S. 541, 10 Sup. Ct. Rep. Morr. Min. Rep. 583. 350, 33 L. Ed. 761. 21 20 Wall. (87 U. S.) 670, 22 L. 23 Rev. Stats., sec. 2339. Ed. 452, 1 Morr. Min. Rep. 683. 181 Ch. 8. THE STATE IN COLORADO. (3d ed.) 215 prietors, and no subsequent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy with intent to ap- propriate the land should have the same effect." And after qu,ot- ing certain sections of the Civil Code of Dakota, enacting the law of appropriation in the usual form, and setting out the local custom of diverting and appropriating the waters on public land for the purpose of irrigation, he concluded that the question was "whether, as against Sturr [the appropriator] , his . [the land- owner's] lawful occupancy under settlement and entry was not a prior appropriation, which Sturr could not displace. We have no doubt it was, and agree with the brief and comprehensive opinion of the supreme court to that effect. ' ' 24 This line of decisions deraigns the rights of the appropriator from the United States, and its theory is based upon the proprietary rights of the United States as landowner of the public lands and of its land grantees as its successor in interest. We have set forth this line of decisions, or the "public domain" stage, in the first historical chapter. (3d ed.) 181. Same Second Period. But the decisions since Sturr v. Beck have shown a clear determination to uphold the Colorado doctrine in States that have adopted it. The first step in this direc- tion was based upon the new construction, above stated, of the early Federal statutes. From United States v. Rio Grande etc. Co. 1 we have already quoted to this effect. But a limitation was at the same time stated, which points to the California doctrine. "Al- though this power of changing the common-law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of spe- cific authority from Congress a State cannot by its legislation destroy the right of the United States, as the owner of lands bor- dering on a stream, to the continued flow of its waters"; adding at least as far as may be necessary for the beneficial uses of the government property, and adding a second limitation where the State change of the common law interferes with the navi- 24 See Benton v. Johncox, 17 Wash. 1 174 U. S. 690. 19 Sup. Ct. Bep. 277, 61 Am. St. Rep. 912, 49 Pac. 770, 43 L. Ed. 1136. 498, 39 L. R. A. 107, discussing this line of the decisions. 216 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 181 gability of a navigable stream. In Gutierres v. Albuquerque etc. Co. 2 the same view, jesting on construction of the early Fed- eral statutes, was taken. Counsel for appellant had, in their brief, brought up the question of the relation of appropriators to the State or to the United States, quoting Lux v. Haggin, and in this connection the following passage may be of importance. 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 legis- lation of Congress, and therefore void. These propositions natur- ally admit of consideration together. The argument in support of the first proposition proceeds upon the hypothesis that the waters affected by the statute are public waters, the property, not of the Territory or of private individuals, but of the United States ; that by the statute private individuals, or corporations, for their mere pecuniary profit, are permitted to acquire the unappropriated por- tion of such public waters, in violation of the right of the United States to control and dispose of its own property wheresoever sit- uated. Assuming that the appellants are entitled to urge the ob- jection referred to, we think, in view of the legislation of Congress on the subject of the appropriation of water on the public domain, particularly referred to in the opinion of this court in United States v. Rio Grande Dam & Irr. Co., 3 the objection is devoid of merit. As stated in the opinion just referred to, by the act of July 26, 1866, 4 Congress recognized, as respects the public domain, 'so far as the United States are concerned, the validity of the local cus- toms, laws, and decisions of courts in respect to the appropriation of water. ' ' ' But in this case the court takes pains to point out that the rights of riparian proprietors were not involved, and again place a limit on its decision which resembles the California doctrine. This pas- sage is quoted in the note, 5 and seems an express reservation that 2 188 U. S. 545, 23 Sup. Ct. Rep. 5 The court says: "Of course, as 338, 47 L. Ed. 588. held in the Rio Grande case, even a 3 174 U. S. 704-706, 19 Sup. Ct. State, as respects streams within its Rep. 770, 43 L. Ed. 1142, 1143. borders, in the absence of specific au- 4 14 Stats, at Large, 253, c. 262, thority from Congress, 'cannot, by its sec. 9; Rev. Stats. 2339; U. S. Comp. legislation, destroy the right of the Stats. 1901, p. 1437. United States, as the owner of lands 181 Ch.8. THE STATE IN COLORADO. (3d ed.) 217 the decision shall not affect the question of riparian rights, and it reasserts the proprietary rights of the United States, at least so far as concerns government reservations, which exception has been actually enforced with regard to waters flowing through an Indian reservation. There are two other decisions of the supreme court of the United States also basing the Colorado view on a construction of the early Federal statutes. Referring to these statutes it is said : ' ' The gov- ernment enacts that anyone may go upon its public lands for the purpose of procuring water, digging ditches for canals, etc., and when rights have become vested and accrued which are recognized and acknowledged by the local customs, laws, and decisions of courts, such rights are acknowledged and confirmed," 7 and that hence the validity of appropriation is by these Federal statutes made a question of State law. 8 These decisions, consequently, still recognize the proprietary rights of the United States as involved in determining the rights of an appropriator ; but consider that Congress itself has legislated inimically to riparian rights. They also either uphold a latent power in Congress to-day, or one previously existing at the basis of the subject. bordering on a stream, to the con- 4 of section 17 of the act 'That no tinued flow of its waters; so far, at water shall be diverted, if it will least, as may be necessary for the interfere with the reasonable require- beneficial uses of the government ments of any person or persons using property'; and the power of a State or requiring the same when so di- over navigable streams and their verted' So, also, in section 25, it is tributaries is further limited by the declared 'that no incorporation of any superior power of the general govern- company or companies shall interfere ment to secure the uninterrupted navi- with the water-rights of any individual gability of all navigable streams or company acquired prior to the pas- within the limits of the United States. sage of this act.' The -finding of the Necessarily, these limitations are court below that 'surplus' water ex- equally applicable in restraint of isted negates the idea that any legiti- the legislative branch of a territorial mate appropriation of water which government, controlled, as is such can be made by the appellee can in body, by Congress. If we assume any wise violate the rights of others." that a restriction on the power of a 6 Winters v. United States, 207 U. Territory similar to that first stated S. 564, 28 Sup. Ct. Rep. 208, 52 L. prevails in favor of private owners of Ed. 340. Infra, sec. 207. lands along a running stream, the act 7 Bear Lake etc. Co. v. Garland, in question clearly is not violative of 164 U. S. 1, 17 Sup. Ct. Rep. 7, 41 Ix such rights, for the same does not at- Ed. 327. Italics ours. tempt to authorize an infringement of 8 Telluride etc. Co. v. Rio Grande them. The water which it is provided etc. Co., 175 U. S. 639, 20 Sup. Ct. may be appropriated is 'surplus' water, Rep. 245. 44 L. Ed. 305, 187 U. S. 579, of any stream, lake, or spring, and it 23 Sup. Ct. Rep. 178, 47 L. Ed. 307. is specifically provided in subdivision 218 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 182 (3d ed.) 182. Same Third Period. The latest cases in this highest tribunal look to the support of the Colorado doctrine, not as a matter of construction of the Federal statutes (as in the foregoing decisions), but adopting the full contention of the cases at large in the arid States, passing by these statutes and the question of Fed- eral proprietorship, and regarding State control over the law of waters as a power inherent in its sovereignty, whether the waters now or in the past flowed over public lands or not. To this effect is Clark v. Nash, saying (by way of dictum only, since a point in the law of eminent domain alone was decided) : "The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous States of the West that they are in the States of the East. These rights have been altered by many of the Wes'tern States by their constitutions and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the States of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and prosperity of those States, arising from mining and the cultivation of an otherwise valueless soil, by means of irrigation. This court must recognize the difference of climate and soil, which render necessary these different laws of the States so situated. ' ' 9 To the same effect, treating the question as one of sovereignty of the State as lawmaker and passing by any consideration of the position of the United States as landowner ; regarding the question, in other words, as one of sovereignty and not of proprietorship, is the opinion in Kansas v. Colorado. 10 This very important deci- sion was given May 13, 1907, Mr. Justice Brewer writing the opinion. In actual decision it held against the Federal claims set up in behalf of the Reclamation Service, holding that the rights of sovereignty of the United States with respect to the public domain within States are subordinate to State sovereignty with respect to the law of waters, and rejected the Federal claim as one of sov- ereignty not delegated to it expressly by the Federal constitution, and the Federal government is one of enumerated powers only. Federal rights were considered entirely from the view of sov- 9 Clark v. Nash, 198 U. S. 361, 25 10 206 U. S. 46, 27 Sup. Ct. Rep. Sup. Ct. Rep. 676, 49 L. Ed. 1085, 4 655, 51 L. Ed. 956. Ann. Cas. 1171. 182 Ch. 8. THE STATE IN COLOEADO. (3d ed.) 219 ereignty and as such recognized as to Territories but denied as to States. No reference whatever was made to Federal rights on the ground of proprietorship; Federal rights based on proprietorship aside from sovereignty were given no consideration ; or rather, the dis- tinction at the bottom of Lux v. Haggin, between the United States as landowner on one hand, and lawmaker on the other, was not made a part of the opinion. Viewing the rights of the United States solely from the point of view of sovereignty it was held: "But it is useless to pursue the inquiry further in this direction. Jt is enough for the purpose of this case that each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters It may determine for itself whether the common-law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West, of the ap- propriation of waters for the purposes of irrigation, shall control. Congress cannot enforce either rule upon any State. ' ' Adding that the power of the State to legislate upon waters was an incident to the full sovereignty with which it was admitted into the Union, and that the Federal legislation, after all, was merely a recognition of this lack of jurisdiction. 11 There are, upon related questions, decisions of the supreme court of the United States to the same general effect as Kansas v. Colo- rado. They had not been before applied to this subject, because they were upon matters having a different history, unconnected with the development of the law of the public domain in California up to the act of 1866. 12 11 Referring specially to the proviso may be said, primarily, among the in the National Irrigation Act. See incidents of that equality is the right especially the provisos quoted infra, to make improvements in the rivers, sec. 1429. watercourses and highways situated 12 Such are the cases following Pol- within the State." lard v. Hagan (infra, sec. 898 et Such, also, are the cases regarding seq.) regarding the title to the beds the regulation of wild game. In of streams, and their improvement. Ward v. Race Horse, 163 U. S. 504, For example, a frequently cited case 16 Sup. Ct. Rep. 1076, 41 L. Ed. 244, is Withers v. Buckley, 61 U. S. (20 holding that Wyoming's right to regu- How.) 84, 15 L. Ed. 816, saying: late hunting upon the public lands "Clearly Congress could exact of the prevails over a treaty between the In- new State the surrender of no attri- dians and the United States, even bute . inherent in her character as a though the treaty was made before sovereign independent State or indis- Wyoming's admission, it was said : pensable to her equality with her sis- "The power of all the States to regu- ter States, necessarily implied and late the killing of game within their fuaranteed by the very nature of the borders will not be gainsaid; yet if ederal compact. Obviously, and it the treaty applies to the unoccupied 220 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 183 Aside from the claims of the Reclamation Service, the court in Kansas v. Colorado refused to decide the issue on the law of waters. Kansas, as a State where the law of riparian rights was in force, sought to enjoin Colorado from itself diverting, and permitting private appropriators to divert, in Colorado, the waters of the Arkansas River, which flowed from Colorado into Kansas, and the decision as between the two States was merely that Kansas had not shown such irreparable damage as is requisite for injunction; thereby deciding a principle of equity between States ("equitable apportionment of benefits between States"), as transcending the question of the validity of the Colorado system of water laws. 13 (3d ed.) 183. Same. Since Kansas v. Colorado there have been a number of decisions in the supreme court of the United States bearing upon the question. In Hudson W. Co. v. McCarter a State statute prohibiting the diversion of a stream to a point outside the State was upheld on the ground that the power of a State to legislate upon waters, within limits, outweighs, under the police power, all property rights therein. The case, however, arose in New Jersey and Mr. Justice Holmes said: "The problems of irrigation have no place here." 14 A later case in the supreme court of the United States has de- cided unequivocally in support of the Colorado doctrine, in actual decision, against a riparian proprietor. In Boquillas etc. Co. v. land of the United States in the State None of these lines of cases had of Wyoming, that State .would be be- that peculiar origin which shaped the reft of such power, since every iso- theory of the California doctrine of lated piece of land belonging to the water law; that is, the controlling United States as a private owner, so force of the contention made against long as it continued to be unoccupied the California pioneers that they were land, would be exempt in this regard trespassers upon the public lands, from the authority of the State. (Supra, sees. 83, 88.) Wyoming, then, will have been ad- is Indeed, in thus looking to an mitted into the Union, not as an equal "equitable apportionment" between member, but as one shorn of a legis- the two States, it might be said that lative power vested in all the other the law actually applied is the same as States of the Union, a power resulting under the common law of riparian from the fact of statehood and inci- rights, since an equitable apportion- dent to its plenary existence." ment, as distinguished from exclusive Such, also, is Ohio Oil Co. v. In- prior taking, is the common-law rule, diana, 177 U. S. 190, 20 Sup. Ct. Rep. Infra, sec. 751, apportionment. 576, 44 L. Ed. 729, 20 Morr. Min. 14 Hudson W. Co. v. McCarter, 209 Rep. 466, holding that the State may U. S. 349, 28 Sup. Ct. Rep. 529, 52 regulate the use of percolating water. L. Ed. 828, 14 Ann. Cas. 560. That Lindsley v. Natural Carbonic etc. Co. is, problems of public land law. (1911), 31 Sup. Ct. Sep. 337. 184 Ch. 8. THE STATE IN COLORADO. (3d ed.) 221 Curtis, in an opinion by Mr. Justice Holmes, 15 it was held unneces- sary to declare how far a State may abrogate the common law of riparian rights after once established, but it was firmly decided that it had never become established in Arizona. Being unsuited to conditions there, it was held to have been disregarded from Arizona's first settlement, and hence not adopted by the Arizona statute adopting the common law in general terms. As to such adoption of the common law generally, "It is far from meaning that the patentees of a ranch on the San Pedro are to have the same rights as owners of an estate on the Thames." Having been acted upon from the first settlement, and declared by the terri- torial court, the rejection does not depend 'on the Arizona statute subsequently enacted to that express effect, whether such subse- quent legislation would be otherwise valid or not. The case is an unequivocal decision in support of the Colorado doctrine so far as it affects the rights of riparian proprietors. Although it does not directly deal with the Colorado doctrine as regards the relative rights of the State and the United States, it inferentially also upholds the view that the law of waters even on public lands rests with the State, since, if riparian rights do not exist, the United States has no more right to waters on its lands than other landowners. Another actual decision upholding local law allowing diversion from a riparian owner was rendered in Los Angeles Milling Co. v. Los Angeles, already stated. 16 In Rickey etc. Co. v. Miller etc. Co., 17 involving an interstate stream partly upon public land, the reasoning of Kansas v. Colo- rado was followed up, and it was held that rights thereon depend upon the sovereign will of each State, and that only by the con- current action of both States could rights be recognized beyond the boundary of either one. 18 (3d ed.) 184. Same. These decisions still leave some uncertainty, however. In the matter of riparian proprietors, in both the Boquil- las case and the Los Angeles Milling case special point was made 15 (1909) 213 U. S. 339, 29 Sup. Ct. Rep. 452, 54 L. Ed. 736. See Ct. Rep. 493, 53 L. Ed. 822, on appeal supra, sec. 177. from Arizona (11 Ariz. 128, 89 Pac. " 218 U. S. 258, 31 Sup. Ct. Rep. 505). 11. 16 (1910) 217 U. S. 217, 30 Sup. is Infra, sec. 340 et seq. 222 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 184 of the fact that the riparian owner claimed under a Mexican grant and not under a United States patent, and the court in both cases held that this made it unnecessary to pass upon the rights of Federal patentees. In that regard, Sturr v. Beck 19 was cited but not overruled. 20 Moreover, one recent case expressly declined to pass upon whether riparian rights exist in Montana ; 21 and the Boquillas case carefully avoided saying how far a State statute could abrogate the common law of waters if once in force (having only held that in Arizona it was never in force). They further leave some uncertainty in the question of the rights of the United States as riparian landowner. The Boquillas case, while saying that the State law alone determines the law of waters, yet says that the Oregon case of Hough v. Porter, above considered, was decided "on plausible grounds," which grounds were that riparian rights had been abrogated by Congress and not by the State. 22 Then again, the Los Angeles Milling case, holding the question of private riparian rights to be merely one of con- struction of Federal patents when they are silent as to the water, . might, it would seem, impose no obligation on the United States to remain silent in the future. Moreover, Kansas v. Colorado itself, although the language of the opinion is very strong in upholding the view of the plenary legislative power of a State over waters, as an incident of sovereignty, without resort to (in fact, if need be, in spite of) any Federal statutes, or Federal consent, yet in final decision did not pass upon the effect of the Colorado laws, but left that open to later litigation if Kansas could here- after show sufficient damage. It is not conclusive because it con- sidered the matter as an original one, without historical considera- tion of its origin and development, and because in Winters v. United States 23 the supreme court of the United States, while hold- is 133 U. S. 541, 10 Sup. Ct. Rep. Beck. But these later cases seem to 350, 33 L. Ed. 761. show that the court reserves the ques- 20 In Hough v. Porter, 51 Or. 318, tion regarding Sturr v. Beck. It must 95 Pac. 732, 98 Pac. 1089, 102 Pac. be remembered that Kansas v. Colo- 729, it is said: "This opinion [in rado did not refer to Sturr v. Beck, Kansas v. Colorado] was written by nor to any of the earlier decisions of Mr. Justice Brewer, who was not a that period. member of the court when the case of 21 Winters v. United States, 207 U. Sturr v. Beck was argued and sub- S. 564, 28 Sup. Ct. Rep. 208, 52 L. Ed. mitted, for which reason, although a 340. member of the court when the opin- 22 Supra, sees. 129, 130. ion in the latter case was filed, he 23 207 U. S. 564, 28 Sup. Ct. Rp. took no part in the decision," and it 208, 52 L. Ed. 340. See, also, United is said that the Kansas-Colorado case States v. Burley (C. C. A., Idaho, in effect "brushes aside" Sturr v. 1910), 179 Fed. 1. 185 Ch. 8. THE STATE IN COLOEADO. (3d ed.) 223 ing it unnecessary to decide whether riparian rights exist in Mon- tana, again returned to the reasoning of the California doctrine denying the plenary power of the State. "The power of the gov- ernment to reserve the waters and exempt them from appropriation under the State laws is not denied, and could not be." To this Mr. Justice Brewer, who wrote the opinion in Kansas v. Colorado, was, of course, forced to dissent. And in actual decision this and other recent cases uphold water-rights similar to common-law riparian rights, in the United States, as to waters on Indian reser- vations. 24 In view of these cases, the attitude of the supreme court of the United States is to uphold the Colorado view in any State that has so far adopted it; but these decisions are not yet reconciled with the early ones up to Sturr v. Beck ; and the theory of the law in Lux v. Haggin still remains unanswered. The test will prob- ably come with regard to States which have gone over from one doctrine to the other recently, or which do so hereafter; or in regard to the enforcement of the policy of "conservation of nat- ural resources," should Congress attempt to legislate upon waters in connection with that subject. 25 (3d ed.) 185. Some Inconsistencies and Variations. There are some dicta in the arid States following the California view so far as it holds appropriation to rest in grant from the United States, 1 though 24 Infra, sec. 207. Judge Simeon E. conduct of her public schools with Baldwin (now governor of Connecti- regard to the admission of Japanese cut) finds considerable occasion to therein. The supreme court (and Mr. criticise Kansas v. Colorado in an, Justice Brewer especially) was article in 18 Yale Law Journal, 8. thought to be out of sympathy with It does not appear that Mr. Justice the President's centralization prin- White or Mr. Justice McKenna con- ciples, and the Kansas-Colorado deci- curred in 'the opinion in Kansas v. sion is meant to be in favor of "State Colorado; and it appears (page 118) rights." So far as title questions in- that Mr. Justice Moody did not wholly volve other considerations of pro- concur, prietorship askle from sovereignty, 25 The opinion in Kansas v. Colo- it may be that the historical ground rado was intended to lay down the takes the water question (so far as it position of the supreme court of the is viewed as purely a legal one) out United States toward Mr. Roosevelt's of the "State rights" discussion; al- "New Nationalism," which was then though when Federal control of dis- ;just making its beginning in such mat- tribution of water or power to public ters as his advocacy of Federal con- uses is brought in, that separation trol of insurance, railways, forests and cannot be contended for. (in Kansas v. Colorado) waters; Ms l E. g., Welch v. Garrett, 5 Idaho, attempt to exercise State functions 639, 51 Pac. 405, 19 Morr. Min. Rep. indirectly by the Federal treaty-mak- 193; Le Quime v. Chambers (1908), ing power, coercing California in the 15 Idaho, 405, 98 Pac. 415. 224 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 185 usually it is seen that this leads to difficulty under the Colorado view. Again, there are a few decisions in these jurisdictions applying the California view and enforcing riparian rights. 2 Under a very recent case in Idaho, riparian proprietors have common-law rights of continuous flow which the courts will en- force against a "mere interloper" or diverter who has not com- plied with the legal requirements for securing a valid appropria- tion, or who is only wasting the water. 3 In Colorado, as hereinafter discussed in considering "preferences and pro-rating, ' ' it seems to be the law of the* State court that the common law of riparian rights governs so far as the use of water for domestic purposes is concerned. 4 Again, the very earliest statutes of several of these States contained a provision that all landowners on the banks of a stream have a right to the use of the water. This was probably intended as declaratory of riparian rights, to the same end as the California provision, "The rights 2 Thus, Schwab v. Beam, elsewhere quoted (sees. 366, 367), in the Fed- eral court for Colorado, and the fol- lowing in the Supreme Court of Utah^ saying that after an entry of land by plaintiff's grantors "there could be no appropriation of the water or right of way for the ditch across plaintiff's land without his consent or that of his grantors. The entry of the land by plaintiff was an appropriation of not only the land, but of the water; and any person entering upon the land thereafter became a trespasser." Stalling v. Ferrin, 7 Utah, 477, 27 Pac. 686 (citing Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L. Ed. 761). See, also, Willow Creek Co. v. Michaelson, 21 Utah, 248, 81 Am. St. Rep. 687, 60 Pae. 943, 51 L. R. A. 280. 3 Hutchins'on v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059 (granting relief). See, also, "Sternberger v. Seaton etc. Co. (1909), 45 Colo. 401, 102 Pac. 168, dictum, but refusing re- lief. The Idaho case says: "This court has on several occasions recognized some of the incidental common-law rights of riparian ownership in cases where those rights do not come in con- flict with the rights of appropriators. This was the case in Small v. Harring- ton, 10 Idaho, 499, 79 Pac. 461, and Powell v. Springston Lumber Co., 12 Idaho, 723, 88 Pac. 97, wherein we recognized and sustained the rights of riparian proprietors to employ such means as might be necessary to obtain ingress and egress to and from the waters of navigable streams. In Shephard v. Coeur d'Alene Lumber Co. (1909), 16 Idaho, 293, 101 Pac. 591, it was held that the right of ingress and egress to and from the lands of a riparian owner is a property right, and must be respected, and for the protection of which the courts will afford a remedy But a riparian owner still retains such right to have the waters flow in the natural stream through or by his premises as he may protect in the courts as against per- sons interfering with the natural flow, or who attempted to divert or cut off the same wrongfully and arbitrarily, and without doing so under any right of location, appropriation, diversion or use, and who do not rest their right to do so upon any right of use or appropriation. In other words, a stranger to the use and right of use of such waters for the time being can- not interfere, and, if he does, the riparian owner has his remedy to re- strain and enjoin such interference." Hutchinson v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059. 4 See infra, see. 308. 186 Ch. 8. THE STATE IN COLORADO. (3d ed.) 225 of riparian proprietors are not affected by the provisions of this title. ' ' Such a statute existed in other States, where it is construed as only declaratory of riparian rights, and is held to force the court to follow the California doctrine. 5 On the other hand, the California court has recently used ex- pressions similar to those of the Colorado court as to the question being one of sovereignty, irrespective of public land law, 6 and similar inconsistencies appear occasionally in decisions of the Federal courts in jurisdictions whose State courts have followed the California or historical rule. 7 Moreover, the California legis- lature this year has declared waters the property of the people of the State. The Oregon court has recently, after able consideration, departed from the California rule and taken a stand intermediate between the two doctrines. 8 And, finally, the decisions of the supreme court of the United States have not yet, in all points, chosen between the two theories, although strongly predominating in favor of State power and against common-law riparian rights. (3d ed.) 186. .Conclusion. The Western States are divided into two classes, one basing its theories on the proprietorship of the United States in the public domain, deraigning the right of the appro- priator as a grant from the United States, confining appropriation to waters upon public lands, and recognizing the common law of riparian rights for waters flowing over lands that have become private before a diversion; the other deriving the rights of the appropriator from the State, and recognizing no law of waters 5 Supra, sec. 119.' California tendency to the same effect 6 See Duckworth v. Watsonville W. until the contrary was settled by Co., 150 Cal. 520, 89 Pac. 338; Katz Judge Field in Moore v. Smaw v. Walkinshaw, 141 Cal. 116; Los (supra, sec. 82). Likewise, in Wash- Angeles v. Los Angeles etc. Co., 152 ington, while the State court says Cal. 645, 93 Pac. 869, 1135, the last waters on Federal lands are "utterly saying the whole question of the beyond the power and control of State rights of riparian owners is one of legislatures" (supra, sees. 152-154), local law. Affirmed in 217 U. S. 217 o'n the other hand the Federal court H910). 30 Sup. Ct. Eep. 452, 54 L. for Washington has recently held that Ed. 736. the Federal government, on admitting 7 Appropriator derives his rights a State into the Union, relinquishes from the State of California (die- its control over the disposition of turn). San Diego Co. v. National waters to the State. United States v. City, 74 Fed. 79. In this connection Hanson (Wash. 1909), 167 Fed. 881. there should also be noted the early 8 Supra, sec. 129. Water Eights 15 226 (3ded.) Pt. II. CALIFORNIA- COLORADO DOCTRINES. 186 but that of prior appropriation. The former, the California and historical doctrine, is in force in California, Kansas, Montana, Nebraska (partially), North Dakota, Oklahoma (possibly), Oregon (partially), South Dakota, Texas (partially), and Washington. The latter, the Colorado doctrine, is in force in Alaska, Arizona, Colorado, Idaho, Nebraska (partially), Nevada, New Mexico, Ore- gon (partially), Texas (partially), Utah, and Wyoming. 9 The doctrine of the latter States is that the question is one of local law, becoming such by a construction of the Federal statutes which departs from the history of those statutes but is otherwise possible; or becoming a matter of local law as inhering in State sovereignty regardless of Federal statutes, a position which the courts following the California doctrine have attacked as open to constitutional objections, but which (without considering the ob- jections) finds favor in the most recent decisions of the supreme court of the United States and is found in some recent expressions of the California court itself. The recent decisions of the supreme court of the United States, the great value of property in the arid States relying upon the Colorado doctrine, and the State admin- istrative systems which have become established, leave no doubt that the system has come to stay, so far as it concerns rights be- tween private persons, in any State that has to-day adopted it; but a certain qualified reservation of Federal proprietary rights, so far at least as is necessary to the beneficial uses of government property, and for Indian reservations, is still steadily asserted in the United States supreme court's decisions, and the recent discussion of the policy of conservation has revived the assertion of Federal proprietary right. It is hazardous to express an opinion where the authorities are in such conflict. Three things, however, the writer ventures to say with some confidence: One is that Lux v. Haggin could not have been decided other than it was, without a breach of continuity in the California law. The California doctrine was contained in the principles laid down long before, by Judge Field in Moore v. Smaw and Boggs v. Merced, that the public lands with all accustomed incidents belong to the United States; that the freedom of the public domain is a matter 9 This classification is based upon view, and recent legislation, tend to the decisions of the courts, 'but in a contrary direction, most of the former States the popular 187 Ch. 8. THE STATE IN COLORADO. (3d ed.) 227 resting with Congress, and is for the public domain alone; that the rights of private land, once the land passes out of the public domain, are the same and as secure in California as in any other State of the Union. To Judge Field more than anyone else is this attitude of the California law due. The second is that which of the two theories one shall regard as the correct formula is a matter of the difference between the "historical" and the "logical" methods of legal investigation. The California law is a consistent evolution from the political conditions before the Civil War, when the Federal title was the starting point, and the citizen but a trespasser upon that title; and from that beginning it makes a continuous history. The Colo- rado law, on the other hand, not bound by such a history to a past generation, holds the law open to logical deduction anew from general rules, and does not find a Federal title nor riparian rights in such rules if the State law to-day denies them. So the difference lies between which road one travels in his investigation; the "historical method" will bring him to the Federal title and common-law riparian rights; the "logical method" will leave him instead where both are a matter of local law for each State to declare for itself. It is the latter method which the supreme court of the United States to-day applies, and against it the his- torical method can only say that it has departed from historical precedent. The third is that the Western law of waters is in a state of evolution in which legal formulas, whichever of the two one may adopt as theoretically the right one, are not of greatest impor- tance; for the law will eventually work itself out according to the attitude of the people, whatever way that may finally become set- tled hereafter. While we have endeavored to treat the matter purely as a legal one, yet in reality it is, and always has been, largely shaped by political forces, accommodating itself much to the thought of the times. (3d ed.) 187. Same. Aside from this difference in the present deri- vation of the rights of the appropriator, and in the consequent atti- tude toward riparian rights, the substantive law of appropriation itself is much the same in those jurisdictions which confine it to the public lands as in those that do not. Its characteristics, extent 228 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 187 of right, loss of right, and similar matters, are founded upon the early California decisions made for waters on the public domain ; California being the spring from which this peculiar feature of Western law has come. The decisions of that court in the earlier days seldom failed to be quoted in the other Western States in this connection, and its early cases had everywhere a persuasive force that closely approached authority. The substantive law of appro- priation is largely the same under both systems, although in some States chiefly, the desert States recent statutory codes of admin- istrative law have been added that are absent in some of the rest (although now existing in most of them, also). 188-196. (Blank numbers.) S 197 Ch. 9. WATERS ON PUBLIC LAND. (3d ed.) 229 CHAPTER 9. APPROPRIATIONS ON PUBLIC LAND. A. UNEESEEVED PUBLIC LAND. 197. Extent of public land area. 198. The first appropriations were all on public land. 199. State lands. 200. Presumption that lands are public. 201. Abandoned or forfeited claims to public land. 202. Eights of way and reservoir sites on unreserved public land. 203. Federal Eight of Way Acts* on unreserved public land. B. EESEBVED PUBLIC LAND. 204. New governmental policy. 205. Extent of the reserved domain. 206. Authority to make withdrawals. 207. Military and Indian reservations Waters on. 208. Eights of way over military and Indian reservations. 209. Forest domain Extent of. 210. Waters upon forest reserves. 211. Eights of way and reservoir sites upon forest reserves. 212-220. (Blank numbers.) A. UNEESEEVED PUBLIC LAND. (3d ed.) 197. Extent of the Public Land Area. By the Louisiana Purchase, Gadsden Purchase, the Treaty of Guadalupe Hidalgo and others, the United States, by purchase or conquest, became the owner of the land constituting that part of the country now known as the Western States. 1 Public land still constitutes about one-third of the geographical area of the country, 1 * being the greater part of the Western area extending from the one hundredth meridian to the Pacific Ocean. Its area is coextensive with States. Arizona, Idaho, Nevada, Utah, Wyoming, for example, are mostly public land. California is the most settled, and remains one-half public land (mostly nonagricul- tural). Following are given tables, not wholly complete, from lack of figures for reserved land other than forest. With all in- cluded, the average public land area will probably figure between 1 Supra, see. 66 et seq. la Willey v. Decker, 11 Wyo. 496, 100 Am. St. Eep. 939, 73 Pac. 210. 230 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 197 fifty and fifty-five per cent of the area of the States and Territories in the list. Area of Public Land in Percentage of State or Territory. Unreserved. Forest Re- Total. serves. Alaska 97% 7% about 99.9% Arizona 57% 21% 78% California 24% 28% 52% Colorado 33% 23% 56% Idaho 46% 37% 83% Kansas 3% .6% .9% Montana 38% 21% 59% Nebraska 4% 1% 5% Nevada 80% 7% 87% New Mexico 46% 14% 60% North Dakota 3% .03% 3.03% Oklahoma 01% .1% .11% Oregon 28% 26% 54% South Dakota 9% 3% 12% Utah 66% 14% 80% Washington 7% 27% 34% Wyoming 55% 14% 69% The following shows the areas in acres, giving, first, the area of the State or Territory; second, the unreserved and unappropri- ated land thereof, and third, the forest reserve area thereof : Alaska, 378,165,760, 368,014,735, 26,761,626; Arizona, 72,931,840, 41,491,- 369, 15,214,745; California, 101,310,080, 24,864,884, 27,968,510; Colorado, 66,526,720, 21,726,192, 15,491,791; Idaho, 53,960,320, 24,743,804, 19,963,171; Kansas, 52,581,120, 137,180, 302,387; Montana, 93,806,080, 36,015,943, 19,474,696; Nebraska, 49,612,800, 1,879,486, 556,072 ; Nevada, 70,841,600, 56,474,688, 5,109,415 ; New Mexico, 78,485,760, 36,454,692, 11,140,123; North Dakota, 45,335,- 680, 1,410,225, 13,940; Oklahoma, 44,836,480, 5,007, 60,800; Ore- gon, 61,887,360, 17,580,573, 15,920,822; South Dakota, 49,673,600, 4,562,804, 1,294,440; Utah, 54,393,600, 35,955,554, 7,411,157; Washington, 44,241,280, 3,196,059, 12,007,340; Wyoming, 62,664,- 960, 34,575,159, 8,941,681. These areas are from official sources, and the percentage table is figured from the areas. Only States and Territories covered by this book are given. 2 2 These acreage figures are from the re- The percentages are figured from the port for 1910 of the Commissioner of the acreage table. As to the Alaska percent- General Land Office. The Alaska areas age, the same thing applies as noted under for unreserved land and forest reserves the acreage table. The amount of private probably were figured at different dates, land in Alaska is in any event of insigni- and probably a deduction should be made ficant extent. of a few million acres from the unreserved In addition to the foregoing figures there area, representing transfers to forest re- are extensive areas in Indian, military and serves, since, as the figures stand, the similar reservations (especially in Okla- total of the last two columns would exceed homa and the Dakptas), and in power- the area of the territory given in the first site and conservation withdrawals. On column. July 1, 1909, the total unreserved and un- 198 Ch. 9. WATERS ON PUBLIC LAND. (3d ed.) 231 The theory of the law has been that the Federal government's duty was that of a trustee to dispose of these lands for the upbuild- ing of the States constituted upon them. 3 The laws were framed to secure development and ownership by the citizens, to accomplish the growth of the States. Upon this idea were -based the pre- emption, homestead, mining, and water laws, under which most of the advance of the West has been made. The land laws are beyond the scope of this book, and are here mentioned to show that the same idea founds them as has founded the water law of the public domain. (3d ed.) 198. The First Appropriations were All on Public Land. When the miners arrived in California, but little of the land com- posing 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 enter thereon and appropriate water was first presumed from acquiescence therein. 4 It is now expressly granted by the act of 1866 (sections 2339 and 2340 of the Revised Statutes of the United States). 5 "For a long period the general government stood silently by and allowed its 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 applicable to the peculiar situation ; and appropriated public land was 731,354,081 public domain exclusive of Alaska. But acres: the total forest reserves on Decem- these figures are of the year 1905, and it ber 31, 1909, were 194,496,594 acres, and would require a search of the various an- in 1906 there were 838,088 acres in mill- nual departmental reports to bring the tary reservations; a total of 881,688,763 lists down to date. The report of the acres of public land, exclusive of Indian, Secretary of the Interior for the year reclamation, and other special reservations. ending June 30, 1910, gives statistics of On June 30, 1910, there were 1,500,000 unappropriated and unreserved lands acres in 149 power-site reserves. (page 11); Carey Act segregations (page .\ir. Philip P. Wells, counsel for the 34) ; national parks and national monu- National Conservation Association, gives ments (pages 56, 64, 98) ; enlarged home- the following information: stead designations (page 93); coal land Unfortunately there does not appear to withdrawals and classifications (page 94) ; be any single publication where statistics oil land, phosphate and power-site with- of all public land areas have been brought drawals (pages 94, 95, 96) ; and of bird together. The appendix to the Report of reserves (page 99). the Public Lands Commission, transmitted ._, . , to Congress March 2, 1905 (58th Cong., 3 The grantor of the public lands, 3d Sess. 8. D. 189), page 139 (table l), the national government, was to hold gives the area of the original public domain fhpsp la.mls in trust fnr thp rmhlip by States; page 284 (table 25), gives the Kls . "? " l . e P ul ?, national parks by States; page 284 (table to be acquired by any qualified citi- 26) gives the United States naval, mili- zen thereof on compliance with the tary, light-house and other reservations, all rnleg prescribed." Hough V. Porter, but seven of them being lumped and esti- _.. *o 10 or T> -oo no r> inoo mated; pages 285-307 ftable 27) give the 51 Or. 318, 95 Pac. l32, 98 Pac. 1083, Indian Reservations by States; pages 308- 102 Pac. 728. 359 (table 28) give unappropriated and 4 g uv ra sec 89 unreserved lands by States and counties; KB nJi IKK table 29 summarize* the disposal of the bupra, sees. 94, 155. 232 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 198 when there were contests between hostile claimants; the courts were compelled to decide them without reference to the ownership of the government, as it was not urged or presented. In this way from 1849 to 1866 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 government. The acts of 1866 and 1870 were intended merely to expressly recognize and ratify the system. " 6 It was for many years assumed that the.appropriator always seeks to make an ap- propriation on public lands only. Until the recent policy of con- servation, no question was any longer raised to his right to do so. 7 Appropriation of water on desert lands under the act of 1877 8 is upon condition 9 that "all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated." It Cave v. Tyler, 133 Cal. 566, 65 Pac. 1089; similarly, Broder v. Na- toma Water Co., 101 U. S. 274, 25 L. Ed. 790, 5 Morr. Min. Rep. 33 ; Os- good v. Eldorado Water Co., 56 Cal. 571, 5 Morr. Min. Rep. 37. 7 The provisions of the statutes of 1866 and 1870 referred to are those now incorporated in sections 2339 and 2340, Revised Statutes, and are as follows : Revised Statutes, section 2339: "Whenever, by priority of possession, rights to the use of water for min- ing, agricultural, manufacturing, or other purposes, have vested and ac- crued, and the same are recognized and acknowledged by the local cus- toms, laws and 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 con- firmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or dam- age, shall be liable to the party in- jured for such injury or damages." Revised Statutes, section 2340 : "All patents granted, or pre-emption or homesteads allowed, shall be sub- ject to any vested and accrued water- rights, or rights to ditches and reser- voirs used in connection with such water-rights, as may have been ac- quired under or recognized by the preceding section." "From the beginning, in the arid regions of the Western States and Territories, it has been the custom of the people to divert from their natural channels the waters of the streams upon the public lands, and appropriate the same to the purposes of mining, agriculture, and other use- ful and beneficial uses." Van Dyke v. Midnight Sun Co. (Alaska), 177 Fed. 90. See, also, Sowards v. Mea- gher (Utah), 108 Pac. 1113. Preventing persons from entering upon public lands to which the party so preventing entry has no right is a misdemeanor in California. Pen. Code, sec. 420. 8 A. C. March 3, 1877, 19 Stat. 377, c. 107; U. S. Comp. Stata. 1901, p. 1548. 9 See supra, sec. 129. 199,200 Ch.9. WATERS ON PUBLIC LAND. (3ded.) 233 has been held that where a person files on lands under the Desert Land Act, and makes an affidavit that they are desert in character and unreclaimed, he cannot assert a right to water for irrigation as initiated before such entry. 10 Regarding the Desert Land Act, reference is made to a preceding section. 11 (3d e c uo> an | c< ' 431> 8e(J 1?> Water Rights 1C 242 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 210 National Forests. The first created was the Yellowstone Park Tim- ber Land Reserve proclaimed by President Harrison in 1891. The matter remained much in abeyance until February, 1897, when President Cleveland reserved twenty-one million acres. In June of that year the Forest Service was created under the Interior De- partment, being by act of February 1, 1905, transferred to the Department of Agriculture. The reservation of timber land in- creased rapidly by executive order, allowed in the act of Congress of March 3, 1891, under which practically all of the existing National Forests have been created during the administrations of President Roosevelt. In an act of March 4, 1907, it is provided that "hereafter no forest reserve shall be created, nor shall any addition be made to one heretofore created within the limits of the States of Oregon, Washington, Idaho, Montana, Colorado, or Wyoming, except by act of Congress." The power of the Presi- dent to create or enlarge National Forests in other States and in the Territories is unimpaired. In 1910 the area in the forest domain comprised about two hundred million acres. It covers in most Western States a large portion [such as in California one-fourth] of the State's area. 8 The law of forest reserves is almost wholly in the making, and anyone dealing with rights therein should acquaint himself with the views of the Forest Service by direct communication with its officers. (3d ed.) 210. Waters upon Forest Reserves. The Right of Way Acts usually provide that waters, as distinguished from rights of way, shall remain governed by State law. 8 * Thus the act of March 3, 1891, 9 provides that it "shall not be construed to interfere with the control of water for irrigation and other purposes under the authority of the respective States and Territories," and the act of February 26, 1897, 10 provides, "All reservoir sites reserved or 8 Supra, sec. 197. capable of irrigation, 6,500,000 acres The Territorial Engineer of New are good for grazing, and 400,000 Mexico said in Bulletin 215, O. E. S., acres are waste land." Within the United States Dept. of Agriculture: last year there has been some re-ad- "The eleven national forests in the justment to eliminate nonforest land Territory cover some 8,500,000 acres from the forest reserves, of the best timber sections. Of this 8a Supra, sec. 176. amount 500,000 acres are made up of 9 26 Stat., c. 561, p. 1095, see. 18. fine timber and 1,000,000 acres of 10 29 Stat. 599, c. 335. dry-farming land, 100,000 acres are 9 211 Ch. 9. WATERS ON PUBLIC LAND. (3d ed.) 243 to be reserved shall be open to use and occupation under the Right of Way Act of March third, eighteen hundred and ninety-one." The act creating the Forest Service declares: "All waters on such reservations may be used for domestic, mining, milling or irrigation purposes, under the laws of the States wherein such forest reservations are situated, or under the laws of the United States and the rules and regulations established thereunder." 11 The Service has not availed itself of this last clause, but takes the position, as yet, that the States shall control the waters. The Ser- vice has, however, secured enactment by Congress directly affecting waters upon the Black Hills Forest Reserve, expressly denying to private patentees of land thereafter granted in the reserve any riparian rights in streams flowing over such land. 12 In view of the position hitherto taken by the Forest Service, that it has no jurisdiction over waters, questions which concern us have arisen in regard to rights of way and reservoir sites. It would seem, however, that the right of access is a determinative factor in water law, and that control of access to streams is in fact control of the streams themselves. 13 (3d ed.) 211. Rights of Way and Reservoir Sites upon Forest Re- serves. The Forest Service rules and regulations lay down a system of law for rights of way and reservoir sites, considered at length in a later chapter. 14 11 A. C. June 4, 1897, 30 Stat. 13 Supra, sec. 54; infra, sees. 225, 11. 692, access to waters. 12 A. C. June 11, 1906, 34 Stat. 234. 14 Infra, sec. 430 et seq. 212-220. (Blank numbers.) 244 (3ded.) Pt. H. CALIFORNIA - COLORADO DOCTRINES. 221 CHAPTER 10. APPROPRIATIONS ON PRIVATE LAND. A. RIGHTS OF WAY CANNOT BE APPROPRIATED OVER PRIVATE LAND. 221. General protection of private land against ditch-building. 222. Consistently the California law. 223. Early conflict in the Colorado law Yunker v. Nichols. 224. Yunker v. Nichols no longer followed. 225. Access to the stream a determinative factor in the law of water- courses. 226. Exception in favor of government ditches. B. WATER ON PRIVATE LAND. 227. Difference in California and Colorado as to water on private land. 228. Water flowing over or by private land cannot be appropriated in California. 229. Authorities quoted. 230. Water partly on public and partly on private land in California. 231. The law of appropriation of diminishing importance in California. 232. Water on private land in Colorado. 233. Conclusions. 234-242. (Blank numbers.) A. RIGHTS OF WAY CANNOT BE APPROPRIATED OVER PRIVATE LAND. (3d ed.) 221. General Protection of Private Land Against Ditch- building. Despite any difference under the Colorado and Cali- fornia doctrines as to rights in water, both agree to-day that an appropriator must have lawful access to the stream before he can exercise water-rights. Upon public land the United States is to-day enforcing this principle by withdrawing the land, as set forth in the preceding chapter; as to private land the principle is to-day equally clear from the decisions, which now in all jurisdictions hold that an entry upon private land to build ditches or dams or other structures or work is a plain trespass and unlawful, like any trespass upon private property. An appropriation cannot be initi- ated unlawfully by a trespass upon private land, and no rights can be obtained thereby against the landowner whose land is 221 Ch. 10. WATERS ON PRIVATE LAND. (3ded.) 245 trespassed upon, in any jurisdiction. 1 The supreme court of the United States held that an appropriator could not build a ditch i Arizona. Boquillas etc. Co. v. Curtis (Ariz., 1909), 213 U. S. 339, 29 Sup. Ct. Rep. 493, 52 L. Ed. 822. Compare Biggs v. Utah etc. Co., 7 Ariz. 331, 64 Pac. 494. California. Vestal v. Young, 147 Cal. 715, 721, 82 Pac. 381, 383 ; Lux v. Haggin, 69 Cal. 255, 336, 344, 368, 10 Pac. 674; Weimar v. Lowery, 11 Cal. 104, 4 Morr. Min. Rep. 543; Correa v. Frietas, 42 Cal. 339, 2 Morr. Min. Rep. 336; Titcomb v. Kirk, 51 Cal. 288, 5 Morr. Min. Rep. 10; Last Chance etc. Co. v. Heilbron, 86 Cal. 1, 26 Pae. 523; Walker v. Emerson, 89 Cal. 456, 26 Pac. 968; Ball v. Kehl, 95 Cal. 606, 30 Pac. 780; Taylor v. Abbott, 103 Cal. 421, 37 Pac. 408; McGuire v. Brown, 106 Cal. 660, 670, 39 Pac. 1060, 30 L. R. A. 384; Los Angeles v. Pomeroy, 125 Cal. 420, 58 Pac. 69; Davis v. Martin, 157 Cal. 657, 108 Pac. 866. Colorado. Stewart v. Stevens, 10 Colo. 445, 15 Pac. 786; Crisman v. Heiderer, 5 Colo. 596; Tripp v. Over- acker, 7 Colo. 75, 1 Pac. 695; Down- ing v. More, 12 Colo. 318, 20 Pac. 766; Boglino v. Giorgetta, 20 Colo. App. 338, 78 Pac. 612; Nippel v. Forker, 9 Colo. App. 106, 47 Pac. 766, affirmed in 26 Colo. 74, 56 Pac. 577; Blake v. Boye, 33 Colo. 55, 88 Pac. 470, 8 L. R. A., N. S., 418; Baldridge v. Leon etc. Co., 20 Colo. App. 518, 80 Pae. 477; Sternberger v. Seaton etc. Co. (1909), 45 Colo. 401, 102 Pae. 168; Welty v. Gibson, 42 Colo. 18, 93 Pac. 1093; United States etc. Co. v. Gallegos, 89 Fed. 770, 32 C. C. A. 470'; Snyder v. Colorado etc. Co. (Colo. C. C. A.), 181 Fed. 62. Idaho. Le Quime v. Chambers, 15 Idaho, 405, 98 Pac. 415, 21 L. R. A., N. S., 76; Swank v. Sweetwater Irr. Co., 15 Idaho, 353, 98 Pac. 297. See Stats. 1911, c. 230 (lakes). Montana. Noteware v. Stearns, 1 Mont. 311, 4 Morr. Min. Rep. 650; Smith v. Dcnniff, 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398, 50 L. R. A. 741; Prentice v. McKay, 38 Mont. 114, 98 Pac. 1081. New Mexico. Vanderwork v. Hewes (N. M.), 110 Pac. 567. Nebraska. Rasmussen v. Blust, 83 Neb. 678, 120 N. W. 184, S. C., 85 Neb. 198, 133 Am. St. Rep. 650, 122 N. W. 862. Injunction is the proper remedy for preventing one without authority so to do from crossing the canal of an irrigation company with a lateral for the purpose of carrying water to his land from another canal. Castle Rock Irr. Co. v. Jurisch, 67 Neb. 377, 93 N. W. 690. Texas. See Toyaho etc. Co. v. Hutchins, 21 Tex. Civ. App. 274, 52 S. W. 101. Utah. Willow etc. Co. v. Michael- son, 21 Utah, 248, 81 Am. St. Rep. 687, 60 Pac. 943, 51 L. R. A. 280; Stalling v. Ferrin, 7 Utah, 477, 27 Pac. 686. Washington. Weidensteiner v. Mal- ly, 55 Wash. 79, 104 Pac. 143; Atkin- son v. Washington Irr. Co., 44 Wash. 75, 120 Am. St. Rep. 978, 86 Pac. 1123. Wyoming. Sterritt v. Young, 14 Wyo. 146, 116 Am. St. Rep. 994, 82 Pac. 946, 4 L. R. A., N. S., 169; Mc- Phail v. Forney, 4 Wyo. 556, 33 Pac. 773; Healy v. Smith, 14 Wyo. 263, 116 Am. St. Rep. 1004, 83 Pac. 583. Compare Mcllquhoun v. Anthony etc. Co. (Wyo.), 104 Pac. 20. United States Supreme Court. In Boquillas etc. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. Rep., at page 495, 53 L. Ed. 822, a case upholding, in Arizona, the rejection of the com- mon law of riparian rights, the court recognizes the principle, though the facts of the case did not involve it. Mr. Justice Holmes said: "A final objection urged is that the plaintiff's land is taken without compensation. It would seem that this is merely technical in this case. There does not appear to have been any discussion of the point below, and it is probable that the water is the only thing that has substantial value or really is cared for. But the plaintiff is author- ized to have his damages assessed if he desire by chapter 55, section 4 (now Rev. Stats., sec. 3202), as we have mentioned. We think that it would be unjust to disturb the decree on this ground, although in other cir- cumstances the objection might be grave." See, also, Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240, 4 Morr. Min. Rep. 504; Sturr v. Beck, 133 U. 246 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 222 over a prior located mining claim, or, if he does, the hydraulic miner may wash it away. 2 This applies equally to changes in point of diversion, place of use, means of use, or purpose of use, where land that was public at the time of creating the appropriation has passed into private hands at the time of the change. While the appropriator may change his place of diversion, manner, means, place and purpose of use at will upon public land, yet if in any way this injures rights already in private hands (and a change is per se an injury on private land) , 3 it cannot be done at all ; 4 and a change of a ditch originally built upon public land to another place on the land, or an enlargement of it after the land has passed into private hands, is absolutely prohibited. 5 A permit from the Secretary of the Interior or from the State Engineer is of no avail. 6 Rights of way over private land may, of course, be obtained by condemnation for public use, and under a recent decision of the supreme court of the United States, this applies, under certain circumstances, to a ditch built for one's private irrigation alone; as considered at length in the chapter upon eminent domain. 7 (3d ed.) 222. Consistently the California Law. The general prin- ciple was early established in California that the law of possessory rights (that is, the law of appropriation) applied only to vacant, unoccupied public domain, and must infringe nothing to which private rights had already attached at the time of the appropria- tion. Miners could not appropriate water already claimed by other private parties, even though not miners ; no mines could be located for mineral upon lands owned by private parties ; 8 no water could S. 541, 10 Sup. Ct. Rp. 350, 33 L. Ed. Young, 147 Cal. 721, 82 Pac. 383 ; 761. Weidensteiner v. Mally (1909), See, also, cases infra, sec. 259 et 55 Wash. 79, 104 Pac. 143; Welty v. seq., "prior settlers," and infra, sees. Gibson, 42 Colo. 18, 93 Pac. 1093 ; 498, 499, 502, 505, "change of ditch or Snyder v. Colorado ec. Co. (C. C. A. point of diversion." Colo.), 181 Fed. 62. 2 Jennison v. Kirk, 98 II. S. 453, 6 Baldridge v. Leon etc. Co., 20 25 L. Ed. 240, 4 Morr. Min. Rep. 504; Colo. App. 518, 80 Pac. 477; Vander- Miocene etc. Co. v. Jacobson, 2 Alaska, work v. Hewes (N. M.), 110 Pac. 567. 573. See infra, sees. 1193, 1194, authority 3 Vestal v. Young, infra. of State Engineer; vested rights pro- 4 Infra, sec. 498 et seq. tected. 5 Ibid. See, especially, McGuire v. 7 Infra, sec. 607 et seq. Brown, 106 Cal. 660, 39 Pac. 1060, 8 Boggs v. Merced M. Co., 14 Cal. 30 L. R. A. 384; Vestal v. Young, 147 279. 10 Morr. Min. Rep. 334. Cal. 715, 82 Pae. 381; Vestal v. 223 Ch. 10. WATERS ON PRIVATE LAND. (3d ed.) 247 be diverted from private land over which it flowed. 9 The Califor- nia court always guarded against the extension to private land of the peculiar character of rights on the public domain lest "its practical application would result in a system of judicial condemna- tion of the property of one citizen to answer an assumed paramount necessity or convenience of another citizen. ' ' 10 The act of Congress of 1866,. upon which the law of appropria- tion in California rests, expressly declares that the doctrine shall not apply to allow entries on private land, for it says : ' ' But when- ever any person, in the construction of any ditch or canal, injures or damages the possession of any settler upon the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage," 11 and, though it has been contended to be a permission to enter on payment of dam- ages, like the early California Possessory and Indemnity Acts, 12 the contention failed, as did those early California acts, and the provision instead was held to prohibit entries on private land (even possessory agricultural claims) absolutely, so far as it lay with Congress. 13 The landowner need show no actual damage against the tres- passer ; it is enough that his land is being entered upon ; the rule of injuria sine damno applies. 14 (3d ed.) 223. Early Conflict in the Colorado Law Yunker v. Nich- ols. But the early law of the younger States, under the lead of Colorado, diverged widely from this. Instead of appropriators, as trespassers on public land, having, as in early California, to defend themselves against the "legitimate" title of land patents, the ques- tion arose in Colorado only after that protection was given by 9 Crandall v. Woods, 8 Cal. 136, 1 Right of Way Act of March 3, 1891 Morr. Min. Rep. 604. (A. C. 26 Stats. 1095), providing, 10 Gregory v. Nelson, 41 Cal. 278, "Whenever any person or corporation at 290, 12 Morr. Min. Rep. 124. in the construction of any canal, ditch, 11 U. S. Rev. Stats., sec. 2339. or reservoir injures or damages the 12 Supra, sec. 85. possession of any settler on the public is Jennison v. Kirk, 98 U. S. 453, domain, the party committing such 25 L. Ed. 240, 4 Morr. Min. Rep. 504; injury or damage shall be liable to MeGuire v. Brown, 106 Cal. 668, 39 the party injured for such injury or Pac. 1060, 30 L. R. A. 384. See, also, damage." as to this proviso, Titcomb v. Kirk, 14 Vestal v. Young, 147 Cal. 715, 51 Cal. 288, 5 Morr. Min. Rep. 10; 82 Pac. 381, and Vestal v. Young, Jacob v. Lorenz, 98 Cal. 335, 33 Pac. 147 Cal. 721, 82 Pac. 383, and infra, 119; Woodruff v. North Bloomfield sec. 642. Co., 18 Fed. 753, 9 Saw. 441. See, generally, the historical chap- The same proviso appears in the ter, supra, c. 5. 248 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 223 the act of 1866, and then private landowners or patentees were, in the younger States, hard put to it to defend themselves against appropriators; for the law in these younger States proceeded to raise appropriators over the landowners in all respects. Early cases in Colorado had held that an appropriation could always be made on private land, even against the will of the land- owner. The first case in Colorado upon waters involved this point of violating private land by irrigators, the case of Yunker v. Nichols. 15 In this case the three judges gave separate opinions, as follows: "But here the law has made provision for this necessity by withholding from the landowner the absolute dominion of his estate, which would enable him to deny the right of others to enter upon it for the purpose of obtaining needed supplies of water. .... It may be said that all lands are held in subordination to the dominant right of others, who must necessarily pass over them to obtain a supply of water to irrigate their own lands, and this servitude arises, not by grant, but by operation of law." Per Judge Hallett, who seems to have thought that a certain statute 16 allowed this without condemnation. But .Belford, J., places the decision on the ground that on the facts there was a license to build the ditch, which, being acted upon, was irrevocable in equity, and this was a proper treatment of the case. He adds, however, some words similar to those above quoted from Judge Hallett, but in a vein that indicates that he thought it was in some analogy to eminent domain proceedings: "The construction of a ditch for irrigating purposes seems to me to rest on principles analogous to those which sustain the right of a private way over the land of another," but thinks that condemnation procedure may be waived by the acts of the parties, and says it was so in this case ; but then again adds that he justifies his decision on the ground of necessity, though "I am fully aware that courts should be slow to justify their decisions on the ground of necessity." Wells, J., says that the decision should be placed solely on the ground that each landowner has a right of way of necessity across the land of another to water. (Similar decisions were made in other early cases.) 17 Statutes have been passed to the same effect. 18 15 1 Colo. 551, 8 Morr. Min. Rep. 17 Schilling v. Rominger, 4 Colo. 64. 104, 109; Branagan v. Dulaney, 8 16 Laws of 1861, page 67, Revised Colo. 413, 8 Pac. 669. Statutes, 363. This act is more par- i Statutes enacting the principle ticularly considered supra r see. 119. of Yunker v. Nichols, that is, of gen- 224 Ch. 10. WATERS ON PRIVATE LAND. (3ded.)249 Another ground on which this universal right of entry on pri- vate land to divert streams for irrigation was given 19 as being that the United States, by sanctioning the law of appropriation, not only reserved from its land grants existing appropriations and diver- sions, but also a right of entry for any member of the public in the future to make appropriations thereafter. (3d ed.) 224. Yunker v. Nichols No Longer Followed. The weight of authority in Colorado and similar jurisdictions now clearly de- clares that the foregoing is no longer the law. In Crisman v. Heiderer 20 it was held that the decision in Yunker v. Nichols should be confined "to the narrowest limits"; adding, "it has been well said that the necessity of one man's business cannot be made the standard of another man's right." And since the adoption of the constitution this is recognized in Colorado as a taking of property that can be done only by condemnation on eminent domain proceedings, now specially provided for such cases. 21 In a ease construing the law of Colorado, the United States circuit court of appeals says: "The appellant owns all the land on both banks of this river. Regardless of its right to the water, it has the undoubted right to the undisturbed and exclusive possession of its land; and the appellees can divert no water with- out entering upon and leading it across this land and committing a continuing trespass upon it." Injunction granted, 22 adding that eral free right of entry on private Sovdh Dakota. Rev. Codes, Pol. land to build irrigation works or to Code, sec. 2564. change or enlarge existing works with- Washington. Pierce's Codes, sec. out consent or compensation: 5124 et seq. Arizona. Const., art. 1, sec. 17, is Wyoming. See Sterritt v. Young, similar in this to that of Colorado. 14 Wyo. 146, 116 Am. St. Rep. 994, 82 Colorado. M. A. S., sees. 2256, Pac. 946, 4 L. R. A., N. S., 169. 2257, 2261, 2263, 3158; Const., art. This list is probably not complete. 2, sec. 14. But see Const., art. 2, Compare the statutes infra, enact- sec. 15; art. 16, sec. 7; M. A. S., sees. ing the principle of Clark v. Nash, ex- 2256, 3158. tending the power of eminent domain Idaho. McLean's Idaho Rev. Codes, to private ditch building, making corn- sees. 3300, 3305 ; Rev. Stats. 1887, sec. pensation. Infra, sec. 609. 3181; Civil Code, sec. 2549 et seq.; 11 19 Tynon v. Despain, 22 Colo. 240, Terr. Sess. (1881) 269; Laws 1889, p. 43 p ac . 1039. 380, sec. 10. 20 5 r , ,- q6 Montana. Comp. Stats. 1887, sec. 1240. But see Prentice v. McKay, 38 21 Stewart v. Stevens, 10 Colo. 445, Mont. 114, 98 Pac. 1081. 15 Pac - 786 - North Dakota. Comp. Laws 1887, 22 United States etc. Co. v. Gal- sec. 2030. legos, 89 Fed. 770, 32 C. C. A. 470. Oklahoma. Const. 1907, art. 2, sec. Accord, Snyder v. Colorado etc. Co. 23. (Colo. C. C. A.), l&l Fed. 62. 250 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 224 nothing in the constitution or statutes of Colorado gives one the right to make an appropriation against a landowner by trespassing on his land; and the State courts of Colorado now also so hold. 23 In one recent case 24 it was held that even an act of Congress 25 gives no right over private land, even though filings were approved by the Secretary of the Interior. Yunker v. Nichols is confined to the point of executed parol license, which is all it really decided. 1 The case above referred to as asserting a reserved right of entry as a matter of construction of Federal land grants was explained away, 2 as being decided upon the fact of priority of the ditch to the time of vesting of the land grant, and not as permitting an entry subsequent to such vesting, or as declaring private lands subject to indiscriminate irrigation ditches in the future. 3 In a recent Colorado case it was strongly said that the right to build a ditch over another's private lands is an entirely different question from that of riparian right to water; and that if defend- ant has taken plaintiff's land for a right of way for a ditch, plaintiff may obtain appropriate relief in court, irrespective of any question of plaintiff's right to the water. 4 Another recent ruling in the Federal court for Colorado is that if a ditch is wrongfully built upon private land, it is entitled to no protection against tunneling by the landowner, causing seepage from the ditch. 5 In Idaho it was recently likewise said: "If the land on which this spring was located had already been patented before the location by appellants, then a different question would arise, because appel- lants would have been trespassers in entering upon the land for the purpose of locating, appropriating, and diverting the water unless they first had acquired a license or easement so to do. " 23 Cases cited at the beginning of * Sternberger v. Seaton etc. Co. this chapter. (1909), 45 Colo. 401, 102 Pac. 168. 24 Baldridge v. Leon etc. Co., 20 5 Snyder v. Colo. etc. Co. (C. C. Colo. App. 518, 80 Pac. 477. A.), 181 Fed. 62. 25 Of March 3, 1891. 6 Le Quime v. Chambers, 15 Idaho, 1 Morrison's Mining Rignts, 12th 405, 98 Pac. 415, 21 L. R. A., N. S., ed., p. 185 ; Mills on Irrigation, p. 273, 76. In another late Idaho case it was note 17. As to executed parol license, held that the fact that a party has see infra, sec. 556. located a water-right and filed his no- 2 Tynon v. Despain as construed in tice thereof in accordance with law Blake v. Boye, 38 Colo. 55, 88 Pac. does not give him any right to build 470, 8 L. R. A., N. S., 418. See, also, ditches and canals across the lands of Atkinson v. Washington Irr. Co., others until he has acquired the ease- 44 Wash. 75, 120 Am. St. Rep. 978, ment and right of way therefor either 86 Pae. 1123. by purchase or condemnation. The 3 M. A. S. (Colo.), see. 3158, pro- ownership of a water-right does not hibits building a ditch over a mining necessarily imply that the ownership claim without condemnation. of the ditch through which the water 224 Ch. 10. WATERS ON PRIVATE LAND. (3d ed.) 251 This applies to enlarging an existing ditch upon private land, as well as to building a new one there. 7 That an appropriation cannot be made by hostile entry upon private land is also held in Utah, 8 and in other States generally, as cited at the beginning of this chapter. 9 A recent case in Montana says: "The United States and the State of Montana have recognized the right of an individual to acquire the use of water by appropriation ; 10 but neither has au- thorized, nor, indeed, could authorize, one person to go upon the private property of another for the purpose of making an appro- priation, except by condemnation proceedings. The general gov- ernment has merely authorized the prospective appropriator to go upon the public domain for the purpose of making his appropria- tion, and the statutes of this State only apply to appropriations made on the public lands of the United States or of the State, and to such as are made by individuals who have riparian rights either as owners of riparian lands or through grants from such owners. This is the doctrine announced in Smith v. Denniff, 11 where the court further said: 'A trespasser on riparian land cannot lawfully exercise there any right to such water or acquire any right therein by virtue of section 1880 et seq. of the Civil Code of 1895. ' 12 In the same opinion this court also said: 'One may not acquire a flows is vested in the same person. segregated from the public domain Swank v. Sweetwater Irr. Co., 15 and the title thereto has passed into Idaho, 353, 98 Pae. 297, the court say- private ownership." Willow Creek etc. ing: "The fact that a party has a Co. v. Michaelson, 21 Utah, 248, 81 water-right gives him no right to enter Am. St. Rep. 687, 60 Pac. 943, 51 L. the lands of others for the purpose R. A. 280. See, also, Stalling v. Fer- of constructing ditches and canals rin, 7 Utah, 477, quoted supra, sec. across them, except over public lands 185. of the United States. He must ob- 9 Compare the Wyoming case of tain that easement and right of way Mcllquhoun v. Anthony etc. Co. (Wyo. either by purchase or condemnation." 1909), 104 Pac. 20, where it was 7 Welty v. Gibson, 42 Colo. 18, 93 claimed that public policy gave cattle Pac. 1093; Snyder v. Colorado etc. Co. and sheep men a right of way over (C. C. A. Colo.), 181 Fed. 62. Infra, private land in Wyoming to reach sec. 496 et seq., "changes." grazing lands on the public domain; 8 Section 2780, Compiled Laws of but the court held to the contrary. Utah of 1888, provided that a "nat- 10 Citing, inter alia, U. S. Rev. ural stream or other natural source Stats., sees. 2339, 2340 (U. S. Comp. of supply" could be appropriated. Stats. 1901, p. 1437) ; Mont. Rev. The court construed this to mean one Codes, sec. 4840 et seq. "flowing or situated upon lands over n 24 Mont. 22, 81 Am. St. Rep. which the sovereignty, has domain, or 408, 60 Pac. 398, 50 L. R. A. 741. which forms a part of the public 12 Citing section 4840 et seq., Rev. domain, and not to streams or springs Codes. Alta Land Co. v. Hancock, 85 or other waters rising through per- Cal. 219, 20 Am. St. Rep. 217, 24 Pac. eolation upon land after it has been 645. 252 (3d eel.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 225 water-right on the land of another without acquiring an easement in such land. ' " 13 Such, also, was the civil law, 14 and the early New Mexico law based thereon. 15 (3d ed.) 225. Access to the Stream a Determinative Factor in the Law of Watercourses. Concerning the principle of Tunker v. Nichols, which does not now seem in force anywhere, it is said 16 to have placed a grievous burden upon the ownership of valley lands because of "the liability to which his land is exposed of having ditches or canals constructed across it without his consent, for the purpose of conducting water from the stream to more dis- tant lands." Oommenting upon a statute enacting the principle the same writer says that it "is invalid seems hardly to admit of doubt. ' ' 17 Such attempted reservation from land titles in favor of indiscriminate irrigation ditch building in the future is similar to the attempted reservation in the early California Possessory Act in favor of miners ; and the refusal of the Colorado court to adhere to it is like the refusal of the California court to give full force to the Possessory Act. 18 It was rather a socialistic doctrine, for- 13 Prentice v. McKay, 38 Mont. 114, 198 Pac. 1081. 14 "If the acequia shall cross the land of another, or the crown lands, or the land common to the inhabitants of the pueblo, a license from the private owner, or from the king, or from the town council, is indispensable." Esch- riche, "Acequia" quoted in Lux v. Haggin, 69 Cal. 255, 10 Pac. 674. The Spanish Philippine Code con- tained in articles 407 to 425 the usual civil-law provisions concerning waters. Article 414 provided: "No one may enter private property in search of waters, or make use of them without permission from their owners." 15 In New Mexico Compiled Laws, section 17 (enacted in 1874), it was provided that "all of the inhabitants of the Territory of New Mexico shall have the right to construct either pri- vate or common acequias, and to take the water for said acequias from wherever they can, with the distinct understanding to pay the owner through whose land said acequias have to pass a just compensation for the land used," evidently meaning emi- nent domain condemnation. 16 Black's Pomeroy on Water Rights, p. 222. " Ibid., p. 207. Substituting in the following the word "appropriatable" for "naviga- ble," a succinct statement of the rule is deduced. "But as these so-called navigable ('appropriatable') waters are wholly surrounded by the lands of plaintiff, and as it is not asserted and indeed it would require much rashness and temerity to assert, that the public has a right to invade and cross pri- vate lands to reach navigable ('appro- priatable') waters, a lawful mode of ingress and approach to these navi- gable ('appropriatable') waters be- came necessary." Mr. Justice Hen- shaw, in Bolsa etc. v. Burdick, 151 Cal. 254, 90 Pac. 532, 12 L. R. A., N. S., 275. 18 Supra, sec. 85. "What value would there be to a title in one man, with a right of in- vasion in the whole world?" Judge Field asked in Boggs v. Merced Min. Co., 14 Cal., at 379, 10 Morr. Min. Rep. 334. 225 Ch. 10. WATERS ON PRIVATE LAND. (3d ed.) 253 getting that we have constitutions guaranteeing private property rights, to say that if you want another man's property badly enough you have only to take it, or that a court will listen to an argument that you have a greater desire or necessity to possess my property than I have. If it is for a public purpose and you pay for it, yes; and that the law allows to-day. 19 The right to be protected in the use of water as an incident to the land (the riparian right) is, as in the next section set forth, refused recognition in Colorado ; but the right to be protected against trespass as an incident to the ownership of land, while at first cast off with the riparian right, is now restored to the land- owner. It would be a taking of land without due process of law to permit others to seize rights of way over it; the California doctrine merely carries this also to seizing the use of water that is incident to the land. Indeed, it is the fact of access to the stream without trespass, which forms the basis of the law of riparian rights both at civil law and common law, for only riparian owners have natural access to the stream as a fact. 20 So long as the bordering lands are public and unreserved, there is free access to the stream; but when the lands become settled up, and nonriparian owners have no access to the stream, the Colorado doctrine must provide some elaborate system for condemnation of rights of way. As settlement ad- vances, nonriparian owners will be forced to resort to condemnation against riparian owners just as where the law of riparian rights prevails, excepting only that damages need not be paid for the water but only for the right of way. It resolves itself into the ultimate fact that, after all, riparian owners have certain natural rights, owing to their position with relation to the stream as a natural resource, that are rooted in nature and are of too deep an import to be wholly disregarded under any system of law. Say what one will about modifying the water law to meet necessities, in the end we find that it is the fact of nature which governs, and will not modify by court decree. When the riparian lands are well settled, the lack of access to the stream (except by condemning under the riparian owner) will exclude nonriparian owners from the stream under the law of ap- propriation as well as under the law of riparian rights; the differ- 19 Infra, c. 26. 20 Supra, sec. 54; infra, sec. 692 et seq. 254 (3d ed.) Ft. II. CALIFORNIA - COLORADO DOCTRINES. 226 ence being that the common law seeks to preserve equality among all who have natural access (the riparian owners) while the law of appropriation, because of its origin in an unsettled region, holds to the principle of exclusive right by priority, or "first come first served." 21 As settlement advances, the law of appropriation must necessarily retreat with the public lands; and as public lands bor- dering on streams are withdrawn by settlement, or by Federal with- drawal from entry, the law of appropriation will feel the effect of the determinative force of the right of access upon any system of water law. (3d ed.) 226. Exception in Favor of Government Ditches. As ap- plicable throughout the West it may be noted that an act of Con- gress 22 has the effect of reserving a perpetual easement and right of way to the government for ditches and canals that might there- after be constructed by authority of the government over lands which have been entered and patented subsequent to the passage of the act or that shall be patented hereafter. In other words, all private lands, hereafter patented, or patented since 1890, have been held to be subject to government ditch building. 23 A California statute is to the same effect regarding ditch build- ing by the United States upon State lands hereafter patented. 24 21 For settled regions the law of States, or on entries or claims vali- prior appropriation resolves itself into dated by this act, west of the one a system of priority between riparian hundredth meridian, it shall be ex- owners, where the common law seeks pressed that there is reserved from the equality between them. See supra, land in said patent described a right Bee. 51 et seq., "the law confined to of way thereon for ditches or canals natural resources." constructed by the authority of the 22 August 30, 1890, 26 Stat. 391; 6 United States." Fed. Stats. Ann. 508; U. S. Comp. The land office has ruled that this Stats. 1901, p. 1570. applies also to allowing the United 23 Green v. Wilhite, 160 Fed. 755; States to build a reclamation ditch Same v. Same, 14 Idaho, 238, 93 Pac. over a railroad located since 1890. 36 971. The act, a proviso found in the Land Dec. 482. But the Idaho court sundry Civil Appropriation Act of held that the land office was in error. Congress of August 30, 1890 (26 Stat. Minidoka etc. Co. v. Weymouth 391, c. 837; 6 Fed. Stats. Ann. 508 (Idaho), 113 Pac. 455. (U. S. Comp. Stats. 1901, p. 1570), 24 Cal. Stats. 1907, p. 848. See reads as follows: "That in all patents Cal. Stats. 1911, c. 426, regarding for lands hereafter taken up under rights of way for municipalities, any of the land laws of the United 227,228 Ch. 10. WATERS ON PRIVATE LAND. (3ded.)255 B. WATER ON PRIVATE LAND. (3d ed.) 227. Difference in California and Colorado as to Water on Private Land. While all jurisdictions to-day join in prohibiting hostile entry upon private land to appropriate water, they are divided into two classes, already considered, with regard to draw- ing water out of another's private land by going elsewhere for the purpose. The California doctrine, recognizing in the private land- owner riparian rights, prohibits diversion of water from the private land by nonriparian owners or for nonriparian use, even if entry upon the stream is made upon other land above the complaining landowner. The law of appropriation is wholly confined in Cali- fornia to entry upon and waters flowing over public land. On the other hand, in Colorado the law of prior appropriation applies to all waters, whether flowing over public or private land, so long as an actual trespass is not made upon the land itself of the complain- ing landowner. (3d ed.) 228. Water Flowing Over or by Private Land cannot be Appropriated in California. Congress, by the act of 1866, con- firmed and granted to the pioneers their rights, and held the public lands open to free appropriation of water, subject to local rules, which local rules in California are enacted, under the act of Con- gress, for the public domain in the Civil Code (sections 1410- 1422) ; but the United States did this only for its own lands the public lands. The California law of appropriation of water is in this the same as the mining law in nature and history, and the system does not sanction free appropriation as a perpetual right regarding waters on private land any more than the mining stat- utes confer any right to minerals there. Under the California doc- trine, the private landowner has the right of a riparian proprietor to have the stream (so far as it is or may be beneficial to his land) remain flowing by his land, whether using it or not, against all the world excepting only other riparian owners also owning land along the same stream and taking water for the use thereof (and except- ing also diversions made while his land was public, and before title passed into private hands). It is the essence of the California doctrine that, as a general principle, no appropriation, properly speaking, can be made of water flowing over or by private land. 256 (3ded.) Pt. II. CALIFOENIA - COLORADO DOCTRINES. 229 even though diverted upon an upper part of the stream without actual entry upon the complaining party's private land itself. 25 (3d ed.) 229. Authorities Quoted. In the first case upholding ap- propriation 1 it was said: "It must be premised that it is admitted on all sides that the mining claims in controversy, and the lands through which the stream runs and through which the canal passes, are a part of the public domain, to which there is no claim of private proprietorship"; and in another very early case: "It re- sults from the consideration we have given the case that the right to mine for the precious metals can only be exercised upon public land; that although it carries with it the incidents to the right, such as the use of wood and water, those incidents must also be of the public domain in like manner as the lands. ' ' 2 And so in subse- quent cases. In Lux v. Haggin: 3 "Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the State courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the ap- propriation was allowed or licensed by the United States. And since the act of Congress granting or recognizing a property in the waters actually diverted and usefully applied on the public lands of the United States, such rights have always been claimed to be deraigned by private persons under the act of Congress from the recognition accorded by the act, or from the acquiescence of the general government in previous appropriations made with its pre- sumed sanction and approval." In Lux v. Haggin even the dis- senting opinion of Judge Ross concedes, ' ' The doctrine is expressly limited to the waters upon what are known as the public lands." In another case: "It does not appear whether the lands through 25 See supra, sec. 117, list of cases to what the riparian right consists of, following the California doctrine; may not be somewhat narrowed (infra, infra, sec. 259, prior settlers; and c. 35). But that has no bearing here, infra, sec. 515 et seq., protection of while considering the distinction be- the riparian right against nonriparian tween public and private land law. owners. ! Irwin v. Phillips, 5 Gal. 140, 63 We state this here in this general Am. Dec. 113, 15 Morr. Min. Rep. 178. way, as a question between public and 2 Tartar v. Spring Creek etc. Co., private land, the former raising ques- 5 Cal. 396, 14 Morr. Min. Rep. 371, tions outside the common law. When quoted and approved by Field, C. J., examined within the common law, in Biddle Boggs v. Merced Min. Co., irrespective of public land law, we 14 Cal. 377, 10 Morr. Min. Rep. 334. would not say that this statement, as 3 69 Cal. 255, 10 Pac. 674. 229 Ch. 10. WATERS ON PRIVATE LAND. (3d ed.) 257 which the -stream ran at the time defendant claims to have acquired his right of appropriation were private or public property. If they were public lands of the United States at that time, we think it devolved upon the defendant to show that fact."* In Cave v. Tyler 5 it was said : ' ' In all the cases to which we have referred, the diversion was upon the public domain," and held that the law requires it 'to be so. 6 The same is laid down in the other courts following the historical theory. The United States circuit court of appeals says in a case arising in Montana: "The law is well settled that the doctrine of appropriation under said statute [Desert Land Act of 1877], which' is recognized and protected by section 2339 of the Kevised Statutes, applies only to public lands and waters of the United States." 7 And in Nebraska: "In this way the rule of appropria- tion became established in the Pacific States, in opposition to the common law, with reference to streams or bodies of water which wholly ran through or were situated upon the public lands of the United States.'' 18 "These rules, however, were confined to the public lands, and are so confined at the present time in California, Oregon and Washington." 9 And in Washington: "'Moreover, the doctrine of appropriation applies only to public lands, and when such lands cease to be public and become private property, it is no longer .applicable." 10 Likewise in another State: "In other words, 4 City of Santa Cruz v. Enright, 95 appropriate water under the provi- Cal. 105, 30 Pac. 197. sions of the Civil Code is not con- "The rancho Temescal was never fined to streams running over public public land within the meaning of the lands of the United States," the court United States statutes affecting ap- using the expression "common-law ap- propriations of water. The riparian propriation." This case is considered rights of the owners of private land in a subsequent section, infra, sec. are fully protected by section 1422 of 246. the Civil Code. Offe who bases his 7 Winters v. United States, 143 right solely upon appropriation made Fed. 740, 74 C. C. A. 666. See, also, of waters flowing over land which at S. C., 28 Sup. Ct. Rep. 207, 28 Sup. the time of the appropriation was part Ct. Rep. 208, 52 L. Ed. 340. of the public domain acquires there- 8 Crawford v. Hathaway, 67 Neb. by no right superior to or in deroga- 325, 108 Am. St. Rep. 647, 93 N. W. tion of those attaching to lands ripa- 781, 60 L. R. A. 889. rian to the same stream which at the 9 Meng v. Coffee, 67 Neb. 500, 108 time of the appropriation were held Am. St. Rep. 697, 93 N. W. 715, 60 in private ownership." Hargrave v. L. R. A. 910. Cook, 108 Cal. 72, 41 Pac. 18, 30 L. 10 Benton v. Johncox, 17 Wash. 277, E. A. 390, per Mr. Justice Henshaw. 61 Am. St. Rep. 912, 49 Pac. 498, 39 5 133 Cal. 566, 65 Pac. 1089. L. R. A. 107. See, also, Sanders v. 6 Compare Duckworth v. Watson- Wilson, 34 Wash. 659, 76 Pac. 281; ville etc. Co., 150 Cal. 520, 89 Pac. Mason v. Yearwood (Wash., 1910), 338, saying (dictum): "The right to 108 Pae. 608. Water Rights 17 258 (3ded.) Ft. II. CALIFORNIA - COLORADO DOCTRINES. 230 it is held under that doctrine that the rules of prior appropria- tion, founded upon local customs and laws, and ratified by con- gressional legislation, are confined in their operation to the public domain of the United States." 11 (3d ed.) 230. Water Partly on Public and Partly on Private Land in California. Where the course of a stream is partly on public and partly on private land, there would seem an argument on prin- ciple that some residuum of right therein remains in the United States by virtue of such dual position of the stream, which could be reached by appropriation. Assuming that there was such a residuum, we made some extended argument on this ground in the previous editions of this book, and perhaps the law might have taken that course. But it seems settled now in California by au- thority that no such residuum exists so far as concerns nonripa- rian appropriation against the riparian rights of the private land- owner ; 12 that a single private riparian land-holding upon a stream withdraws it (so far as it is, or may be in the future, beneficial to that land), completely from obtaining a permanent exclusive 11 Willey v. Decker, 11 Wyo. 496, affected by the incorporation of plain- 100 Am. St. Rep. 939, 73 Pac. 210. tiff company and by the legislation The Code Napoleon likewise excepts passed for the encouragement of ir- streams on the public domain. "The rigation. Mud Creek Irr. 'Agr. & waters mentioned in articles 644 and Mfg. Co. v. Vivian, 74 Tex. 170, 11 S. 645 [of the Code Napoleon affirmative W. 1078. of riparian rights] are, to the exclu- See likewise Prentice v. McKay, 38 sion of all others, the natural streams Mont. 114, 98 Pac. 1081; Lytle Creek that do not form dependencies of the Co. v. Perdew (Cal.), 2 Pac. 732; public domain." Droit Civile Fran- Lindley on Mines, 2d ed., p. 1526, sec. cais, by Aubrey & Rau, 4th ed., vol. 841. See, also, cases cited, supra, III, p. 46. sees. 117, 156. "But if the water was not so ap- The recent Oregon modification of propriated when it flowed over the this rule (which heretofore applied as public domain, it was not subject to much in Oregon as in other jurisdic- appropriation after the land over tions following the California doc- which it flowed became private prop- trine) is elsewhere set forth. Supra, erty." Cruse v. McCauley (Mont.), 96 sec. 129. Fed. 374. 12 The argument, though raised on In Texas, the act of March 10, 1875, the briefs in Lux v. Haggin, received providing that any canal company no attention from the court; and in a 'shall have the free use of the waters later case where it was raised the and streams of the State," does not court said: "We see nothing in the apply to 'waters running through pri- suggestion that defendant is pre- vate lands, so as to affect the vested sumably the licensee of the United rights of riparian owners, and hence, States, and that the United States, if defendants, as the owners of land being an upper riparian proprietor, along a stream, have the right to use could take a reasonable quantity of the water for purposes of irrigating water as against the lower riparian their lands, that right remained un- ownef. A riparian owner may not 231 Ch. 10. WATERS ON PRIVATE LAND. (3d ed.) 259 nonriparian right by appropriation until that riparian right is nullified by grant, condemnation or prescription. 13 (3d ed.) 231. The Law of Appropriation of Diminishing Importance in California. In the light of this history, the status of the Cali- fornia Civil Code, sections 1410 to 1422, as applicable only to public lands, and waters thereon, is clear. They declare in gen- eral terms that the right to a stream can be acquired by prior appropriation on posting a notice and actual diversion ; but sec- tion 1422, upon the original enactment of these sections, provided that the rights of riparian proprietors should not be affected, which, together with the history, shows these code sections to have been passed as public land law. It is like the mining statute just passed in California, 14 which declares that any person may locate a min- ing claim by posting and recording a notice, these mining sections wholly failing to use the words "public lands"; yet everyone knows them to be confined thereto. Moreover, the water sections provide for posting of notices, building of ditches, and changes of mode of use^ changes of ditches, changes of point of diversion, none of which, it is most emphatically held in California, can be done after the land has passed into private hands. 15 The intrinsic evidence of the sections, together with their history, shows them to be purely public land law. The result seems to be that, since the public domain has been passing in California, and the agricultural lands are now mostly in private hands, the logical end is approaching, and the system of prior appropriation is becoming little applicable to the streams of the State. The common law of riparian rights is becoming the general law. Nothing could be more emphatic than the opinion of Mr. Justice Sloss in a late California decision denying any right in a nonriparian owner to divert water flowing through private land which is or may be beneficial to the land, against the owner of that land; 16 so that the California Civil Code sections 17 upon the system of appropriation are approaching a condition where authorize, as against a lower pro- 14 Cal. Civ. Code, se 3 Am ' St Re P- 788 > 6 Pac - 442 5 U. S. Rev Stats., sees. 2339, 2340, Twaddle v WinterSj 2 9 Nev. 88, 85 ira ' sec - "* Pac. 280, 89 Pac. 289; United States ^ Supra, sec. 98. v . Winans, 198 U. S. 371, 25 Sup. 8 Barnes v. Sabron, 10 Nev. 217, 4 Ct. Rep. 662, 49 L. Ed. 1089. Morr. Min. Rep. 673; Shoemaker v. In Patterson v. Mills (Cal. 1902), Hatch, 13 Nev. 261 ; Hobart v. Wicks, 68 Pac. 1034, an 1855 appropriation 15 Nev. 418, 2 Morr. Min. Rep. 1; was held to prevail over a subsequent Jones v. Adams, 19 Nev. 78, 3 Am. St. patentee (date of patent not appear- Rep. 788, 6 Pae. 442. Nevada now ing). Lux v. Haggin, while discus- goes further, and supports the Colo- sing the Van Sickle case, and trying rado doctrine as in a later section. to minimize Broder v. Water Co., Water Righto 18 274 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 258 pressly reserving existing water-rights, the origin of which except- ing clause is shown in the note. 10 The same thing applies to rights of way. So far as the later Federal land grant carries riparian rights at all, those rights exist only in the surplus over all prior appro- priations. 11 (3d ed.) 258. Subsequent Settlers Under Federal Right of Way Acts. One who completes a ditch across public lands for irriga- tion purposes, and who is in possession thereof at the time another makes his homestead entry on the lands, acquires a right of way across the lands, and the homesteader takes his homestead subject was forced to admit concerning the latter, "The construction given to the language of the reservation, of course, implies that those who appro- priated lands or waters on the public lands, prior to the acts of 1864 [Rail- way Act] and 1866, had not been treated by the government in those acts as mere trespassers, but as there by license." 69 Cal., at 347, 10 Pac. 674. But cf. a remark in Duckworth v. Watsonville etc. Co., 150 Cal. 530, 89 Pac. 338, that an appro- priator must rely solely on the act of Congress; which would inferentially leave him without protection against land patents issued before the act. Cf. Land v. Johnston (1909), 156 Cal. 253, 104 Pac. 449. 10 DEPARTMENT OF THE IN- TERIOR. General Land Office, Washington, D. C., March 21, 1872. Hon. A. A. Sargent, M. C., Washing- ton, D. C. Sir: I have the honor to acknowl- edge the receipt to-day, by reference from you, of a letter bearing date of the twelfth instant, from George E. Williams, Esq., of Placerville, Cali- fornia, 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 satisfied that rights to the use of water for mining, manu- facturing, agricultural or other pur- poses, and rights for the construction of ditches and canals, used in con- nection with such water-rights, are fully protected 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 min- eral regions of the United States, to insert an additional clause or condi- tion, expressly protecting and reserv- ing 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 printed, and will be ready for use in a clay or two, pending the receipt of which, the granting of patents in the mineral region for ag- ricultural lands will be temporarily suspended. I am, sir, very respectfully, Your obedient servant, WILLIS DRUMMQND, Commissioner. Land patents have ever since con- tainer! an excepting clause protecting accrued water or ditch rights. See Redwater Co. v. Jones (S. D., 1911), 130 N. W. 85. 11 See following sections. 5 259 Ch. 12. APPROPRIATOBS AND SETTLERS. (3d ed.) 275 to such right of way. 12 The Right of Way Act of 1891 expressly so declares for ditches built under it, but the rule is the same even though the ditch builder did not proceed under the Federal Right of Way Act of 1891, 13 or even if he attempted to do that but was not successful in acquiring a right under such acts. 14 For the act of 1866 15 confirms Ijis right against subsequent settlers, 15 * and the Right of Way Acts are but supplementary to the act of 1866 in this and do not in this repeal it. The right of way prob- ably relates back to the beginning of the survey to determine its priority against the subsequent settler, just as against a rival right of way claimant. These matters are considered at some length in a later chapter devoted to the Federal Right of Way Acts. 10 But the subsequent settlers are subject only to the easement, which gives the right of way owner no right to build a house along- side the canal. 17 Nor are they (probably) subject to the holders of the mere revocable permits (not amounting to easements) for rights of way under the act of 1901 and the rules of the Forest Service. 18 An easement for a reservoir granted under the act of March 3, 1891, and subsequently acquired by the United States for use in connection with a project under the Reclamation Act, does not be- come extinguished by merger in the estate of the government in the land, and entries allowed for such lands within and below the flowage contour line of the reservoir are subject to the right of flowage by storage of waters in the reservoir. 19 (3d ed.) 259. Prior Settlers. Under the California doctrine, riparian rights attach to the land of prior settlers, which appropriations 12 Cottonwood D. Co. v. Thorn 15 Rev. Stats., sees. 2339, 2340. (1909), 39 Mont. 115, 101 Pac. 825, ' i 5a Supra, sec. 92 et seq. 104 Pac. 281. Accord as to a water ia r f . Ort ditch, Broder v. W. Co., 101 U. S. 6 ln f ra > sec " 43 et ^ 274, 25 L. Ed. 790, 15 Morr. Min. " Whitmore v. Pleasant Valley Co., Rep. 33 (railway grant); Rasmussen 27 Utah, 284, 75 Pac. 748; Nippel v. v. Blust (1909), 85 Neb. 198, 133 Forker, 9 Colo. App. 106, 47 Pac. 766; Am. St. Rep. 650, 122 N. W. 862; Nippel v. Forker, 26 Colo. 74, 56 Pac. and as to a pipe-line, Le Quime v. 5 ?7. See infra, sec. 502, changes of Chambers (1908), 15 Idaho, 405, 98 ditches. Pac. 415, 21 L. R. A. 76 (home- 18 Infra, sec. 431. 19 July 7, 1908; 37 Land Dec. 6. / 13 Cottonwood D. Co. v. Thorn, Compare Minidoka Co. v. Weymouth su P ra - (Idaho), 113 Pac. 454 (railway right TVT K ^To^V' !! U8 t ( S'loo of wa y over homestead land of United Neb. 198, 133 Am. St. Rep. 650, 122 States rec lamation project). 276 (3ded.) Pt..H. CALIFORNIA - COLORADO DOCTRINES. 259 thereafter must not disturb. Proceeding upon the theory of grant from the United States as landowner, under the California doc- trine the relation between the prior settler and the subsequent appropriator is that of successive grantees from the same owner, and the later grant can cover only what was left after the earlier one was made. This is the distinctive feature of what is laid down in Lux v. Haggin, 20 affirming Crandall v. Woods, 21 and affirmed in a long list of cases, 22 and is what is called "the Cali- fornia doctrine." What riparian rights consist of is fully considered in the next part of this book, devoted to the common-law system. In California, prior settlers on riparian land, whether home- steads, 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. In States following the Colorado doc- trine, riparian rights can never be acquired by anyone, rejecting the California doctrine. These are matters already fully set forth, and authorities .cited elsewhere. 23 The law of appropriation under the California doctrine is lim- ited to waters upon the public domain. The United States holds those waters open to free use, so long as they belong to the United States, but when the United States parts with the land over which the waters flow, the California law says it parts with its right to dispose of the water; the private landowner is thereafter the one whose right of disposal is paramount. 24 The settler's riparian right will attach to the surplus over prior appropriations, if there be prior appropriators who do not use the 20 69 Cal 255, 10 Pac. 674. Important modification of the 21 8 Cal. 136, 1 Morr. Min. Rep. ground taken under the California 604. See especially the passage quoted doctrine has very recently been made supra, sec. 156, from Moore v. Smaw, in Oregon. Hough v. Porter, 51 Or. 17 Cal. 199, 79 Am. Dee. 123, 12 Morr. 318, 95 Pac. 732, 98 Pac. 1098, 102 Min. Rep. 418. Pac. 728. See supra, sec. 129. 22 E. g., see Sturr v. Beck, 133 U. In Nebraska the law is somewhat S. 541, 10 Sup. Ct. Rep. 350, 33 L. Ed. like that of Oregon as to lands 761; McGuire v. Brown, 106 Cal. 660, patented since 1889, the date in which 39 Pac. 1060, 30 L. R. A. 384; Har- riparian rights are held abrogated in grave v. Cook, 108 Cal. 72, 41 Pac. 18, Nebraska by State statute. Supra, 30 L. R. A. 390; Miller v. Madera etc. sec. 126. Co., 155 Cal. 59, 99 Pac. 502, 22 L. 24 Crawford v. Hathaway, 67 Neb. R. A., N. S., 391 (opinion on rehear- 325, 108 Am. St. Rep. 647, 60 L. R. ing). See cases supra, sec. 117. A. 889, 93 N. W. 781. 23 Supra, sees. 117, 118. S 259 Ch. 12. APPROPRIATORS AND SETTLERS. (3d cd.) 277 whole stream, and his riparian right to such surplus will prevail over later appropriators. 25 As to any surplus over the requirements of the riparian owner, reference is made to later chapters. 1 As a general statement, his right is not limited by requirements or uses. The following 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. 2 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. ' ' 3 Likewise, in a very early case, "One who locates upon public lands with a view of appro- priating them to his own use becomes the absolute owner thereof as against everyone but the government,' 4 and is entitled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights antecedently acquired The rule 'qui prior est in tempore potior est in jure' must apply." 5 We add quotations from other States following the California doctrine: In Montana it was said in an early case allowing appro- priation: "This decision, it will be understood, does not go to the extent of allowing parties to appropriate and divert water so as to prevent the same from flowing over land to which^ a party had obtained the government title after the acquisition of this title. If no one before the pre-emption and entry of land by a party has acquired the right to divert the waters of a stream, then the patent from the general government conveys the water as an- inci- dent to the soil over which it flows. If it has been appropriated 25 Barrows v. Fox, 98 Cal. 63, 32 3 LUX v. Haggin, 69 Cal. 255, at Pac. 811; Faulkner v. Rondoni, 104 355, 10 Pac. 674. Cal. 140, 37 Pac. 883 ; Avery v. John- 4 As to the exception of the govern- son (Wash.), 109 Pac. 1028. Cf. ment in this early case, see supra, sec. Hutchinson v. Watson D. Co. (1909), 91. 16 Idaho, 484, 133 Am. St. Rep. 125, 5 Crandall v. Woods, 8 Cal. 136, 1 101 Pac. 1059. Morr. Min. Rep. 604. 1 Infra, sec. 755, between riparian In a recent case (Duckworth v. owners; sec. 814 et seq., between a Watsonville etc. Co., 150 Cal. 520, 89 riparian and a nonriparian owner. Pac. 338), Mr. Justice Shaw said: 2 Citing Irwin v. Phillips, 5 Cal. "The effect of an appropriation under 140, 63 Am. Dec. 113, 15 Morr. Min. the statute, when completed, is that Rep. 178. the appropriator thereby acquires a 278 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 259 before the time when the patent takes effect, it does not." 6 In Washington: "The right to appropriate water for mining and agri- cultural purposes from watercourses on the public domain is sanc- tioned by acts of Congress, and recognized by all the courts; but when the government ceases to be the sole proprietor, the right of the riparian owner attaches, and cannot be subsequently invaded in those States where the common-law doctrine of riparian rights prevails." 7 In Nebraska: 8 "We conclude, therefore, that in this State, under any view we may take of the subject, the right of riparian proprietors to the use of the waters flowing in the streams to which their lands are adjacent, when once attached, is, in its nature, a vested right of property, a corporeal hereditament, being a part and parcel of the riparian land which is annexed to the soil, and the use of it is an incident thereto which the owners cannot rightfully be deprived of or devested except by grant, prescription, or condemnation, with compensation by some of the means and methods recognized by law for the taking or damaging of private property for public use. ' ' * In the supreme court of the United States: In Sturr v. Beck, 10 the court said that when the government ceased "to be the sole proprietor, the right of the riparian owner attaches and cannot be subsequently invaded," and that "the riparian owner has the right superior to that of any subse- 9 In a late South Dakota case where quent appropriator on the same plaintiff appropriated water for non- stream But he acquires there- riparian use after defendants had set- by no right whatever as against rights tied upon an upper part of the stream existing in the water at the time his but before defendants were using it, appropriation was begun. An appro- it was said: "As riparian proprietors, priation does not, of itself, deprive however, they have the right, as any private person of his rights against the plaintiff, to use sufficient It affects and devests the riparian water for domestic purposes and for rights otherwise attaching to public the irrigation of all the cultivable lands of the United States, solely be- riparian land which can be irrigated, cause the act of Congress declares that and which was settled upon by their grants of public lands shall be made grantors prior to the location of the subject to all water rights that may plaintiff's appropriation. As to ripa- have previously accrued to any person rian land settled upon subsequently to other than the grantee." Regarding such location, the owner thereof is not this passage, see further, supra, sec. entitled to use any water for irriga- 246. tion tq the injury of the plaintiff's 6 Knowles, J., in Thorp v. Freed, appropriation." Redwater etc. Co. v. 1 Mont. 651. Reed (S. D.), 128 N. W. 702. See, 7 Nesalhous v. Walker, 45 Wash. also, Redwater Co. v. Jones (S. D.), 621, 88 Pac. 1032. See, also, Sander 130 N. W. 85. v. Wilson, 34 Wash. 659, 76 Pac. 280. 10 133 U. S. 541, 551, 10 Sup. Ct. 8 Crawford v. Hathaway, 67 Neb. Rep. 350, 33 L. Ed. 761. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889. 260 Ch. 12. APPROPRIATORS AND SETTLERS. (3d ed.) 279 right to have the water flow ut currere solebat, undiminished ex- cept by reasonable consumption of upper [riparian] proprietors, and no subsequent attempt to take the water only can override the prior appropriation of both land and water," etc. The prior grant of land receives this protection against later taking away of the water merely because it is the same protection that is given to the whole of a piece of land that is private prop- erty. The rest of the land receives the same protection. The land, by virtue of a prior grant from the government, being pri- vate, the appropriator cannot build a ditch over it, which is taking a right of way. 11 The appropriator cannot ditch over a prior mining claim, 12 nor build a house on land in private hands of an- other, 13 nor interfere with the prior right of way of another. 14 The cases in all States to-day recognize this inviolability (except by condemnation on eminent domain) of the right of the prior gran- tee to the land itself ; the difference is only that the Colorado doc- trine refuses to extend it also to the right to the water on the land. (3d ed.) 260. Prior Settlers Who Hold the Land in Fee. All land that has passed into private ownership in fee simple is fully within this rule, and protected in its riparian rights against sub- sequent appropriators, though the appropriator goes on vacant public land to make his appropriation. Usually the land passes into private ownership by virtue of a patent under the homestead, 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 sovereignty; and riparian rights (in jurisdictions recognizing riparian rights) fully attach to land whose title is deraigned under a Mexican grant. 15 Of course, the California rule 11 Supra, sec. 221 et seq. Co. v. Los Angeles, 177 IT. S. 169, 20 12 Jennison v. Kirk, 98 U. S. 453, Sup. Ct. Rep. 573, 44 L. Ed. 720. 25 L. Ed. 240, 4 Morr. Min. Rep. 504. Titles under Mexican grants were set- 13 Whitmore v. Pleasant Valley Co., tied under act of Congress March 3, 27 Utah, 284, 75 Pac. 748. 1851, entitled, "An act to ascertain 14 Bybee v. Oregon etc. Co., 139 and settle the private land claims in U. S. 663, 11 Sup. Ct. Rep. 641, 35 L. the State of California." Mexican Ed. 305 (quaere}. grants enter prominently into the land 15 T T ,UX v. Haggin, 69 Cal. 255, 10 law of California. In Moore v. Smaw, Pac, 674; Pope v. Kinman, 54 Cal. 3; 17 Cal. 199, 79 Am. Dec. 123, 12 Morr. Vernon etc. Co. v. Los Angeles, 106 Min. Rep. 418, Judge Field held a Cal. 237. 39 Pac. 762 ; City of Los confirmation of a Mexican grant to be Angeles v. Pomeroy, 124 Cal. 597, 57 ecfuivalent to an ordinary United Pac. 585 ; Pomeroy on Riparian States patent. The supreme court of Rights, sec. 42. See Crystal Springs the United States now holds the con- 280 (3ded.) Pt. H. CALIFORNIA - COLORADO DOCTRINES. 261 does not apply in jurisdictions where riparian rights are rejected in toto. 1Q Riparian rights attach likewise to a grant of State lands. 17 (3d ed.) 261. Prior Settlers Before Patent. As we have repeatedly said of the California law, "the right to divert water from a riparian owner has never been recognized by customs, laws, or de- cisions of courts in this State. On the contrary, all the decisions of this court as to acquiring water by naked appropriation have been based on the fact that the water was on the public domain, and that there were no riparian owners to 'complain. ' ' 18 The only question upon the matter which ever existed in the California reports was, When did the land become private respect- ing rights of way or waters thereon? Was it from the mere taking possession by the settler? Or was it from the date he entered an application for the land in the land office? Or was it when he made final proof in the land office? Or was it when he got a certificate from the land office of full payment to the United States for the land? Or, finally, was it only when a patent actu- ally issued to him for the land? This matter remained long in conflict, though to-day it is well settled that riparian rights are protected from the first step necessary to acquire patent. The trary. Bouquillas etc. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. Rep. 493, 53 L. Ed. 822. It is now held a con- firmation and not a quitclaim. Los Angeles Co. v. Los Angeles, 217 U. S. 217, 30 Sup. Ct. Rep. 452. 16 Gutierres v. Albuquerque etc. Co., 188 U. S. 545, 23 Sup. Ct. Rep. 338, 47 L. Ed. 588. Before the treaty of Guadalupe Hidalgo or the Gadsden purchase, landowners are held in Arizona not to have had the rights of riparian owners, and hence that no such right attaches to a Mexican grant so as to be preserved by confirmation of the grant after the United States acquired sovereignty. On the con- trary, the Mexican law resembled (it is held in Arizona) the law of appro- priation rather than the law of ripa- rian rights. Boquillas Land Co. v. Curtis, 11 Ariz. 128, 89 Pac. 504. Affirmed in Boquillas etc. Co. v. Cur- tis, 213 U. S. 339, 29 Sup. Ct. Rep. 493, 53 L. Ed. 822. And there is an exception even in California, which subordinates the Mexican grant's riparian rights to the pueblo right of the city of Los Angeles. Los Angeles Co. v. Los Angeles (1910), 217 U. S. 217, 30 Sup. Ct. Rep. 452, 54 L. Ed. 736. See supra, sec. 68. 17 Lux v. Haggin, 69 Cal. 255, 10 Pae. 674, saying: "Our conclusion on this branch of the case is that section 1422 saves and protects the riparian rights of all those who, under the land laws of the State, shall have acquired from the State the right of possession to a tract of riparian land prior to the initiation of proceedings to appropri- ate water in accordance with the pro- visions of the code." 18 T. B. McFarland, counsel, in Os- good v. El Dorado etc. W. Co., 56 Cal. 572, 5 Morr. Min. Rep. 37, later a member of the supreme court. 261 Ch. 12. APPROPRIATORS AND SETTLERS. (3d ed.) 281 patent relates back to the first step to acquire it, just as the water ap- propriation relates back to posting of notice or commencement of work. 18 * The difficulty was that, in the pioneer days all possessions (or "possessory rights"), whether of waters or mines or lands, were, in technical law, mere trespassers against the government as owner of the public lands and had, it was claimed, no actual rights until patent. But Crandall v. Woods 19 protected the settler against later diversion, from the very date of occupancy or taking pos- session of the land, and similar dicta appeared in other early Cali- fornia cases. 20 So, likewise, the act of 1866 contains a proviso that an appropriation must not conflict with the "possession" of any settler on the public domain. 21 Notice may also be taken of an early Colorado act, copied in other States, that one holding a possessory claim to land on a stream bank should have preserved to him a right to use the water "to the fullest extent of the soil." 22 However, the contrary was held in early Nevada cases, saying he would be protected only when patent issues, 23 and likewise the supreme court of the United States at first refused to consider a mere riparian possessor as having any riparian rights until patent actually issued, 24 and for a time the California court withdrew from the position taken in the first cases and held that, until patent actually issues for the land, or at least until full payment, riparian rights were not to be protected against later appropriation. 25 But to-day it is well settled that a patent takes effect (at least as against water appropriators) by relation back to the initial I8a Infra, sec. 393 et seq. Saw. 441; Jennison v. Kirk, 98 U. S. 19 8 Gal. 136, 1 Morr. Min. Rep. 453, 25 L. Ed. 240, 4 Morr. Min. Rep. 604, affirmed in Leigh v. Ditch Co., 8 504, construing the proviso in the act Cal. 328, 12 Morr. Min. Rep. 97. of 1866 to this effect. But notice 20 E. g., Hill v. Newman, 5 Cal. that the act also speaks of "home- 445, 63 Am. Dee. 140, 4 Morr. Min. steads allowed." Rep. 513, saying prior location upon 22 Supra, sec. 119. the land gave rights; but see Irwin v. 23 Covington v. Becker, 5 Nev. 281; Phillips, 5 Cal. 140, 63 Am. Dec. 113, Hobart v. Ford, 6 Nev. 77, 15 Morr. 15 Morr. Min. Rep. 178, refusing to Min. Rep. 236.; Lake v. Tolles, 8 Nev. consider the occupant a "tenant at 285. will" of the government. 24 Basey v. Gallagher, 87 U. S. 670, 21 U. S. Rev. Stats., sec. 2339. See 22 L. Ed. 452, 1 Morr. Min. Rep. 683. McGuire v. Brown, 106 Cal. 660, 25 Osgood v. Water Co., 56 Cal. 571, 39 Pac. 1060, 30 L. R. A. 384; Tit- 5 Morr. Min. Rep. 37; Farley v. comb v. Kirk, 51 Cal. 288, 5 Morr. Spring Valley etc. Co., 58 Cal. 142. Min. Rep. 10; Jacob v. Lorenz, 98 Not until final proof was the holding Cal. 335, 33 Pac. 119; Woodruff v. originally in Washington. Ellis v. North Bloomfield Co., 18 Fed. 753, 9 Pomeroy etc. Co., 1 Wash. 572, 21 Pac. 282 (3ded.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 261 step to acquire it; and the first formal step under the land laws for acquiring the land (upon surveyed land, filing entry or ap- plication in the land office) is to-day sufficient to entitle the settler to protection in his riparian rights against subsequent appro- priators. 1 "It was held in McGuire v. Brown, 2 which is the lead- ing case in the State and a case most excellently reasoned, that the statutes above quoted 3 do not confer the right upon an appro- priator of water on public land to go upon land after its entry by another as a homestead but before the claimant had made final 27. Sue, also, Tynon v. Despain (1896), 22 Colo. 240, 43 Pac. 1039. This was the real point involved in this Colorado case, though the Colorado law now proceeds upon wholly dif- ferent considerations. There has been much uncertainty in the law of this matter so far as concerns the related matter of rail- way rights of way over the land of existing settlers before patent. Thus, while at one time it was held that a railroad, under grant of Congress, could locate its road, without com- pensation, over an existing unpatented mining claim (Doran v. Central Pac. Co., 24 Cal. 245), or an existing pre- emption claim (People v. Shearer, 30 Cal. 645; Southern Pac. Co. v. Burr, 86 Cal. 282, 24 Pac. 1032; Western P. Ry. v. Tevis, 41 Cal. 489), or over an existing ditch (Bybee v. Oregon etc. Co., 139 U. S. 680, 11 Sup. Ct. Rep. 641, 35 L. Ed. 305), yet the usual holding has protected the possessory claim against the railroad. As to a mining claim, Alaska etc. Co. v. Cop- per etc. Ry. (Alaska, 1908), 160 Fed. 862. 87 C. C. A. 666; South. Cal. Ry. Co.'v. O'Donnell, 3 Cal. App. 385, 85 Pac. 932; as to a pre-emption claim, Washington etc. Co. v. Osborne (1889), 2 Idaho, 527, 557, 21 Pac. 421; as to a homestead claim, John- son v. Bridal etc. Co. (Or. 1893), 24* Or. 182, 33 Pac. 528; Larsen v. Ore- gon Ry. & Nav. Co. (1890), 19 Or. 240, 23 Pac. 974; Spokane Falls etc. Co. v. Ziegler, 167 U. S. 65, 17 Sup. Ct. Rep. 728, 42 L. Ed. 79. See, also, 37 Land Dec. 789. The question is newly arising under the National Ir- rigation Act, as to how far the United States must compensate unpatented settlers on land withdrawn for the national irrigation projects, it being recently held that they are not entitled to compensation. United States v. Hansen (Wash. 1909), 167 Fed. 881. See, also, 38 Land Dec. 603; Mes- senger v. Kingsbury (Cal., Nov. 21, 1910), 112 Pac. 65, dictum. The na- tional irrigation case presents direct action by the United States; the rail- way cases presented action under an express act of Congress; but in theory these are no different from the water cases, which, in California, also rest the appropriation of water in grant from the United States ; and in the water law it is now well settled that the riparian rights of the posses- sory estate will be protected against appropriators in California. (See the opinion of Judge Whitson in the flan- sen case.) 1 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. D. 519, 91 N. W. 352; Same v. Same (S. D.), 128 N. W. 596; Red- water etc. Co. v. Reed (S. D.), 128 N. W. 702; 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. Brbwn, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Union M. & M. Co. v. Dangberg, 2 Saw. 450, Fed. Gas. No. 14,370, 8 Morr. Min. Rep. 113 ; Long on Irrigation, sec. 30. The certificate of final entry of land, issued by the United States Land Office, is evidence of the facts recited therein, including the date on which settlement was made. Davis v. Chamberlain, 51 Or. 304, 98 Pac. 154. 2 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384. 3 U. S. Rev. Stats., sees. 2339, 2340 (act of 1866). 261 Ch. 12. APPEOPRIATORS AND SETTLERS. (3d ed.) 283 proof, and change the point of diversion or construct new ditches or in any way to interfere with the initiatory rights of the home- stead applicant. Sturr v. Beck 4 holds that the filing of a home- stead entry of a tract across which a stream of water runs in its natural channel, with no right or claim of right to divert it there- from, confers a right to have the stream continue running in that channel without diversion, which right, when completed by full compliance with the requirements of the statutes on the part of the settler, relates back to the date of the filing and cuts off inter- vening adverse claims to the water. The reasoning in this case would apply equally to the relatibn back of the right of the home- stead entryman to the land conveyed to him by the patent." 5 A valid mining location constitutes the locator a riparian owner within this rule ; and water flowing through a mining location can- not be appropriated later to the injury of the owner of the mining claim's riparian rights, though the claim be not patented. 6 The date from which riparian rights are now protected is, in the California decisions (as already said), for surveyed land the filing of entry or application in the land office the first formal step under the homestead or other statutes for acquiring the land. 7 In some cases in other jurisdictions it is stated indefinitely, but seem- ingly to the same effect, such as "from the first necessary pro- ceedings" or "from the very inception of his title." 8 But there are statements in the cases which date riparian rights from the date of settlement or occupancy with intent to acquire title, though 4 133 U. S. 541, 10 Sup. Ct. Rep. Fed. 62. See Cascade Co. v. Empira 350, 33 L. Ed. 761. Co. (Colo.), 181 Fed. 1011. - Atkinson v. Washington Irr. Co., 7 To the same effect, Sturr v. Beck, 43 Wash. 75, 12 Am. St. Rep. 978, 6 Dak. 71, 50 N. W. 486; Cruse v. 86 Pac. 1123, protecting' the settler McCauley, 96 Fed. 369. against an irrigation company which 8 Benton v. Johncox, 17 Wash. 277, sought to initiate work on the ground 61 Am'. St. Rep. 912, 49 Pac. 498, 39 that patent had not yet issued to the L. R. A. 107, adding: "The doctrine settler. that the rights of a patentee or gran- 6 Crandall v. Woods, 8 Cal. 136, 1 tee of the government relate back to Morr. Min. Rep. 634; Leigh v. Ditch the first act of the settler necessary in Co., 8 Cstl. 323, 12 Morr. Min. Rep. the proceedings to acquire title is also 97. See Pomeroy on Riparian Rights, announced in the following cases: sec. 33 et seq. ; Macligan v. Kougkarok Shepley v. Cowan, 91 U. S. 330, 23 L. M. Co., 3 Alaska, 63; Schwab v. Beam, Ed. 424; Larsen v. Navigation Co., 19 86 Fed. 41, 19 Morr. Min. Rep. 279. Or. 240, 23 Pac. 974; Faull v. Cooke, (See infra, sec. 366; as to this case.) 19 Or. 455, 20 Am. St. Rep. 836, 26 But not where riparian rights are Pac. 662. See, also, Kinney on Irri- rejected in toto as under the Colorado gation, sec. 210; Union etc. Min. Co. doctrine. Van Dyke v. Midnight Sun v. Dangberg, 2 Saw. 450. Fed. Cas. Co. (Alaska), 177 Fed. 90; Snyder v. No. 14,370, 8 Morr. Min. Rep. 113." Colorado etc. Co. (Colo. C. C. A.), 181 284 (3d ed.) Pt. II. CALIFORNIA - COLORADO DOCTRINES. 261 no filings have yet been made. 9 These rulings seem to be made for unsurveyed land only. As to unsurveyed land, titles relate back to the settlement antedating the filings, since filings are im- possible until survey is made. 10 But whether, on either surveyed or unsurveyed land, naked occupancy without actually intending to make the necessary land filings at all, will protect riparian rights, is a different question. Against a wrongdoer equally without right to the land or water, it may be that the first mere squatter is entitled to such protec- tion. 11 Thus naked occupancy of land was sometimes held alone enough in the pioneer days of California before the Federal stat- utes, when a naked appropriation of land by taking possession was as complete a right as the United States afforded, and the land appropriator was presumed (as against later water appropriators) to have the government's grant because of his occupancy. 12 But since the Federal statutes for acquiring land titles, an express grant of land is provided for, and to protect land rights (or riparian rights incident thereto) in favor of one not proceeding thereunder, and against one proceeding under the water appro- priation statutes, would seem in violation of both the land and water statutes. Consequently it has been held that a bare squat- ter upon public land, surveyed or unsurveyed, who has no inten- tion of filing upon the land or of proceeding to actually acquire title, has no riparian rights against an appropriator complying 9 Morgan v. Shaw, 47 Or. 333, 83 of settlement with intent to acquire Pac. 534; Lone Tree Ditch Co. v. title, provided a statement was filed Cyclone Ditch Co., 15 S. D. 519, 91 in the local land Office within three N. W. 352; Same v. Same (S. D.), months after survey. The Homestead 128 N. W. 596; Stengle v. Tharp, 17 Act of May 20, 1862, 12 Stat. 392, did S. D. 13, 94 N. W. 402 ; Redwater etc. not originally allow settlements on un- Co. v. Reed (S. D.), 128 N. W. 702; surveyed land; but after A. C. May Faull v. Cooke, 19 Or. 455, 20 Am. St. 14, 1880, homesteading was also per- Rep. 836, 26 Pac. 662; Benton v. mitted on unsurveyed land; so that Johncox, 17 Wash. 277, 61 Am. St. thereafter, under both the pre emption Rep: 912, 49 Pac. 498, 39 L. R. A. 107, and homestead laws land titles of set- saying the settler is entitled to the tiers relate back to the date of settle- common-law rights of riparian pro- ment and not merely to entry of prietors, as against subsequent appro- record of claim in the land office. St. priators of the water, from the date Paul Ry. Co. v. Donohue, 210 TJ. S. of their occupancy, with intent to ac- 21, 30, 28 Sup. Ct. Rep. 600, 52 L. Ed. quire the title of the government in 941; William Boyle, 38 Land Dec. 603. pursuance of law. In Redwater Co. v. n Supra, sec. 246, "disseisin"; Jones (S. D.), 130 N. W. 85, it is said infra, sec. 319, "trespassers"; infra, the rule is the same whether a pre- sec. 724, "who are riparian proprie- emption or a homestead. tors." 10 U. S. Rev. Stats., sec. 2266, 12 Crandall v. Woods, 8 Cal. 136, 1 allowed pre-emption rights from date Morr. Min. Rep. 634. 262,263 Ch. 12. APPEOPEIATOES AND SETTLERS. (3d ed.) 285 with the water statutes. 13 Naked possession of the public lands gives no rights against those who peaceably seek to obtain rights under the statutes now passed for that purpose. 14 (3d ed.) 262. Prior Settlers Under the Colorado Doctrine. The fore- going is the California doctrine. Under the Colorado doctrine, as a general principle, riparian rights can never be acquired by any- one. 15 Private land in Colorado through which a stream flows carries no riparian rights, and at any time before water flowing through it is actually appropriated to use by the landowner him- self, anyone else may divert away the whole above him, though the water be the sole element of value of the land, and though the land patent issued before the adoption of the provisions in the Colorado constitution regarding appropriation. 16 In Colorado the presence of water on land is not an element in damages on condemning the land on eminent domain, where the landowner had made no application of the water; 17 nor does the Federal land grant confer color of title to water flowing through it. 18 There is an early statute in Colorado and similar States, to which we have frequently referred, declaring that all landowners on the banks of streams shall be entitled to use the waters to the full extent of the soil; but this is held to refer only to cases where the water is actually in use by the landowner. 19 (3d ed.) 263. Prior Settlers Under the Federal Right of Way Acts. Settlers or landowners having initiatory rights at the time the survey for a right of way was made under the Federal Right oE Way Acts 20 are, by the act of 1891, entitled to damages. The clause in this regard is practically identical with the clause in the act of 1866, and under that act ditch building on private land is, 13 Lux v. Haggin, 69 Cal. 255, at * 4 Lindley on Mines, sec. 216 et seq. 432, 433, 10 Pac. 674; Morris v. Bean See Cal. Pen. Code, sec. 420. (Mont.), 146 Fed. 432; Scott v. 15 Supra, sec. 118. Toomey, 8 S. D. 639, 67 N. W. 838; i Sternberger v. Seaton etc. Co. Silver Creek etc. Co. v. Hayes, 113 (1909), 45 Colo. 401, 102 Pac. 168; Cal. 142, 45 Pac. 191; Kendall v. citing this book. Cf. Cascade Co. v. Joyce, 48 Wash. 489, 93 Pac. 1091; Empire Co. (Colo.), 181 Fed. 1011. Avery v. Johnson (Wash.), 109 Pac. 17 Siedler v. Seely, 8 Colo. App. 1028; Hobart v. Ford, 6 Nev. 77, 15 499, 46 Pac. 848. Morr. Min. Ep. 236; Lake v. Tolles, 18 Clark v. Ashley, 34 Colo. 285, 82 8 Nev. 285, both Nevada cases being Pac. 588. while riparian rights were recognized. 19 Supra, sec. 119. For the recent Compare United States v. Hanson exception in Idaho, see supra, sees. 118 (Wash.), 167 Fed. 881. and 185. 20 infra, sec. 430. 286 (3ded.) Pt. II. CALIFORNIA - COLOEADO DOCTRINES. 264 as just considered, not sanctioned except by condemnation. The rule seems to be that the approval of the Secretary of Interior can give no right of way over private land; and land entered by a settler, though not yet patented, is private in this regard. 21 In a suit by the United States to restrain canal building under the act of 1891, the rights of settlers affected by the canal cannot be adjudicated if they are not parties to the suit. 22 (3d ed.) 264. Conclusions. (a) The relation between appropriators and riparian owners as respects use of water raises no question upon the law of waters under the Colorado doctrine, as riparian rights are not there recognized. (b) The relation between appropriators and riparian proprie- tors under the California doctrine is that of successive grantees from the United States as owner of the right to the water incident to the public lands. Priority of right on public land governs on the one hand, as to whether the riparian owner's rights prevail or, not ; on the other hand, riparian rights exist in the surplus over the prior appropriation. As to any surplus over the possible uses of the riparian owner, no appropriation, properly speaking, can be made, even though possibly such surplus diversions may not, in all cases, be wrongful. 23 (c) Priority governs between settlers and ditch builders (irre- spective of water-rights) ; the settler's right and the ditch builder's right both relating back to their initiatory proceedings respec- tively. 21 Supra, sec. 221 et seq., ditches on of the subdivision entered, there be- private land. See, also, Whitmore v. ing no authority to make deduction Pleasant Valley Co., 27 Utah, 284, 75 in such cases. If a settler has a valid Pac. 748; Nippel v. Forker, 9 Colo. claim to land existing at the date of App. 106, 47 Pac. 766; Nippel v. the filing of the map of definite loca- Forker, 26 Colo. 74, 56 Pac. 577; tion, his right is superior, and he is Baldridge etc. Co. v. Leon, 20 Colo. entitled to such reasonable measure App. 518, 80 Pae. 477, and cases in of damages for right of way as may sec. 261, note 21, supra. be determired upon by agreement or The land office says, in a circular in the courts, the question being one of June 6, 1908, containing regula- that does not fall within the jurisdic- tions concerning rights of way: "All tion of this department." persons settling on a tract of public 22 United States v. Lee (N. M.), land, to part of which right of way 110 Pac. 607. See infra, sec 626 et has attached for a canal, ditch, or seq. reservoir, take the land subject to such 23 Infra, sec. 824 et seq. right of way, and at the total area 265-274. (Blank numbers.) PART III. THE LAW OF PRIOR APPROPRIATION. CHAPTER 13. ELEMENTS OP A RIGHT BY APPROPBIATION. 275. Introductory. 276. The right is usufructuary. 277. No property in the "corpus" of the water. 278. No property in the channel. 279. The right is exclusive. 280. Distinguished from right to a ditch. 281. Independent of mode of enjoyment. 282. Recent tendency to the contrary. 283. Eeal estate. 284. Same Taxation. 285. An estate of freehold. 286. Conditional. 287. An incorporeal hereditament. 288. Definition. 289. Same. 290-298. (Blank numbers.) (3d ed.) 275. Introductory. In the law of watercourses the rules governing the usufruct in natural streams form the bulk of the law. The law of watercourses is a law of natural resources. We shall deal with this body of law under two systems prevailing in the Western States: first, the system of prior appropriation (the system of priorities), which gives unequal rights in streams according to the relative times of beginning use; second, the common law of riparian rights (the system of correlative rights), which gives equal rights to all riparian proprietors without re- gard to the relative times of beginning use. The reason for con- sidering them in this order is that the common law, in Western jurisdictions applying it, will not come into full force until the riparian lands are well settled; while the law of prior appropri- ation, in the present day of large stretches of vacant unsettled (287) 288 (3d ed.) Pt. III. THE LAW OF PEIOR APPKOPKIATION. 276 public land, is (outside of California, where private land pre- dominates in agricultural regions) of more frequent application at the present time, even in the jurisdictions which, as to private lands, apply the common-law system. Speaking now of the law of prior appropriation, attention is again called to the transition which it is undergoing within itself. From a possessory system, arising as a possessory right upon the public domain, acquired by taking possession, measured by capac- ity of ditch (the amount in possession) and lasting until posses- sion is intentionally abandoned, it is changing to a "particular use" basis, acquired by actual use, measured by beneficial use alone, and lost by nonuse without regard to intention to abandon or relinquishment of possession; a change set forth more in detail in a preceding chapter. 1 Consequently, the elements of the right are more or less in a state of flux ; and although to-day they have the form set forth in the following sections, departures from time to time may be expected from many rulings to-day made in some of these matters. (3d ed.) 276. -The Bight is Usufructuary. Speaking of "qualified property" as opposed to an absolute right of property, Black- stone says: 2 "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 per- manent 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 posses- sion. But the property in them ceases the instant they are out of possession ; for, when no man is engaged in their actual occu- pation, they become again common, and every man has equal right to appropriate them to his own use." 3 1 Supra, sec. 139. 3 This quotation is given as an ex- 2 Book II, chapter 25, p. 3&5. planation of what is meant by a'usu- 277 Ch. 13. ELEMENTS OF BIGHT. (3d ed.) 289 The right of an appropriates is likewise only usufructuary. Although for shortness' sake, the appropriator is spoken of as the owner of the water, yet there is no property in the water itself nor in the channel of the stream conferred by the appro- priation ; the appropriator owns a right only to have the flow and use of the stream, which is called his "water-right." 4 The stream water itself is in the "negative community," the prop- erty of no one ; or, by the recent Water Code form of expression, "belongs to the public" or to the "State in trust for the peo- ple." 6 (3d ed.) 277. No Property in the "Corpus" of the Water. Property in the corpus of the waters is not recognized, so long as flowing naturally; the naturally flowing substance is like the air in the atmosphere, incapable of being owned. "This court has never departed from the doctrine that running water, so long as it con- tinues to flow in its natural course, is not, and cannot be, made the subject of private ownership. A right may be acquired to its use, which will be regarded and protected as property; but it has been distinctly declared in several cases that this right car- ries with it no specific property in the water itself." Adding that it may be different with water in a ditch severed from the natural stream. 6 Hence, the appropriator cannot sue for the value of water at so much per inch or gallon diverted from the stream above him by another; he must declare for the damage to his enterprise from loss of the flow and use. 7 Likewise a sale of the water- fructuary right, that feature 'being nor an appropriator has title or owner- common to both the systems of ap- ship in the water of the stream. This propriation and riparian rights. The has been expressly decided with re- passage quoted and others in Black- spect to appropriators. The same rule stone were at one time further thought applies to the riparian owner. Mr. to countenance the law of appropria- Justice Shaw, in Duckworth v. Wat- tion in England; but that was a mis- sonville Water Co., 150 Cal. 520, 89 understanding of the passage, and has Pac. 336. long since been repudiated. See infra, That appropriation is only usuf rue- sec. 666 et seq. tuary, and confers no ownership in 4 Riverside etc. Co. v. Gage, 89 Cal. the corpus of the water is set forth 410, 26 Pac. 889 ; Smith v. Green, 109 at length in the first part of this book. Cal. 229, 41 Pac. 1022. See especially, sec. 18, supra. 5 Supra, c. 1. 7 Parks etc. v. Hoyt, 57 Cal. 44; C Kidd v. Laird, 15 Cal. 162-180, Riverside etc. Co. v. Gage, 89 Cal. 410, 76 Am. Dec. 472, 4 Morr. Min. Rep. 418, 26 Pac. 889. 571. Neither a riparian proprietor Water Rights 19 290 (3d ed.) Pt. III. THE LAW OF. PRIOR APPROPRIATION. 278 right does not mean the delivery of any specific quantity of water. 8 It does not sell the water itself, but only the right to use it. 9 Nor can one set up a claim to water after it has been allowed to run off without intent to recapture. 10 When, how- ever, the water has once been severed from its natural water- course, so long as it is in an artificial structure such as reduces it to possession, it does become the subject of ownership, and like the law respecting the fish in the water after being caught, the corpus is private property. 11 The point here involved is a fundamental one in all legal con- ceptions of rights in running water as distinguished from stand- ing or percolating water, being borrowed into the law of appropriation from the common law and into the common law from the civil 'law. It is what is comprehended by the phrase that running waters are "publici juris," or "belong to the pub- lic," elsewhere herein discussed. 12 (3d ed.) 278. 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 Federal land laws. And, consequently, the same channel may be used by several appropriators, as where one man had ap- propriated water and a later comer above stream added a large volume of water to the channel, and then diverted it again be- fore it reached the former appropriator, thus using the channel as a link in a long ditch line. 13 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. 14 Others may build a reservoir in the bed. 15 If a river abandons its chan- nel while on public land, the channel cannot, after title to the bed has passed as land to a private owner, be used for drainage of 8 Booth v. Chapman, 59 Cal. 149. 13 Hoffman v. Stone, 7 Cal. 46, 4 9 Johnston v. Little Horse etc. Co., Morr. Min. Rep. 520; Butte Co. v. 13 Wyo. 208, 110 Am. St. Rep. 986, Vaughn, 11 Cal. 143, 70 Am. Dec. 769, 79 Pac. 26, 70 L. R. A. 341. 4 Morr. Min. Rep. 552. Supra, sec. 10 Eddy v. Simpson, 3 Cal. 249, 58 38. Am. Dec. 408 15 Morr. Min. Rep. 175. 14 D , y> gan D - c 4(J Fgd Supra, sec. 37 et seq. ^QQ 11 Supra, c. 3. 12 Supra, e. 1. See, also, infra, sec. i 3 Larimer etc. Co. v. People, 8 688. Colo. 614, 9 Pac.' 794. 279 Ch.13. ELEMENTS OF RIGHT. (3d ed.) 291 waste by an appropriator, since his appropriation gave him no property in the channel itself. 16 (3d ed.) 279. The Right is Exclusive. As opposed to the correlative rights of the common law, whereby all riparian owners on th'e stream have equal rights, under the law of appropriation the rights of the claimants are unequal. Each has an exclusive right to the extent of his prior appropriation, and appropriations vary greatly in the extent of right appropriated. "A party ap- propriating water has the sole and exclusive right to use the same for the purposes for which it was appropriated." 17 So long as the water is put to beneficial use, priority alone governs. Full protection is given to the prior appropriator against all later comers. 18 This exclusiveness includes the right to tributaries and sources, 19 even tributary percolating water so far as proof traces it as tributary, 20 and also storm waters that are of annual occurrence. 21 It is held: "The prior appropriator of a par- ticular quantity of water from a stream is entitled to the use of that water, or so much thereof as naturally flows in the stream, unimpaired and unaffected by any subsequent changes which, in the course of nature, may have been wrought. To the extent of his appropriation his supply will be measured by the waters naturally flowing in the stream and its tributaries above the head of his ditch, whether those waters be furnished by the usual rains or snows, by extraordinary rain or snow fall, or by springs or seepage which directly contribute." 22 It is said, "The appropriator took the water with the right to have the stream flow as it was wont to flow," 23 which is as strict a state- ment as the "aqua currit et debet currere ut currere solebat" of riparian rights. And he can insist on the flow, though he has 16 Bosjlino v. Giorgetta, 20 Colo. is below considered. Infra, sec. 310 et App. 33*8, 78 Pae. 612. Cf. Schodde seq. v. Twin Falls Co., 161 Fed. 43, 88 C. 19 i n f ra sec 337 C. A. 207, holding that an appro- ' 20 ^ ' ' priator has no property in the cur- rent," but the real effect of the :1 Infra, sec. 347. See, also, infra, decision involves a different matter sec - 825. elsewhere considered. Infra, sec. 310 22 Beaverhead etc. Co. v. Dillon et seq. etc. Co., 34 Mont. 135, 85 Pac. 880. 17 Hoffman v. Stone, 7 Cal. 49, 4 23 Morris v. Bean, 146 Fed. 435. Morr. Min. Rep. 520. But see Schodde v. Twin Falls etc. 18 A tendency to modify this rule Co. (Idaho), 161 Fed. 43, 88 C. C. A. that priority gives an exclusive right 207. 292 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 279 also rights on another stream which would supply him he can- not be made to exhaust his rights on one before using the other. 24 This exclusive right of the prior appropriator to have the natural flow to the extent of his appropriation does not, how- ever, enable him to insist upon receiving it in the natural chan- nel; the upper appropriator may instead give it to him by returning it into his ditch above his place of use rnot necessarily into the stream above the head of his ditch if he gets the quan- tity to which he is entitled, thereby substantially permitting the substitution of an artificial flow if it can be done without dam- age 25 (provided that the party substituting an artificial flow sus- tains the burden of proof (which is on him) that he will not, now or in the future, damage the prior appropriator; for if he does not plead and prove this, or if his artificial plan has any element of doubt, it will be unlawful). 1 The prior appropriator further has no right to waters brought into the stream exclusively by the labor or artificial works of another man who has not intended to abandon them, for such artificial increments are not part of the natural flow ; 2 nor has he a right to any flow where, from natural causes, such as drying up, the stream if undisturbed would not reach him anyway 3 (provided, however, that where, in the absence of surface flow to him, there is still an underflow 24 Norman y. Corbley, 32 Mont. 195, Point etc. Co. v. Moroni etc. Co., 21 79 Pac. 1059. Utah, 229, 61 Pac. 16; Howcroft v. 25 Pomona W. Co. v. San Antonio Union etc. Co., 25 Utah, 311, 71 Pac. W. Co. (1908), 152 Cal. 618, 93 Pac. 487; Booth v. Trager, 44 Colo. 409, 99 881; Wiggins v. Museupiabe etc. Co., Pac. 60; Union etc. Co. v. Dangberg 113 Cal. 182, 54 Am. St. Rep. 337, (C. C. Nev.), 81 Fed. 73; City of Tel- 45 Pac. 160, 32 L. R. A. 667; Huffner luride v. Blair, 33 Colo. 353, 80 Pac. v. Sawday (1908), 153 Cal. 86, 94 1053; Fuller v. Sharp, 33 Utah, 431, Pac. 424, dictum; Fuller v. Sharp, 33 94 Pac. 817; Duckworth v. Watson- Utah, 431, 94 Pac. 817; Harrington ville W. Co., 150 Cal. 520, 89 Pac. v. Demarris, 46 Or. Ill, 77 Pac. 603, 336; Guttierrez v. Wege, 145 Cal. at 82 Pac. 14, 1 L. R. A., N. S., 756; 735, 79 Pac. 449; the latter two ap- Chandler v. Austin, 4 Ariz. 346, 42 plying the same rule to riparian own- Pac. 483. ers. Contra, Morris v. Bean, 146 Fed. 1 Miller v. Bay Cities W. Co., 157 436, saying that it is no defense that Cal. 256, 107 Pac. 115, 27 L. R. A., water would not reach plaintiff any- N. S., 772 ; Huffner v. Sawday, 153 way, if defendant's diversion is a con- Cal. 86, 94 Pac. 424. tributing cause. Such a defense, the 2 Supra, sees. 38, 61. court says, is quite common, as old as 3 Beaverhead etc. Co. v. Dillon etc. irrigation, and perhaps as old as tres- Co., 34 Mont. 135, 85 Pac. 880; Paige pass itself. See, also, Petterson v. v. Rocky Ford etc. Co., 83 Cal. 84, Payne, 43 Colo. 184, 95 Pac. 301, 21 Pac. 1102, 23 Pac. 875; Raymond holding that there is a presumption v. Wimsette, 12 Mont. 551, 33 Am. St. against the validity of the defense. Rep. 604, 31 Pac. 537; Cruse v. Me- Compare Perry v. Calkins (Cal., 1911), Cauley (Mont), 96 Fed. 373; West 113 Pae. 136. 280 Ch. 13. ELEMENTS OF EIGHT. (3d ed.) 293 or "subflow" in the dry bed, the upper surface diversion must not diminish the underflow, 4 and also provided the evidence that the water would all naturally disappear before reaching plaintiff is clear and convincing, 5 of which defendant has the burden of proof). 6 There is no right in the natural flow such as would allow the ditching back of a stream that had shifted its course naturally ; 7 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. 8 The right to exclusive use carries with it such right to exclu- sive flow as is necessary to preserve the appropriator 's use with- out damage to his use ; but is not violated by any act that does not interfere with his use of the water. The right to the flow is subordinate to the right of use, and cannot exceed it. "The prin- ciple, in brief, is this: That where one is entitled to the use of a given amount of water at a given point, he may not complain of any prior use made of the water which does not impair the quan- tity or quality to which he is entitled, and, on the other hand, he may not lay claim to any excess of water over the amount to which he is entitled, however it may be produced." 9 Under the possessory origin of the law of appropriation, the right to the natural flow was the main thing, 10 but the change to a "particular use'* system has put first the specific use made of the water, and subordinates the right of flow to the right of use. To that extent, however, the right of flow remains exclusive of later appropriators. (3d ed.) 280. Distinguished from Right to a Ditch. The water- right is entirely distinct from the right to the ditch, canal, or other structure in which the water is conveyed. The latter is an easement over land. The former is an incorporeal hereditament 4 Huffner v. Sawday, 153 Cal. 86, 7 Paige v. Rocky etc. Co., 83 Cal. 94 Pac. 424; Petterson v. Payne, 43 84, 21 Pac. 1102, 23 Pac. 875; Wholey Colo. 184, 95 Pac. 301. v. Caldwell, 108 Cal. 95, 49 Am. St. , A1 r , T , ., p , Rep. 64, 41 Pac. 31, 30 L. R. A. 820. ^ V> ' 8 140 P 119 etc - Co - v - P ell > 34 Cal. 140, 93 Pac. 1112. ' 6 Petterson v. Payne, 43 Colo. 184, Rep. 253. 95 Pac. 301; Miller v. Bay Cities W. 9 Pomona W. Co. v. San Antonio Co., 157 Cal. 256, 107 Pac. 115, 27 W. Co. (1908), 152 Cal. 618, 93 Pac. L. R. A., N. S., 772; Huffner v. Saw- 881. day, 153 Cal. 86, 94 Pae. 424. 10 Supra, sec. 139. 294: (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 281 sui generis, in the flow and use .of the stream as a natural re- source, and not an easement. The water-right and ditch-right may be conveyed separately, or the one may exist without the other. An abandonment of one does not necessarily include abandonment of the other. One may, however, be appurtenant 'to the other. The matter is discussed and cases cited at length later. 11 (3d ed.) 281. Independent of the Mode of Enjoyment. The posses- sory origin of the law of appropriation of water has its strongest survival in the rule that the right is independent of ownership or possession of any land, and independent of the manner, means, place or purpose of use or of point of diversion. Upon the pub- lic domain where the law of appropriation arose, no private claimant originally owned any land all were asserted to be but trespassers against the United States. Besides, the purposes for which appropriations were made in the early days that is, dis- tribution to miners required the taking of water to distant lands occupied by strangers to the appropriator. Possession of a stream on public land being the right (the United States per- mitting absolute freedom in the matter), that possession could be shifted from place to place or from purpose to purpose, and the point of diversion moved up or down stream, all these things being done on unoccupied public land. 12 This has had strong survival, and as the authorities generally stand to-day, the water may be taken from and over and be used on distant lands owned entirely by the government or (with their permission) by other private parties, as was and is fre- quently the case with canal companies. This is a distinguishing feature of the law of appropriation. Appropriation is the doc- trine of separate ownership of land and water. 13 The original case of Irwin v. Phillips u was such a case. Title to land is in no way concerned. 15 This is now accepted without comment in California. We may also quote the following from a Montana case : 16 " The legal title to the land upon which a water- right 11 Infra, sees. 455, 456. 15 Santa Paula etc. Works v. Per- 12 Supra, sec. 139. alta, 113 Cal. 38, 45 Pac. 168. 13 Crawford etc. Co. v. Hathaway, 16 Smith v. Denniff, 24 Mont. 20, 60 Neb. 754, 84 N. W. 273. 81 Am. St. Rep. 408, 60 Pac. 398, 50 14 5 Cal. 140, 63 Am. Dec. 113, 15 L. R. A. 741. Morr. Min. Rep. 178. 281 Ch.13. ELEMENTS OF RIGHT. (3ded.) 295: acquired by appropriation made on the public domain is used or intended to be used in no way affects the appropriator's title to the water-right." In a recent Utah case 17 it is said: "The exclusive right to use certain waters in this State has always been independent of, and separate from, the ownership of the land on which the water was used or the ownership of any land. 18 The authorities generally support this view." 19 An important application of the rule is in the recent matter of interstate streams, where it is held that an appropriation, be- ing independent of the place of use, may (in the absence of express statutory prohibition) be made in one State for use in any other State. 20 The rule has been chiefly litigated in regard to change of place of use, and sale of the water-right for use on different land, and citation of authorities is postponed to a later section, 21 except for a few to show the prevailing acceptance in the courts of the rule that the appropriation is independent of title or possession of any land. 22 17 Patterson v. Ryan (Utah), 108 Pac. 1118, Mr. Justice Frick. is Citing Sullivan v. Mining Co., 11 Utah, 438, 40 Pac. 709, 30 L. R. A. 186. w Citing this book, 2d ed., sec. 63. 20 Infra, sec. 340 et seq. 21 Infra, sec. 508 et seq. 22 California. Calkins v. Sorosis etc. Co., 150 Cal. 426, 88 Pac. 1094. Colorado. Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 Pac. 313; Town of Sterling v. Pawnee etc. Co., 42 Colo, 421, 94 Pac. 341, 15 L. R. A., N. S., 238; Davis v. Randall, 44 Colo. 488, 99 Pac. 322. Idaho. Hard v. Boise etc. Co., 9 Idaho, 589, 76 Pac. 331, 65 L. R. A. 407. See Mahoney v. Neiswanger, 6 Idaho, 750, 59 Pac. 561. Montana. Hays v. Buzard, 31 Mont. 74, 77 Pac. 423; Smith" v. Den- niff, 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398, 56 L. R. A. 741. Nevada. Union etc. Co. v. Dang- berg, 81 Fed. 73. Oregon. Nevada etc. Co. v. Ben- nett, 30 Or. 59, 60 Am. St. Rep. 777, 45 Pac. 472. It was held in Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1098, 102 Pac. 728, that a bona fide intention to devote water to a beneficial use may comprehend the use to be made by or through other per- sons and upon lands other than those of the appropriator. Utah. Patterson v. Ryan (Utah), 108 Pac. 1118; Sowards v. Meagher (Utah), 108 Pac. 1113. Washington. Thorpe v. Tenem Ditch Co., 1 Wash. 566, 20 Pac. 588. But see contra, Avery v. Johnson (Wash.), 109 Pac. 1028. Wyoming. Johnston v. Little Horse etc. Co., 13 Wyo. 208, 110 Am. St. Rep. 986, 79 Pac. 22, 70 L. R. A. 341 ; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pae. 210; Frank v. Hicks, 4 Wyo. 502, 35 Pac. 475. 1025. See, also, Hawaiian Com. etc. Co. v. Wailuku etc. Co., 15 Hawaii, 677; Pomeroy on Riparian Rights, sees. 46, 92; Kinney on Irrigation, sec. 156; Gould on Waters, sec. 230; 17 Am. & Eng. Ency. of Law, 497, and cases collected in 65 L. R. A. 407, note. 296 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 282 (3d ed.) 282. Same Recent Tendency to the Contrary. The neces- sity for taking the water to distant lands without returning it to the stream and making the right to the water independent of ownership of riparian land aided in giving rise to the rule that the right is independent of ownership of any land. Use on dis- tant land is hence characteristic. This characteristic use on distant lands involves loss of the efficiency of the water and is a necessary evil of the law of appropriation. In one case the loss by seepage in transportation was so great as to damage the lands passed over. 23 Under the rule of riparian rights at common law the right to use the water is annexed to riparian lands and dependent upon title thereto ; and the law of appropriation was a protest against fastening the right to any land; conforming to the possessory origin of the law of appropriation and necessities of miners in the early days in California, when the use had to be made on the public domain and in regions where the mines were in the mountains often away from the stream valley, and changed from place to place as old claims gave out and new ones were discovered. But to-day it is sometimes thought unfortunate in its application to irrigation, which can be made best in the valleys near the stream, orj" at all events, may be permanently carried on in a fixed location. The recent legislation, conse- quently, is attacking this principle, and in the arid States (as an instance of the general change now going on from a possessory to a use system) 24 substituting the principle "that the right to use the water for irrigation inheres in the land irrigated," and is inseparable therefrom, or separable only with the permission of the State Engineer and publication of notice. 25 President 23 Stuart v. Noble etc. Co., 9 Idaho, Nevada. Stats. 1905, p. 66. But 766, 76 Pae. 255. see Stats. 1909, p. 31. 24 Supra, sec. 139. jVe; Mexico. Stats. 1907, p. 71, c.. 25 Arizona. Gould v. Maricopa etc. 49, sec. 44. Co., 8 Ariz. 429, 76 Pac. 598; Slosser w^^.j, T^T.,,*,, o* 1 -tan* *A L ,, T.. ' . ' n~ c C r North Dakota. Stats. 1905. c. 34, v. Salt River etc. Co., 7 Ariz. 376, 65 9 o ,- n Pac 332 ' Oklahoma. Stats. 1905, p. 274, c. Idaho. Laws 1903, p. 223; Laws 1 sees 21 30 19 7 ^ 5 f' %i alS0 ' ? C de8 ' Oregon.- -Stats. 1900,0. 216, see. 65. sec. 3240; Laws 1901, sec. 9, b. South Dakota. Stats. 1907, p. 373, Nebraska. Farmers' Irr. Dist. v. c jgg secs 31 49 Frank 72 Neb. 136 100 N. W. 286; ' ^_g^ 1905, c. 108, secs. 63, Comp. Stats., sec. 6436. 60> See> alg0j Comp ' Lawg ' flf 282 Ch. 13. ELEMENTS OF EIGHT. (3d ed.) 297 Roosevelt said in a message: * "In the arid States the only right to which water should be recognized is that of use. In irriga- tion this right should attach to the land reclaimed and be inseparable therefrom." The National Irrigation Congress 2 adopted a memorial declaring among other things that the right to the use of water for irrigation should inhere in the land irrigated. Is this an attempt at a compromise between appro- priation 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 appropria- tion is that the appropriation is independent of title to or pos- session of any lands. Another evidence of a tendency to depart from the older rule arises in connection with the distribution of water to public uses in Colorado. Under a tendency to public ownership of irri- gation systems, consumers are regarded in Colorado as owning the appropriations in the streams rather than the company, and one ground for such ruling is that in the connection mentioned the right is held to be dependent upon the place where the use is made by the consumer. 3 Here, again, the law is in a state of development, for the older view is still frequently taken in this connection also ; for example, the supreme court of the United States has said that corporations diverting water need not own any land, nor ne d they be a combination of landowners. 4 And recent cases in other jurisdictions have ruled that the rights of canal companies or any appropriator remain unaffected by the fact that they do not own the land where the use is made. 5 Another modification and a return to the principle, in this respect, of riparian rights, appears in the New Mexico statute 8 sec. 1288x8 and 24, amended in Laws 4 Gutierres v. Albuquerque etc. Co., 1909, c. 62, p. 84. 188 U. S. 545, 23 Sup. Ct. Rep. 338, Washington. Avery v. Johnson 47 L. Ed. 588. See Montezuma Co. v. (Wash.), 109 Pac. 1028. Smithville Co., 218 U. S. 371, 31 Sup. Wyoming, in 1909, prohibited change Ct. Rep. 67, 54 L. Ed. 1074. absolutely. Laws 1909, c. 68, p. 112, 5 Nevada D. Co. v. Bennett, 30 Or. sec. 1. .59, 60 Am. St. Rep. 777, 45 Pac. 472; See statutes of other States in sees. 'Hough v. Porter, 51 Or. 318, 95 Pac. 506, 509, infra, and in Part VIII be- 732, 98 Pac. 1098, 102 Pac. 728; low. Sowards v. Meagher (Utah), 108 Pac. 1 To the 57th Congress, 1st Sess. 1113. See generally infra, sec. 395 et (Cong. Rec., vol. 35, pp. 85, 86). seq. (application to use), and sees. 2 Ninth Session held at Chicago, 1324, 1338 et seq. (consumers as ap- Tllinois, November 21-24, 1900. propriators). 3 Infra, see. 1338 et seq. 6 Laws 1907, c. 49, p. 71. 5298 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 283 prohibiting an appropriation for use beyond the watershed of the stream from which the water is taken; and a recent Idaho decision that unused water must be returned to the stream from which taken so far as not inconsistent with the use for which appropriated, even though there be no appropriators, but only riparian proprietors, on the stream below. 7 Likewise, some statutes provide that an appropriator must return any surplus water to the stream from which he diverted it, 8 which, so far as It applies (if it does so apply) to prior appropriators, is a great change, as hitherto the law has been that, being independent of place of use, the water may be taken from use under one watershed to use in an entirely different watershed. 9 Consequently, while the general rule to-day maintains the original possessory basis of the independence of the right upon its mode of enjoyment, yet the transition which the law of appropriation is now undergoing from a possessory to a specific use system is causing numerous departures. 10 (3d ed.) 283. Real Estate. The right to the flow and use of water, being a right in a natural resource, is real estate. 11 7 Hutchinson v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059. 8 Nev. Stats. 1907, p. 30, sec. 4; Mont. Stats. 1907, p. 109; Cobbey's Nebraska Stats., sec. 6813. Such is also the effect of Anderson v. Bass- man, 140 Fed. 14. In a Colorado ease Coffin v. Left Hand Ditch Co., 6 Colo. 443 the ap- pellee claimed to have appropriated certain -water from St. Vrain Creek, through its diversion by means of a ditch which conducted the water to the James Creek, thence along the bed of the same to Left Hand Creek, where it was again diverted by lateral ditches, and used to irrigate land ad- jacent to the last-named stream. It was contended that such appropriation was unlawful. But the court upheld it. 10 See supra, sec. 139, transitionary state of the law. .11 California. Civ. Code, sec. 801; Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140, 4 Morr. Min. Rep. 513; California etc. Co. v. County of Los Angeles (1909), 10 Cal. App. 185, 101 Pac. 547; Pacific Club v. Sausalito Co., 98 Cal. 487, 33 Pac. 322; Fudickar v. East Riverside Irr. 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, and cases below cited. Colorado. Travelers' etc. Co. v. Childs, 25 Colo. 360, 54 Pac. 1020; Davis v. Randall (1909), 44 Colo. 488, 99 Pac. 322; Bates v. Hall, 44 Colo. 360, 98 Pac. 3; Wyatt v. Larrimer & Weld etc. Co., 18 Colo. 298, 36 Am. St. Rep. 280, 38 Pac. 144; Talcott v. Mastin, 20 Colo. App. 488, 79 Pac. 973; Burnham v. Freeman, 11 Colo. 601, 19 Pac. 761. Idaho. Rev. Stats. 1887, sec. 2825; Knowles v. New Sweden Irr. Dist. (1909), 16 Idaho, 217, 101 Pac. 81; Taylor v. Hulett, 15 Idaho, 265, 97 Pae. 37, 19 L. R. A., N. S., 535; Ada Co. etc. Co. v. Farmers' etc. Co., 5 Idaho. 793, 51 Pac. 990, 40 L. R. A. 485; McGinness v. Stanfield, 6 Idaho, 372, 55 Pae. 1020; Hall v. Black- 283 Oh. 13. ELEMENTS OF RIGHT. (3d ed.) 299 In Hill v. Newman 12 the court says: "From the policy of our laws it has been held in this State to exist without private ownership of the soil upon the ground 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 always been treated, as a right running with the land, and as a corporeal privilege bestowed upon the occupier or appropriator of the soil; and as such, has none of the characteristics of mere personalty." The court held that a justice of the peace has no jurisdiction over an action for diversion of water because it was an action concerning title to real estate. 13 The statute of frauds, con- cerning conveyances of real estate, applies to it, and transfers must be by deed. 14 The statute of limitations concerning land applies to it. 15 So do the recording statutes, as between suc- cessive conveyances. 16 The right to have water flow from a river into a ditch is real property. 17 A wrongful diversion of water is an injury to real property. 18 The right to take water from a river and conduct it to a tract of land is realty. 19 The right to have water flow through a pipe from a reservoir to and upon a tract of land is an appurtenance to the land. 20 An undivided interest in a ditch and in the right to water flowing therein is real property. 21 And where one person has a right to the flow of water and another has the right to have a part man, 8 Idaho, 272, 68 Pac. 19. But 743; Dorris v. Sullivan, 90 Cal. 279, a mere permit from the State En- 27 Pac. 216; Hayes v. Fine, 91 Cal. gineer is not real property. Speer v. 391, 27 Pac. 772; Bates v. Hall, 44 Stephenson (1909), 16 Idaho, 707, 102 Colo. 360, 98 Pac. 3. See infra, see. Pac. 365. 555 et seq., parol sale. Montana. Hale v. Jefferson County, 15 Yankee Jim etc. Co. v. Crary, 39 Mont. 137, 101 Pac. 973 (but see 25 Cal. 504, 85 Am. Dec. 145, 1 Morr. Helena W. W. Co. v. Settles, 37 Mont. Min. Rep. 196, and see infra, sec. 579 237, 95 Pac. 838). et seq. Nevada. Rickey L. & C. Co. v. 16 Partridge v. McKinney, 10 Cal. Miller & Lux, 152 Fed. 14, 81 C. C. 181, 1 Morr. Min. Rep. 185; Lyles v. A. 207. Pen-in, 119 Cal. 264, 51 Pac. 332. Utah. Conant v. Deep Creek Co., Infra, sec. 542. 23 Utah, 627, 90 Am. St. Rep. 721, " Lower Kings River W. D. Co. v. 66 Pac. 188. Kings River & F. C. Co., 60 Cal. 410. 12 5 Cal. 445, 63 Am. Dec. 140, 4 18 Last Chance etc. Co. v. Emi- Morr. Min. Rep. 513. grant D. Co., 129 Cal. 278, 61 Pac. 13 A somewhat similar decision ap- 960. pears in Pacific etc. Club v. Sausalito 19 South Tule etc. Co. v. King, 144 etc. Co., 98 Cal. 487, 33 Pac. 322. Cal. 454, 77 Pac. 1032. 14 Griseza v. Terwilliger, 144 Cal. 20 Standard v. Round Valley Co., 456, 77 Pac. 1034; Smith v. O'Hara, 77 Cal. 403, 19 Pac. 689. 43 Cal. 371, 1 Morr. Min. Rep. 671; 21 Hayes v. Fine, 91 Cal. 398, 27 Oneto v. Restano, 78 Cal. 374, 20 Pac. Pac. 772. 300 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 284 of such water flow to his land for its irrigation, the right of the latter is real property. 22 Ditches and water-rights may be sold on execution as real property. 23 An action to quiet title as for real property is proper. 24 And an action to settle rights is one to quiet title to realty. 25 In Idaho water-rights are declared real estate by statute. 1 As it is real property, an action to quiet title thereto cannot be brought by an administrator. 2 It may be acquired by descent, as real property. 3 It is a vested right, protected by the constitution, 4 and capable of estimation in money. 5 That the usufructuary right to the flow and use of a natural stream by appropriation is real property is fully recognized. 6 A permit from the State Engineer to make an appropriation is not, however, real property, not being an appropriation, but only a consent to acquire one. 7 The corpus of water, as distinguished from its usufruct in the natural resource, is not real property. 8 (3d ed.) 284. Same Taxation. For convenience, we state here some matters regarding taxation of ditches and water-rights. Water-rights are real estate for the purposes of taxation, 9 but should not be assessed separately from the lands to which (if 22 Dorris v. Sullivan, 90 Cal. 286, 4 Town of Sterling v. Pawnee etc. 27 Pac. 216; Farmers' etc. Co. v. New Co., 42 Colo. 421, 94 Pac. 339, 15 L. Hampshire etc. Co. (1907), 40 Colo. R. A., N. S., 238. See, also, Lamar 467, 92 Pac. 290. See, also, Stanis- ' etc. Co.. v. County etc. Co., 26 Colo, laus Water Co. v. Bachman (1908), 370, 77 Am. St. Rep. 261, 58 Pac. 152 Cal. 716, 93 Pac. 858, 15 L. R. 600; Mohl v. Lamar etc. Co. (Colo.), A., N. S., 359. 128 Fed. 776; Knowles v. New 23 Gleason v. Hill, 65 Cal. 18, 2 Sweden Irr. Dist., 16 Idaho, 217, 101 p ac 413 Pac. 81; Miller v. Wheeler (1909), ','., ,, , , . oo 54 Wash. 429, 103 Pac. 641, 23 L. R. n i ^n7p C> in Montdair ' 32 A., N. S., 1065; Montpelier Co. v. Colo. 420, 76 Pac. 1050. Montpelier' (Idaho, 1911), 113 Pac. 25 Taylor v. Hulett, 15 Idaho, 265, 74L 97 Pac. 37, 19 L. R. A., N. S., 535. s'waha-Lewiston etc. Co. v. Lewis- 1 Idaho Rev. Stats. 1887, sec. 2825; ton Co. (Idaho), 158 Fed. 137. Boise etc. Co. v. Stewart, 10 Idaho, 6 As to when the corpus of water 38, 77 Pac. 32, 321; Ada etc. Co. v. is personal property, see supra, sec. Farmers' etc. Co., 5 Idaho, 793, 51 35. Pac. 990, 40 L. R. A. 485; McGinness 7 Speer v. Stephenson (1909), 16 v. Stanfield, 6 Idaho, 372, 55 Pac. Idaho, 707, 102 Pac. 365. 1020; Hall v. Blackman, 8 Idaho, 272, 8 Supra, sec. 1 et seq. As to when 68 Pac. 19 ; Taylor v. Hulett, 15 it is personal property, see supra, sec. Idaho, 265, 97 Pac. 37. 35. 2 Travelers' Ins. Co. v. Childs, 25 9 Authorities supra; also Cal. PoL Colo. 360, 54 Pac. 1020. Code, sec. 3663; contra, Helena W. 3 Hall v. Blackman, 8 Idaho, 272, Co. v. Settles, 37 Mont. 237, 95 Pac. 68 Pae. 19. 838. 283 Ch. 13. ELEMENTS OF EIGHT. (3d ed.) 301 any) they are appurtenant. 10 In California, the Political Code provides: 11 "Water ditches constructed for mining, manufactur- ing or irrigation purposes, and wagon and turnpike toll roads must be assessed the same as real estate by the assessor of the county, at a rate per mile for that portion of such property as lies within his county. ' ' 12 Water actually reduced to possession and contained in waterworks may be taxed as personalty, 13 but not so the water-right in the stream as distinguished from the corpus of the water. 14 Irrigation works are exempt from taxation in some States. 15 Under the Idaho and Colorado exemption it is held that ' ' In order to have shown that this ditch was exempt, it was necessary to show that the waters thereof were used exclusively upon the lands owned by the owner of the ditch, or to have shown that, in fact, the ditch and right of way had never been assessed. ' ' 16 Wells have been held taxable as real estate. 17 (3d ed.) 285. A Freehold. A water-right by appropriation is not only real estate, but has all the dignity of and is an estate of fee simple, or a freehold. It was not always accepted as such in the early days, however. This historical denial that the estate was a freehold we have already traced at much length in the historical chapters; how, before the act of Congress of 1866, it was. strenuously urged that the appropriators had no right at 10 Hale v. Jefferson County (1909), 1908, sees. 5545, 5546. See Empire 39 Mont. 137, 101 Pac. 973; Colo. etc. Co. v. Rio Grande etc. Co., 21 Const., art. 10, sec. 3. See. Hart v. Colo. 249, 40 Pac. 449 ; Murray v. Plum, 14 Cal. 148, taxation of flume. Montrose County, 28 Colo. 430, 65 11 Sec. 3663. Pac. 26. 12 See, also, infra, sec. 590, ad- Idaho. Laws 1899, p. 221; Rev. verse use. As to place of taxation Stats. 1887, sec. 4043. See Swank v. of water-rights, see 22 Harvard Law Sweetwater Co., 15 Idaho, 353, 98 Review, 233, note; Miller v. Madera Pac. 297. etc. Co., 155 Cal. 59, 99 Pac. 502, Nebraska. Laws 1895, c. 69, p. 22 L. R. A., N. S., 391. 266, sec. 61; Cobbey's Ann. Stats., is Irrigation Co. v. Ogden City, 8 sec. 6815. Utah, 494, 33 Pac. 135. New M exico.- -Stats. 1905, p. 270, i-t Supra, c. 2. But in Helena W. sec. 8. W. Co. v. Settles, 37 Mont. 237, 95 Utah. Const., art. 13, sec. 3. Pac. 838, the water-right was also This list is probably not complete, held taxable as personalty under Mon- 16 gwank y gweetwater etc c 15 tana statutes. The decision, aside Idah 353 9g p a(J 297> Coloradc from any special statute, would be c&ses ^^^ against authority and principle. 15 Arizona. Stats. 1907, p. 170. i7 California etc. W. Co. v. Los Colorado. To some extent. See Angeles (1909), 10 Cal. App. 185, Const., art. 10, sec. 3; Rev. Stats. 101 Pac. 547. 302 (3d ed.) Pt. III. THE LAW OF PEIOK APPEOPEIATION. 2SG all, but were trespassers on the public lands, the United States being the real owner of the right to the water; how the right hence took on many features of a possessory character ; 18 how the early cases nevertheless gave to the rights of the pioneers all the recognition and force of freehold estates ; 19 and how Congress ratified this by the act of 1866. 20 All doubts were put at rest by that act; and ever since all the freehold remedies are allowed the appropriators in the courts, and *heir rights have ever since had all the attributes of freehold realty. As said in a very late case: "The first appropriator, to the extent of his appropriation when completed and established, is the owner as against all the world." 2 * (3d ed.) 286. Conditional. Although a freehold, the right is con- ditional, in the nature of a determinable fee; a feature in common with other rights which have grown out of the possessory system on the public domain, such as mining claims before patent. As to the possessory rights on public land generally, it was said: "Our courts have given them the recognition of legal estates of freehold, and so, to all practical purposes if we except some doctrine of abandonment, not, perhaps, applicable to such estates unquestionably they are." 22 Though to-day elevated to the dignity of real estate, water-rights of appropriation still retain the impress of their origin, and were (and frequently are) called 18 Supra, sec. 139. appropriation, as though the estate There was some early contention were still the mere possessory one of a that this mere possessory estate, be- trespasser, and not a fee. (Infra, ing without actual title to the realty sec. 555 et seq.) itself (which belonged to the United i Supra, see. 89 et seq. See es- States) was in fact personalty. There pecially Merritt v. Jucld, 14. Cal. 64, was much contention that, as per- 6 Morr. Min. Rep. 62. sonalty, a justice of the peace had 20 Supra, sec. 92 et seq. jurisdiction over actions concerning 21 Sowards v. Meagher (Utah), 108 mining claims (Yale on Mining Claims Pac. 1113. and Water Rights, page 115) ; but In the opinions of Mr. Justice Shaw, this was finally given up (Ibid.) ; and in California appropriations are some- as to water-rights it was denied as times still said to be mere possessory early as Hill v. Newman, quoted rights and not freehold; but only in supra, sec. 283, saying that a water- one case was this attempted to be right was not personalty because the applied in actual decision, and refer- policy of the law treated it as a free- ence is made to a preceding chapter hold. Note, however, a curious sur- where that case (Duckworth v. Wat- vival in some rulings that the stat- sonville Co., 150 Cal. 520, 89 Pac. ute of frauds does not (in some re- 3381) is discussed. Siqn-a, sec 246. spects) apply; that a parol sale -- Merritt v. Judd, 14 Cal. 64, 6 operates as an abandonment of the Morr. Min. i?ep. 62 287 Ch. 13. ELEMENTS OF RIGHT. (3d ed.) 303 a privilege, license or franchise 23 (under the "California" theory by grant from the United States as proprietor of the public lands; under the Colorado or Wyoming theory, by permit from the State) ; subject to the conditions of the local law (in the early California days, of the customs of miners) which insist upon forfeiture or abandonment upon failure to make beneficial use. And some recent Water Codes name the final certificate issued to the appropriator a "license." 24 This franchise, privilege or license is conditioned on beneficial use of the water; a failure of this condition causes a loss of the right. 25 The conditions had their origin in the customs of the California miners, but custom has long been superseded by decision and statute; and custom has no more bearing in this subject to-day than in the general law of real estate. 1 (3d ed.) 287. An Incorporeal Hereditament. A water-right by appropriation is not within the term "land." 2 It is not sub- ordinate to any land, but independent thereof and of equal dignity therewith, and hence not an easement. 3 Often it is called an easement, 4 but it is submitted that such is not the better view. 5 Being but a usufruct, or privilege of flow and use, it is incor- poreal. 6 It is held to be incorporeal in Swift v. Goodrich, 7 deciding consequently that contracts concerning water-rights 23 E. g.. Conger v. Weaver, 6 Cal. 3 Yale on Mining Claims and 548, 558, 65 Am. Dee. 528, 1 Morr. Water Eights, 204, 215; and cases Min. Eep. 594; Mitchell v. Amador cited infra, sec. 456. Canal etc. Co., 75 Cal. 464, 483, 17 * E. g., Smith v. Hawkins, 110 Cal. Pac. 246; Natoma etc. Water Co. v. 122, 42 Pac. 453; Smith v. Denniff, Hancock, 101 Cal. 42, 31 Pac. 112, 24 Mont. 20, 81 Am. St. Rep. 408, 60 35 Pac. 334. Pac. 398, 50 L. R. A. 741; Cal. Civ. 24 Infra, sec. 420. Code, 801. 25 Infra, sees. 478, 567 et seq. 5 See, also, Lux v. Haggin, 69 Cal. 1 See, however, as to the rule in 255, 293, 10 Pac. 674. A perpetual Oregon, Washington and Alaska, water-right is not a "lien and encum- infra, sees. 635, 1430. brance." Nampa Irr. Dist. v. Gess, The same is, to a considerable ex- 17 Idaho, 552, 106 Pac. 993. tent, true in the mining law, where 6 In Hill v. Newman, 5 Cal. 445, 63 miners' customs and regulations are Am. Dec. 140, 4 Morr. Min. Rep. 513, now almost wholly superseded by stat-. quoted in a preceding section, it is ute and decision. Costigan on Min- railed a corporeal hereditament. See ing Law, pp. 23, 24. Yale on Mining Claims and Water 2 Mt. Carmel Fruit Co. v. Web- Rights, pp. 204, 215; Helena W. Co. ster, 140 Cal. 183, 73 Pac. 826; Helena v. Settles etc.' Co., 37 Mont. 237, 95 W. Co. v. Settles etc. Co., 37 Mont. Pac. 838. 37, 95 Pac. 838. 7 70 Cal. 103, 11 Pac. 561. 304 (3ded.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 288,289 cannot create the relation of landlord and tenant, as, being incor- poreal, no tenancy can exist therein. 8 (3d ed.) 288. Definition. From these characteristics, the following definition, it is suggested, may be deduced : A water-right of appropriation is real estate, independent of the ditch for carrying the water, and independent of ownership or possession of any land and independent of place of use or mode of enjoyment, whereby the appropriator is granted by the government the exclusive use of the water anywhere so long as he applies it to any beneficial purpose; and it is an incorporeal hereditament, solely usufructuary, not conferring ownership in the corpus of the water or in the channel of .the stream. This definition, being made by consolidating the elements already separately considered, is in each element supported by the authorities. 9 (3d ed.) 289. Same. There is, however, some confusion in the use of the word "appropriation." This confusion occurs in statutes and decisions. There are at least eight different ways in which the word "appropriation" has been used in the law of waters. These are as follows: (1) A diversion on public land of a stream flowing wholly over public land, and, because a grant from the United States, constituting a freehold indefeasible usufructuary estate in the natural resource, good against riparian owners subsequently acquiring land, and good against the .world. This is the only 8 Was called incorporeal in Rickey Other definitions are given infra, etc. Co. v. Miller, 152 Fed. 14, 81 C. sec. 370, of which the following is an C. A. 207; Frank v. Hicks, 4 Wyo. example: "It has been repeatedly de- 502, 35 Pac. 475, 481, 1025. See, cided in this jurisdiction that an 'ap- also, Gutheil etc. Co. v. Montclair, propriation' consists of an actual di- 32 Colo. 420, 76 Pac. 1050, holding it version of water from a natural unnecessary in the case to decide stream, followed within a reasonable whether corporeal or incorporeal. time thereafter by an application n ... ,. , thereof to' some beneficial use." Another definition which we de- Windsor B Co- v> Lake g j Co duced elsewhere (supra, sec. 19) is: A 44 Colo 2U 98 Pac 729 . "Appro- water-right 1S a usufruct in a stream, iation is th ' e intent to tak a m . consisting in the right to have the ied , SQme physical demon- Avater flow so that some portion of it g^, J of the ^ tent ^ nd for some (which portion the law limits in var- wluable use/ , Larime r Co. Res. Co. lous ways) may be reduced to pos- v Peo le 8 Colo . 616 9 Pac> 794. session and be made the private prop- FoJ . statutorv definition in Wyom- erty of an individual." ^ see inf / e 289 Ch. 13. ELEMENTS OF EIGHT. (3d ed.) 305 proper sense in which the word can be (and usually is) used under the California doctrine. Properly speaking, the word "appropriation," as already set forth, denotes a freehold estate, or, as the California court has frequently said, "The term 'appropriation' as applied to the acquirement of the right to the use of water has in this State a statutory technical meaning," 10 and is confined to rights obtained on the public domain. (2) As denoting a diversion of waters flowing on either public or private land under the Colorado doctrine. (3) As denoting in California wrongful possessions by disseisin, the possession of one mere trespasser or "disseisor" in respect to water on private land against another mere trespasser, both sub- ject to the paramount right of riparian owners (the disseisees) who have not yet objected to either a possession defeasible in toto by riparian owners at any time before prescription has arisen, and not a freehold. This is a revival of the idea that an appro- priation is but a possessory right against other mere possessors and not a freehold. 11 However, from an early period in the law, possessory rights on the public domain were regarded as freehold titles, and only such freehold estates acquired on public land are, as in the first use of the word above, properly called "appro- priations" in California. 12 (4) As, in California, denoting (possibly) surplus diversion over all possible present or future needs of an individual exist- 10 Alta etc. Co. v. Hancock, 85 Cal. ground basin (see infra, sees. 1106, 219, 20 Am. St. Eep. 217, 24 Pac. 1158), are spoken of in the court's 645; Merrill v. Southside Irr. Co., 112 opinion as "appropriators for use on Cal. 433, 44 Pac. 720. distant lands," although the court ex- 11 The possession of adverse tres- pressly declares in the Katz case passers between themselves has been (page 135), "There is no statute on called an "appropriation," though this subject, as there now is con- neither party has . an estate in fee cerning appropriations of. surface in the waters. Duckworth v. Watson- streams," and in the Burr case ex- ville etc. Co., 150 Cal. 520, 89 Pac. pressly decides that this kind of an 338, speaking of "common-law ap- "appropriation" is only a temporary propriation," meaning to designate one, terminable at the suit of any such a possessory right by disseisin. neighboring landowner who wants the See supra, sec. 246. water for use on his own land, and 12 In Katz v. Walkinshaw, 141 Cal. against whom, to the extent of his 116, 99 Am. St. Eep. 35, 70 Pac. 663, capacity of use, this kind of "appro- 74 Pac. 766, 64 L. E. A. 236, and Burr priation" is no appropriation at all in v. Maclay Eancho etc. Co. (1908), 154 the sense of permanent right. Infra, Cal. 428, 98 Pac. 260, the users of sec. 1156 et seq. See, also, Hudson v. underground water, in the one case Dailey (1909), 156 Cal. 617, 105 Pac. coming from artesian wells and in the 748. other case pumped from an under- Water Bights 20 306 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 289 ing plaintiff riparian owner. 13 This also is not a positive right, being defeasible by some other riparian owner who can show that he may possibly be damaged (though the present plaintiff cannot so show) ; and certainly defeasible by a sufficient number of riparian owners joining against it. It is in no true sense an "appropriation." (5) As applied to the corpus of the water instead of its usufruct, as where one dips a bucket in the stream he is sometimes said to "appropriate" that individual bucketful. 14 (6) As denoting a right acquired on eminent domain by forced purchase, making compensation. (7) Under the California constitution, water "appropriated" for distribution means water applied or devoted thereto, however acquired. 15 (8) As denoting the first step in acquiring a right. "Appro- priation is a much-abused word. It is often loosely spoken of as the preliminary step such as filing a notice, making a claim to the water or the like," 16 which is a wholly improper use of the word. 17 It is hence not surprising that confusion has occurred in the law. 18 290-298. (Blank numbers.) 18 Infra, sec. 822 et seq. 2 Cal. App. 186, 83 Pac. 267. See 14 Supra, sec. 30 et seq. infra, sees. 1264, 1265. 15 The constitution of California, 16 Morris v. Bean (Mont.), 146 article 14, section 1, declares that Fed. 425. "the use of all waters now appro- i7 Infra, sec. 376. See, also, Speor priated, or that 'may hereafter be ap- v. Stephenson, 16 Idaho, 707, 102 propriated for sale, rental, or dis- Pac. 365, as to a "permit." tribution, is hereby declared to be a 18 Because of this confusion there public use." The word "appro- is some tendency in very recent Cali- priated" here means "applied," or fornia cases to drop the word "ap- "devoted," and does not connote any propriation" and speak instead of special method or kind of acquisition. "paramount right" to indicate, against Merrill v. Southside Irr. Co., 112 Cal. riparian owners, rights by grant, con- 426, 44 Pac. 720; Hildreth v. Monte- demnation or prescription and public cito Co., 139 Cal. 29, 72 Pac. 395; land appropriations. Mahoney v. American Land etc. Co., 299 Ch. 14. SENIOR AND JUNIOE EIGHTS. (3d ed.) 307 CHAPTER 14. RELATION BETWEEN APPROPRIATORS. A. SENIOR RIGHTS. 299. Priority governs. 300. Whole stream. 301. In times of deficiency. B. JUNIOR RIGHTS. 302. Successive appropriation. 303. Same. 304. Same. 305. Periodical appropriations. 306. Temporary appropriations. 307. No partiality. 308. Preferences. 309. Pro-rating. C. CORRELATIVE RIGHTS BETWEEN APPROPRIATORS. 310. The principle of "unreasonable priority." 311. Some early rulings. 312. The dictum in Basey v. Gallagher. 313. Recent tendencies. 314. Same. 315. Conclusions. 316-317. (Blank numbers.) A. SENIOR RIGHTS. (3d ed.) 299. Priority Governs. Under the theory upon which the law of appropriation arose, and what is still the theory of the California doctrine, several appropriators on the same stream upon public land (to which alone does the doctrine of appropriation > apply in California) bear to each other the relation of successive grantees of parcels of one original holding, namely, of the sole right to the waters held by the United States as original owner. Like successive grants between private parties, where they con- flict, the later one can hold only what was left after the earlier one was made. The maxim, "Qui prior est in tempore, portior est in jure," is continually quoted in the early cases upon this sub- ject as governing; a maxim drawn from the law of successive 308 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 299 grants of real estate between private parties who took from the same owner subject to the possession of a prior grantee. 1 Under the theory of the Colorado doctrine, priority governs because the waters are, piibUci juris, and the possession and use of the first taker, whether on public or private land, gives a good title thereto against later comers on the principle that prior possession and use thereof is the only source of title. That priority gives the better right sometimes appears in the constitutions of the arid States. Water-rights by appropriation are frequently spoken of as "priorities." That priority governs is a fundamental principle of the law of appropriation. 2 A simple illustration of the doctrine of priority is the following : A settler living on unsurveyed public land at a spring used 1 In Lux v. Haggin the court says: "Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the. occupation or diversion of the waters as distinct from the lands, the State courts have treated the prior appro- priator of water on the public lands of the United States as having a better right than a subsequent appro- priator, on the theory that the ap- propriation was allowed or licensed by the United States." Lux v. Haggin, 69 Cal. 255, at 339, 10 Pac. 674. 2 Alaska. (For mining) Revenue etc. Co. v. Balderston, 2 Alaska, 363. California. Irwin v. Phillips, 5 Cal. 140, 63 Am. Dec. 113, 15 Morr. Min. Rep. 178; Conger v. Weaver, 6 Cal. 548, 65 Am. Dec. 528, 1 Morr. Min. Rep. 594; Kelley v. Natoma W. Co., 6 Cal. 106, 1 Morr. Min. Rep. 592; Tenney v. Miners' Ditch Co., 7 Cal. 335, 11 Morr. Min. Rep. 31; Thompson v. Lee, 8 Cal. 275, 1 Morr. Min. Rep. 610; Marius v. Bicknell, 10 Cal. 217; Butte etc. Ditch Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769, 4 Morr. Min. Rep. 552; Kimball v. Gearhart, 12 Cal. 27, 1 Morr. Min. Rep. 615; Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River Co., 13 Cal. 220, 1 Morr. Min. Rep. 626; Es- mond v. Chew, 15 Cal. 137, 5 Morr. Min. Rep. 175; Kidd v. Laird, 15 Cal. 161, 76 Am. Dec. 472, 4 Morr. Min. Rep. 571 ; Logan v. Driscoll, 19 Cal. 623, 81 Am. Dec. 90, 6 Morr. Min. Rep. 172; McKinney v. Smith, 21 Cal. 374, 1 Morr. Min. Rep. 150; Phoenix Water Co. v. Fletcher, 23 Cal. 481, 15 Morr. Min. Rep. 185; Weaver v. Lake Co., 15 Cal. 274, 1 Morr. Min. Rep. 642; Hill v. Smith, 27 Cal. 476, 4 Morr. Min. Rep. 597; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554, 4 Morr. Min. Rep. 604; Nevada Water Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685, 4 Morr. Min. Rep. 253; Nevada etc. Co. v. Kidd, 37 Cal. 283; Osgood v. Water Co., 56 Cal. 571, 5 Morr. Min. Rep. 37; Mitchell v. Mining Co., 75 Cal. 482, 17 Pac. 246; Ramelli v. Irish, 96 Cal. 214, 31 Pac. 41; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Wuteh- umna etc. Co. v. Pogue, 151 Cal. 105, 90 Pac. 362; Civ. Code, sec. 1414, "As between appropriators, the one first in time is first in right." Colorado. Const., art. 16, sec. 6; Coffin v. Ditch Co., 6 Colo. 443; Sieber v. Frink, 7 Colo. 149, 2 Pac. 901; Wheeler v. Irrigation Co., 10 Colo. 583, 3 Am. St. Rep. 603, 17 Pae. 487; Hammond v. Rose, 11 Colo. 524, 7 Am. St. Rep. 258, 19 Pac. 466; Farmers' etc. Reservoir Co. v. South- worth, 13 Colo. Ill, 21 Pac. 1028, 4 L. R. A. 767; Platte Water Co. v. Northern Colorado Irr. Co., 12 Colo. 525, 21 Pac. 711; Combs v. Ditch Co., 17 Colo. 146, 31 Am. St. Rep. 275, 28 Pac. 966; Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320, 30 Pac. 335; Thomas v. Guiraud, 6 Colo. 530; Armstrong v. Larimer etc. Co., 1 Colo. App. 49, 27 Pac. 235; Strickler v. City of Colorado Springs, 16 Colo. 61, 299 Ch. 14. SENIOR AND JUNIOR RIGHTS. (3d ed.) 309 the spring for culinary purposes and watering a saddle-horse, though having no right or title in the land he occupied (unsur- veyed public land). Sheep and cattle men from time to time watered at the spring, and after the settler's death one of them set up an appropriation against the settler's administrator. It was held the settler had a better right (which would pass to the administrator) to the extent of use for culinary purposes and 25 Am. St. Rep. 245, 26 Pac. 313; Ft. Morgan Co. v. So. Platte D. Co., 18 Colo. 1, 36 Am. St. Rep. 259, 30 Pac. 1032; Bloom v. West, 3 Colo. App. 212, 32 Pac. 846; Colorado Mill etc. Co. v. Larimer Irr. Co., 26 Colo. 47, 56 Pac. 185; Cache La Poudre Co. v. Water Sup. Co., 27 Colo. 532, 62 Pac. 420; Fulton etc. Co. v. Meadow etc. Co., 35 Colo. 588, 86 Pac. 748; Baer etc. Co. v. Wilson, 38 Colo. 101, 88 Pac. 265; Const., 'art. 16, sec. 6. Idaho. Malad Val. Irr. Co. v. Campbell, 2 Idaho, 378 (411), 18 Pac. 52; Kirk v. Bartholomew, 3 Idaho, 367, 29 Pac. 40; Conant v. Jones, 3 Idaho, 606, 32 Pac. 250; Krall v. United States, 79 Fed. 241, 24 C. C. A. 513 ; Dunniway v. Lawson, 6 Idaho, 28, 51 Pac. 1032; Moe v. Harger, 10 Idaho, 302, 77 Pac. 645. Kansas. Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, 70 L. .R. A. 971; Gen. Stats., sec. 3501. Montana. Thorp v. Freed, 1 Mont. 651; Woolman v. Garringer, 1 Mont. 535, 1 Morr. Min. Rep. 675; Alder Gulch etc. Co. v. Hayes, 6 Mont. 31, 9 Pac. 581; Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741; Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396; Civ. Code, sec. 1885. Nebraska. Cobbey's Ann. 'Stats., sec. 6753 ; Laws 1889, e. 68, p. 504, sec. 7. Nevada. Lobdell v. Simpson, 2 Nev. 274, 99 Am. Dec. 537; Ophir Min. Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550, 4 Morr. Min. Rep. 640; Proctor v. Jennings, 6 Nev. 83, 3 Am. Rep. 240, 4 Morr. Min. Rep. 265; Simpson v. Williams, 18 Nev. 432, 4 Pac. 1213; Barnes v. Sabron, 10 Nev. 217, 4 Morr. Min. Rep. 673; Chiato- vich v. Davis, 17 Nev. 133, 28 Pac. 239; R-eno Smelting Co. v. Stevenson, 20 Nev. 269, 19 Am. St. Rep. 364, 4 L. R. A. 60. 21 Pac. 317; Union Mill Co. v. Dangberg (Nev.), 81 Fed. 73; Ennor v. Raine, 27 Nev. 178, 74 Pac. 1; Twaddle v. Winters, 29 Nev. 88, 85 Pac. 284, 89 Pac. 289. New Mexico. Millheiser v. Long, 10 N. M. 99, 61 Pac. Ill; Albuquer- que Irr. Co. v. Gutierrez, 10 N. M. 177, 61 Pac. 357; S. C., Gtitierres v. Albuquerque etc. Co., 188 U. S. 545, 23 Sup. Ct, Rep. 338, 47 L. Ed. 588. Oregon. Kaler v. Campbell, 13 Or. 596, 11 Pac. 301; Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 Pac. 7; Speake v. Hamilton, 21 Or. 3, 26 Pac. 855; Hindman v. Rizor, 21 Or. 112, 27 Pac. 13; McCall V. Porter, 42 Or. 49, 70 Pac. 820, 71 Pac. 976; Nevada etc. Co. v. Bennett, 30 Or. 59, 60 Am. St. Rep. 777, 45 Pac. 472; Mann v. Parker, 48 Or. 321, 86 Pac. 598; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1098, 102 Pac. 728. South Dakota. Lone Tree D. Co. v. Cyclone D. Co., 15 S. D. 519, 91 N. W. 355; Stats. 1905, p. 204, sec. 2; Stats. 1907, c. 180, sec. 2. Utah. Munroe v. Ivie, 2 Utah, 535, 8 Morr. Min. Rep. 127; Lehi Irr. Co. v. Moyle, 4 Utah, 327, 9 Pac. 867; Salina Creek Irr. Co. v. Salina Stock Co., 7 Utah, 456, 27 Pac. 578; Hague Nephi Irr. Co., 16 Utah, 421, 67 Am. St. Rep. 634, 41 L. R. A. 311, 52 Pac. 765; Herriman Irr. Co. v. Butterfield M. Co., 19 Utah, 453, 57 Pac. 537, 51 L. R. A. 930; Salt Lake City v. Salt Lake etc. Co., 24 Utah, 249, 67 Pac. 672, 61 L. R. A. 648, 25 Utah, 456, 71 Pac. 1069. Wyoming. Const., art. 8, sec. 3; 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. See, also, Pomeroy on Riparian Rights, sec. 15 ; Gould on Waters, sec. 228 et seq. ; Kinney on Irrigation, sec. 150 et seq. 310 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 299 watering the horse, and to the extent of the times in the year he so used it, and the administrator could transfer it to other uses or to use on other lands. 3 The subsequent appropriator who claims that diversion will not injure the prior appropriator below him should be required to establish that fact by clear and convincing evidence. 4 A notice of appropriation is ineffectual against water already appro- priated and in use. 5 A diminution of the quantity appropriated 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. 6 Or. if the velocity is diminished by a dam pre- venting the working of a mining claim by a prior appropriator, or causing irregularity of flow. 7 Water must not be discharged into another's canal to his injury. 8 Under the doctrine of appro- priation of water, he who is first in time is first in right, and so long as he continues to apply the water to a beneficial use, subse- quent appropriators cannot deprive him of the rights his appro- priation gives, either by diminishing the quantity or deteriorating the quality. 9 In one case the governing force of priority is denied on the ground of the selfish result to which it led where the prior appro- priation of a stream to run a current-wheel would have prevented irrigation, by a subsequent appropriator, of a large region ; and the prior appropriator was not given damages for interference with the flow to the injury of his water-wheels. 10 But this case is really based upon a modification of the law of appropriation, rather than under it, and in that regard we consider it later. 11 Compliance with an unconstitutional statute cannot aid a claim of priority. 12 3 Patterson v. Ryan (Utah, 1910), v. Southern Cal. Ry. Co., 106 Cal. 257, 108 Pac. 1118, citing this book, 2d ed. 46 Am. St. Rep. 287, 39 Pac. 610. 4 Moe v. Harger, 10 Idaho, 302, 77 8 North Poin t etc. Co. v. Utah etc. Pac 645 Co., 16 Utah, 246, 67 Am. St. Rep. ' ' ,, ,, x 1onQ x 607, 52 Pac. 168, 40 L. R. A. 851. 5 Weidenstemer v. Mally (1909), ' Arizona etc Co . v> Gill ie 55 Wash. ,9, 104 Pac. 143. (Ariz ? 1909)> . 100 Pac . 465 . 6 Phoenix Water Co. v. Fletcher, 23 10 Schodde v. Twin Falls etc. Co. Cal. 481, 15 Morr. Min. Rep. 185. (Idaho), 161 Fed. 43, 88 C. C. A. 207. 7 Phoenix Water Co. v. Fletcher, 23 n Infra, sec. 310. Cal. 481, 15 Morr. Min. Rep. 185; 12 Lamar etc. Co. v. Amity etc. Co., Natoma etc. Co. v. McCoy, 23 Cal. 26 Colo. 370, 77 Am. St. Rep. 261, 58 490, 4 Morr. Min. Rep. 590; Stone v. Pac. 600; Great Plains etc. Co. v. Bumpers, 46 Cal. 218, 4 Morr. Min. Lamar etc. Co., 31 Colo. 96, 71 Pac. Rep. 278; Parker v. Gregg, 136 Cal. 1119; Mold v. Lamar Canal Co., 128 413, 69 Pac. 22. See, also, De Baker Fed. 776. 1300 Ch. 14. SENIOR AND JUNIOR EIGHTS. (3d ed.) 311 (3d eH.) 300. Whole Stream. If for a beneficial purpose, one may hence appropriate a whole stream. 13 An appropriation is limited to beneficial use, but may absorb a whole stream to that end. 14 "Under such doctrine the first appropriator may appropriate the entire flow of a stream, if used in proper irrigation. 15 Also, a nonriparian owner may appropriate and get an exclusive right to the whole water of a stream for nonriparian lands. ' ' 10 An- other says: "Beyond question, under our laws (Idaho), a party may be protected in the use of all the water he actually appro- priates and uses, even if it be every drop that flows in as great a river as the Snake. ' ' 17 (3d ed.) 301. In Times of Deficiency. In times of natural or other deficiency, also, unless otherwise provided by statute, the prior appropriator may still claim his full amount; the loss must fall on the later appropriators. In a case enforcing an appropria- tion to the extent of seventy-five per cent of the whole stream, it is said: "It further appears from this defense that at certain seasons of the year the flow of the stream will only supply the needs of the defendants. It appears, therefore, from the aver- ments of this defense, that the defendants have a prior right to the use of the water from the natural stream, and, when low, to the entire volume thereof, and the demurrer thereto should have been overruled." 18 This is true even where (indeed, especially where) unusual scarcity or dry season causes the deficiency. 19 13 As to beneficial use, see infra, c. 17 Trade etc. Co. v. Fraser, 148 Fed. 21. 587, 79 C. C. A. 37. 14 Bolter v. Garrett, 44 Or. 304, 75 is 'Wellington v. Beck, 30 Colo. 409, Pac. 143; Malad etc. Co. v. Campbell, 70 Pac. 687; S. C., 43 Colo. 70, 95 2 Idaho, 411, 18 Pac. 52; Moe v. Har- Pac. 297. ger, 10 Idaho, 302, 77 Pac. 645; Lock- 19 Ibid., and Huning v. Porter, 6 wood v. Freeman, 15 Idaho, 395, 98 Ariz. 171, 54 Pac. 584; City of Tel- Pac. 295; Wellington v. Beck, 30 Colo. luride v. Blair, 33 Colo. 353, 80 Pac. 409, 70 Pae. 687; Same v. Same, 43 1053. Compare Brown v. Smith, 10 Colo. 70, 95 Pac. 297 ; Alhambra etc. Cal. 508, 4 Morr. Min. Rep. 539 ; Co. v. Mayberry, 88 Cal. 74, 25 Pac. Brown v. Mullin, 65 Cal. 89, 3 Paci 1101; Brown v, Mullin, 65 Cal. 89, 3 99. "It is unfortunate that the flood Pae. 99. waters of Antoine Creek cannot be 15 Citing Hammond v. Rose, 11 conserved for the use of all, but, so Colo. 524, 7 Am. St. Rep. 258, 19 Pac. long as our laws measure the rights 466; Drake v. Earhart, 2 Idaho, 750, of the appropriator of water by the 23 Pac. 541. necessities of the dry season, the first 16 Meng v. Coffey, 67 Neb. 500, 108 in time must be held to be the first Am. St. Rep. 697, 93 N. W. 715, 60 in right. The just purpose of the L. R. A. 910. trial judge to apportion the waters 312 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 301 This is in marked contrast to the doctrine of riparian rights, where all riparian owners have an equal right, and, in time of deficiency, the water would be apportioned among them. 20 These possible results have been frequently urged as argu- ments against the doctrine of appropriation, saying that, the enforcement of appropriation may well work for the benefit of a few against many, but must be enforced nevertheless, and it is said that prior appropriation is a selfish system. 21 In California the court said that it would not require a prophetic vision to see a monopoly of waters as a result of the law of appropriation, 22 cannot be sustained in the light of the evidence showing that there is no ex- cess of water running to, or waste by, the appellants. This cause is re- manded with instructions to enter a decree fixing the amount of water ac- tually necessary to irrigate the lands of appellants even to the full flow of the stream in the dry season," etc. Avery v. Johnson (Wash.), 109 Pac. 1028. 20 Infra, sec. 751 et seq. See, also, Kinney on Irrigation, sees. 173, 225 (saying this may seem a selfish prin- ciple to one acquainted only with the common law upon the subject), 229, 240; Sayre v. Johnson, 33 Mont. 15, 81 Pac. 389; Kirk v. Batholomew, 3 Idaho, 367, 29 Pac. 40; and the emphatic opinion in Hillman v. Hard- wick, 3 Idaho, 255, 28 Pac. 438; Long on Irrigation, sec. 57. The State Engineer of Idaho saya in Bulletin 216 of the Office of Ex- periment Stations, United States De- partment of Agriculture: "So long as there is water sufficient for all ap- propriators the matter of priority is of no particular importance, but in case of shortage of water it becomes the duty of the water-master to see that the earlier appropriators are served, although the later appro- priators may suffer. To illustrate : In the case of three rights, one estab- lished in 1870, the second in 1880, and the third in 1890, in the event of shortage the two earlier rights would receive their full amount and the last would have what surplus there might be. If there were enough to supply only one of the rights, the 1870 right would receive all the water and the two later ones none at all. This, in simple terms, is an applica- tion of the law of priority in the use of water and the equitable principle upon which it is based is expressed in the words, 'first in time, first in right.' " .-i "A few men will locate their farms near the mouth of a stream and appropriate the waters thereof, and any subsequent locators up the stream would be guilty of a trespass if they undertook to use any of the waters thereof, and an action could be prose- cuted and maintained against them. .... Thus, the prior appropriator renders vast tracts of land utterly worthless, and their sale is lost to the government and their cultivation to the pople." Wade, C. J., in Thorp v. Freed, 1 Mont. 678, arguing that the law of appropriation should be re- jected entirely as to irrigation. In one recent case it is said that an appropriation may be made though it has the result "to lay barren and waste the lands of defendants in Mon- tana, that two farms in Wyoming may be supplied with water," because the contention to the contrary "dis- regards the maxim that he who is first in time is strongest in right, which is the very essence of the doctrine of appropriation." Morris v. Bean, 146 Fed. 435. See, also, Cave v. Tyler, 133 Cal. 566, 65 Pac. 1089. Many Colo- rado streams are already over-appro- priated, says the court in Humphreys T. Co. v. Frank, 46 Colo. 524, 105 Pac. 109.3. The Boise River in Idaho has been wholly appropriated. United States v. Burley, 172 Fed. 615. 22 Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, quoted infra, sec. 1015, con- fining appropriation in California to waters on public lands. 302 Ch. 14. SENIOE AND JUNIOR RIGHTS. (3d ed.) 313 and Mr. Pinchot says such a monopoly is already upon us. In Nebraska a statute setting up the law of prior appropriation was attacked as in conflict with a constitutional prohibition against monopolies, but it was held that the requirement that the prior appropriator must put the water to beneficial use before he can have any right removes the system from such invalidity. 23 Although the controlling force of priority has long been ac- cepted and applied, yet to-day there is a tendency in the courts to depart from this extreme position, and, in times of scarcity, to apportion the water instead of enforcing the priorities; 24 and there is also some movement in the legislatures to enact pro- rating statutes. 25 Likewise the requirement of beneficial use prevents holding the water for speculation. And it may be fur- ther noted in defense that since most of the large appropriations are made for distribution of the water to public use, they are subject to the law of the State made for the control of public service and to prevent abuses. 1 B. JUNIOR RIGHTS. (3d ed.) 302. Successive Appropriations. It is well settled that, sub- ject to the rule of priority, later comers may make appropria- tions, each later comer in succession being required to respect the appropriations of all who came before him. Later appropria- tions may be made of the surplus over what has been appro- priated by prior appropriators, or of any use that does not mate- rially interfere with prior appropriators. 2 In Colorado the sue- as Farmers' Irr. Dist. v. Frank, 72 Powell, 34 Cal. 109, 91 Am. Dec. 685; Neb. 136, 100 N. W. 286. Of. Munroe Nevada etc. Co. v. Kidd, 37 Cal. 282, v. Ivie, 2 Utah, 535, 8 Morr. Min. Rep. at 313 ; Higgins v. Barker, 42 Cal. 233, 127. 7 Morr. Min. Rep. 525; Smith v. 24 Infra, sec. 310, correlative rights ?'?ara, 43 Cal. 371 1 Morr. Min Rep. between annronriators 671 5 Stein Canal Co - v - Kern Island etc. Co., 53 Cal. 563; Hillman v. New- 10 In ' ra > sec - 309 - ington, 57 Cal. 56; Brown v. Mullin, 1 Infra, Part VII, sec. 1245 et seq. 65 Cal. 89, 3 Pac. 99 ; Jtmkana v. 2 Kelly v. Natoma etc. Co., 6 Cal. Bergin, 67 Cal. 267, 7 Pac. 684; Edgar 105, 1 Morr. Min. Rep. 592; Brown v. Stevenson, 70 Cal. 286, 11 Pac. 704; v. Smith, 10 Cal. 510; Ortman v. Ball v. Kehl, 87 Cal. 505, 25 Pac. 679; Dixon, 13 Cal. 33, 4 Morr. Min. Rep. Barrows v. Fox, 98 Cal. 63, 32 Pac. 539; McDonald v. Bear River etc. Co., 811; Natoma etc. Co. v. Hancock, 101 13 Cal. 220, 1 Morr. Min. Rep. 626; Cal. 42, 31 Pac. 112, 35 Pac. 334; McKinney v. Smith, 21 Cal. 374, 1 Santa Paula Water Co. v. Peralta, 113 Morr. Min. Rep. 150; American Co. v. . Cal. 38, 45 Pac. 168; Senior v. Ander- Bradford, 27 Cal. 360, 15 Morr. Min. son, 115 Cal. 496, 47 Pac. 454; Smith Rep. 190; Nevada Water Co. v. v. Hawkins, 120 Cal. 86, 52 Pac. 139, 314 (3d ed.) Pt. ILL THE LAW OF PRIOR APPROPRIATION. 302 cessive appropriators are called "senior" and "junior," names drawn from the law of mining locations, where priority also governs. A subsequent appropriator has a vested right against his senior to insist upon the continuance of the conditions that ex- isted at the time he made his appropriation. 3 "A second appro- priator has a right to have the water continue to flow as it flowed when he made his appropriation." 4 The subsequent appro- priator is entitled to the surplus, and any attempt of the prior appropriator to make a sale of such surplus to someone else to the injury of existing appropriators, though subsequent, is of no avail. 5 The prior cannot charge the later one for use of the surplus water. 6 It has been held that the fact that water passed all other appropriators raises a presumption that there was a surplus in favor of a junior appropriator. 7 Among the successive appropriators each is in the position of a prior one toward all who are subsequent to himself. 8 The independence of the appropriators inter se is shown by the de- cision that where a majority of users on a stream incorporate, they have no right to regulate the use of the minority who do not pome into the corporation. 9 There may, therefore, be numerous appropriations of water of the same stream, and for use at different times and seasons, or for different purposes. 10 And after the rights of subsequent ap- propriators have attached, the prior appropriator cannot change or extend his use to their injury. 11 An appropriator of water, it is true, may change the point of diversion or place of use, so long 19 Morr. Min. Rep.. 243; Senior v. 5 Creek v. Bozeman Water Co., 15 Anderson, 130 Cal. 290, 62 Pac. 563; Mont. 131, 38 Pac. 459, semble. Moe v. Harger, 10 Idaho, 302, 77 6 Mann v. Parker, 48 Or. 321, 86 Pac. 645 ; Mann v. Parker, 48 Or. 321, p ac . 598. 86 Pac. 598; McCall v Porter 42 Or 7 Md y< Barker (19Q9) lfj Idah 49, 70 Pae. 820, 71 Pac. 976; Salt 7 o 101 p.,, 9 - 4 Lake City v. Salt Lake etc. Co., 24 Utah, 249, 67 Pac. 672, 61 L. R. A. 8 Pomeroy on Riparian Rights, sec. 648, 25 Utah, 456, 71 Pac. 1069; 83 5 Kmney on Irrigation, sec. 173 et Hough v. Porter, 51 Or. 318, 95 Pac. sec l- 732, 98 Pac. 1083, 102 Pac. 728; Bartholomew v. Fayette etc. Co., Whited v. Gavin (Or.), 105 Pac. 396; 31 Utah, 1, 120 Am. St. Rep. 912, 86 Featherman v. Hennessey (Mont., Pac. 481. 1911), 113 Pac. 751. 10 McCall v. Porter, 42 Or. 49, 70 3 Handy Ditch Co. v. Louden etc. Pac. 820, 71 Pac. 976. Co., 27 Colo. 515, 62 Pac. 847; Baer u Cole v. Logan, 24 Or. 304, 33 etc. Co. v. Wilson, 38 Colo. 101, 88 Pac. 568; Bolter v. Garrett, 44 Or. Pac. 265. 304, 75 Pac. 142; Proctor v. Jennings, 4 Lobdell v. Simpson, 2 Nev. 274, 90 6 Xev. 83, 3 Am. Rep. 240, 4 Morr. Am. Dec. 537. Min. Rep. 265. 302 Ch. 14. SENIOE AND JUNIOR BIGHTS. (3d rd.) 315 as he does not thereby injure or affect the rights of others, because in such case they have no ground for complaint. But he cannot extend the use, so as to injure or interfere with subsequently ac- quired rights. 12 In the cases in the following note the prior ap- propriator was protected from the acts of a subsequent appro- priator which injured him, 13 while in the cases in the next note the subsequent appropriator was protected from unlawful acts of the prior appropriator, the subsequent appropriator 's right to surplus over the prior appropriation being protected. 14 The relative position of the appropriators, whether above or be- low each other, is immaterial. 15 The rule of successive appropriation is a simple one, but in the heat of conflict between appropriators it has been necessary for the courts to repeat it again and again. Consequently some repre- sentative quotations expressing the rule are appended in the note. 16 12 Williams v. Altnow, 51 Or. 275, 95 Pac. 200, 97 Pac. 539. Infra, c. 22. 13 Cache La Poudre etc. Co. v. Water Supply etc. Co., 25 Colo. 161, 71 Am. St. Eep. 131, 53 Pac. 331, 46 L. B. A. 175; Dunniway v. Law- son, 6 Idaho, 28, 51 Pac. 1032; Salt Lake City v. Salt Lake etc. Co., 24 Utah, 249, 67 Pac. 672, 61 L. B. A. 648; Morris v. Bean, 123 Fed. 618; Lytle Creek Co. v. Perdew, 65 Cal. 447, 4 Pac. 426; Simpson v. Harrah (1909), 54 Or. 448, 103 Pac. 58, 1007. 14 Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Eep. 320, 30 Pac. 335; Alder Gulch etc. Co. v. Hayes, 6 Mont. 31, 9 Pac. 581; Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741; Barnes v. Sabron, 10 Nev. 217; Union etc. Co. v. Dangberg, 81 Fed. 73; Mann v. Parker, 48 Or. 321, 86 Pac. 598; Smith v. Duff (1909), 39 Mont. 382, 133 Am. St. Bep. 587, 102 Pac. 984; Vogel v. Minnesota etc. Co., 47 Colo. 534, 107 Pac. 1108. Cf. Miller v. Wheeler (1909), 54 Wash. 429, 103 Pac. 641, 23 L. E. A., N. S., 1065. Where the quantity allowed a partic- ular owner for irrigation is not re- quired, it becomes subject to use by others on the strenm in the order of their rights. Whited v. Gavin (Or., 1909), 105 Pac. 396. is Hill v. Kin?. S Cal. 336, 4 Morr. Min. Eep. 533; Windsor Co. v. Hoff- man Co. (Colo.), 109 Pac. 422; Same v. Same (Colo.), 109 Pac. 425. 16 "Priority of appropriation, where no other title exists, undoubtedly gives the better right. And the rights of all subsequent appropriators are sub- ject to his who is first in time. But as others coming on the streams sub- sequently may appropriate and acquire a right to the surplus or residuum, so the rights of each successive person appropriating water from a stream are subordinate to all those previously acquired, and the rights of each are to be determined by the condition of things at the time he makes his ap- propriation. So far is tkis rule carried, that those who are prior to him can in no way change or extend their use to his prejudice, but are lim- ited to the rights enjoyed by them when he secured his. Nor has anyone the right to do anything which will, in the natural or probable course of things, curtail or interfere with the prior acquired rights of those either above or below him on the same stream. The subsequent appropriator only acquired what has not been se- cured by those prior to him in time. But what he does thus secure is as absolute and perfect and free from any right of others to interfere with it as the rights of those before him are secure from interference by him." Proctor v. Jennings, 6 Nev. 83, 3 Am. Bep. 240, 4 Morr. Min. Eep. 265. Held, a subsequent appropriator's dam is not actionable if it interferes with prior's 316 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 303 (3d ed.) 303. Same. Where water is appropriated for the purpose of furnishing power to a mill and after its use in the mill is per- mitted to flow, undiminished, back into the natural stream, it becomes subject to another appropriation, and when so appro- priated the mill appropriator cannot change the character of use or place of diversion in such manner as to injure or deprive the latter appropriator below the mill of his use of the water, 17 nor change to storage or irrigation so as to prevent the continuance of the discharge. 18 Water of a stream used for placer mining pur- poses and finding its way back into the stream is subject to be appropriated to agricultural uses by farmers on the stream below. 10 Waste water returned to the natural stream from which taken waterwheel above only because of heavy and fortuitous rains. "When the right of the complain- ant attached and became fixed, the re- spondents could not in any manner encroach upon or interfere with it by afterward extending and enlarging their own rights beyond their first appropriation, by the acquisition of additional land, and the construction of ditches or other means to convey additional quantities of water away from said river to any portion of their subsequently acquired lands. No rule of law is better settled, oftener ap- plied, more rigidly enforced, or based upon stronger principles of equity, justice, and right, in regard to the beneficial use of water, and the rights acquired by a priority of appropria- tion. The right of the first appro- priator is fixed by his appropriation, and when others locate upon the stream, or appropriate the water, he cannot enlarge his original appropria- tion, or make any change in the chan- nel, to their injury. Each subsequent locator or appropriator is entitled to have the water flow in the same man- ner as when he located, and may insist that the prior appropriator shall be confined to what was actually ap- propriated, or necessary for the pur- poses for which they intended to use the water. In other words, a person appropriating a water-right on a stream already partly appropriated acquires a right to the surplus or residuum he appropriates; and those who acquired prior rights, whether above or below him, on the stream, can in no way change or extend their use of the water to his prejudice, but are limited to the rights enjoyed by them when he secured his." Union Min. Co. v. Dangberg, 81 Fed. 73, per Judge Hawley. "When rights of subsequent ap- propriators once attach, the prior ap- propriator cannot encroach on them by extending his use beyond the first appropriation Each is, in re- spect to his own appropriation, prior in time and exclusive in right." Nevada M. Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685, 4 Morr. Min. Rep. 253. 17 Last Chance etc. Co. v. Bunker Hill etc. Co. (C. C. Idaho), 49 Fed. 430, 17 Morr. Min. Rep. 449; Mills' Irrigation Manual, p. 70, citing Cache La Poudre etc. Co. v. Water Supply Co., 25 Colo. 161, 71 Am. St. Rep. 131, 53 Pac. 331, 46 L. R. A. 175. See Trambley v. Luterman, 6 N. M. 15, 27 Pac. 312; Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959. 18 Windsor Co. v. Lake Supply Co., 44 Colo. 214, 98 Pac. 729. Compare Hutchison v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059, holding (semble) that an appropriator is in duty bound to return water to the stream from which it is taken even though no lower ap- propriator exists* thereon. ia Head et al. v. Hale et al. (1909), 38 Mont. 303, 100 Pac. 222. 304 Ch. 14. SENIOE AND JUNIOB EIGHTS. (3d ed.) M7 belongs to the appropriators below thereon, whether it comes by percolation, surface or subterranean flow. 20 These are all rulings having in mind water returned to the stream from which diverted, and, although called "waste," being but a surplus of the natural flow. As to cases of waste water not returned to the stream from which taken, but entering a different drainage, or wasted at a distance from any stream at all, different considerations are involved. 21 (3d ed.) 304. Same. Where a prior appropriation is for filling a reservoir, a later appropriation may be made by another of the surplus after the prior reservoir is filled, 22 and the second is senior to all subsequent to him. Where a system of exchanges of water between different owners of reservoirs, if put in practice, would necessarily convert a junior water-right into a senior priority, it could not be sustained. In this case the facts were quite compli- cated, and may be stated to show the character of the difficulties that arise. A mill appropriated sixty second-feet, returning it to the stream after use. Thereafter a "storage" company above the mill appropriated, subject thereto, enough water to fill its reser- voir. Still later, below the mill, a "reservoir" company appro- priated the sixty second-feet returned to the stream by the mill. It was held that this third appropriation was superior to any right of the "storage" company to retain that sixty second-feet, because, as respects that specific flow, the "reservoir company" was, on the facts, the first appropriator, being a surplus over the prior storage appropriation ; and this right to such surplus is not lessened by abandonment by the mill company, nor can the mill company sell its rights to the "storage" company to the "reservoir" com- pany's prejudice. 23 Some special Colorado law appears in this case regarding successive reservoir appropriations (appropriations measured by volume) as distinguished from appropriations of con- tinuous flow. 24 20 La Jara etc. Co. v. Hansen, 35 Wollman v. Garringer, 1 Mont. 544. 1 Colo. 105, 83 Pac. 645; Water Supply Morr. Min. Eep. 675; Hough v. Porter, & Storage Co. v. Larimer etc. Eeser- 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, voir Co., 25 Colo. 87-94, 53 Pac. 386; 102 Pac. 728. Clark v. Ashley, 34 Colo. 285, 82 Pac. 21 Supra, c. 4, especially sees. 55, 61. 588; McC'lellan v. Hurdle, 3 Colo. 22 Windsor Ees. Co. v. Lake Supply App. 434, 33 Pac. 280; Schneider v. Co., 44 Colo. 214, 98 Pac. 729. Schneider, 36 Colo. 518, 86 Pac. 348; 23 Windsor Co. v. Lake Supply Co., Schulz v. Sweeny, 19 Nev. 359, 3 Am. 44 Colo. 214, 98 Pac. 729. St. Kep. 8S8, 11 Pac. 253. And see 24 See infra, sec. 475 et seq. 318 (3ded.) Pt. IIL THE LAW OF PRIOR APPROPRIATION. 305 A prior appropriates of a lake by pumping cannot prevent a subsequent appropriation of any of the lake water which will not diminish the quantity nor increase the cost of the prior right. 25 The prior appropriator is limited to the quantity appropriated by him at the time of the subsequent appropriation, and cannot thereafter take an increased quantity ; l but an increase of mill capacity, 2 or an increase of acreage irrigated does not necessarily per se show the use of more water; it may merely show greater efficiency of the use of the same water. 3 The same appropriator may have two or more priorities from the same stream, but of different dates, one of which will be superior to another appropriator because first in time, and the other inferior because not made until the intervening right had been acquired. 4 Where the court found that appellee made two distinct appropriations of water for a reservoir, the first on March 5, 1901, of two hundred cubic feet per second, and the second, on October 22d, of the same volume, a decree awarding appellee a priority of four hundred cubic feet per second, as to March 5, 1901, was erroneous. 5 That the same irrigating ditch may have two or more priorities belonging to the same party or to different parties is not an open question in Colorado. 6 That is, where one makes several appropriations at different times, he may become both a prior and a subsequent appropriator in relation to other users, and his rights will not merge, but will stand as though his multiple rights belonged to different persons independently of each other. (3d ed.) 305. Periodical Appropriations. The later appropriation in most of the cases is a claim to the surplus in amount of water. 25 Dictum, Duckworth v. Watson- ,Co. v. Meadow etc. Co., 35 Colo. 588, ville etc. Co., 158 Cal. 206, 110 Pac. 86 Pac. 748. > ; T^ Tf r-f- r' 4 Whited v. Cavin (Or.), 105 Pac. Pac. 338. Cf . Salt Lake City v. Gard- 376 at 3Q9 ner (Utah), 114 Pac. 147. ' 1 Rutherford v. Lucerne etc. Co., 5 Windsor Res. Co. v. Lake Supply 12 Wyo. 299, 75 Pac. 445 ; Taughen- Co v supra. baugh v. Clark, 6 Colo. App. 235, 40 6 Park v. Park (1909), 45 Colo. 347, Pac. 153; Toohey v. Campbell, 24 101 Pac. 406; Thomas v. Guiraud et Mont. 13, 60 Pac. 396. al., 6 Colo. 530; Rominger v. Squires, 2 Union Min. Co. v. Dangberg, 81 9 Colo. 327, 12 Pac. 213; Fuller v. Fed. 73. Swan River Placer Min. Co., 12 Colo. 3 Cache La Poudre etc. Co. v. Lar- 12, 19 Pac. 836, 16 Morr. Min. Rep. imer etc. Co., 25 Colo. 144, 71 Am. 252; Farmers' High Line C. & R. Co. St. Rep. 123, 53 Pac. 318; Platte v. Southworth, 13 Colo. Ill, 21 Pac. Valley etc. Co. v. Central Trust Co., 1028, 4 L. R. A. 767; Nichols v. Mc- 32 Colo. 102, 75 Pae. 391; Fulton etc. Intosh, 19 Colo. 22, 34 Pac. 278. 305 Ch. 14. SENIOB AND JUNIOR EIGHTS. (3d od.) 319 It may just as well, however, be an appropriation of the surplus in time, to use the whole or part when the prior claimant is not using it at certain times. In Smith v. O'Hara (the leading case) T the court says: "If the person who first appropriates the waters of a stream only appropriates a part, another person may appro- priate a part or the whole of the residue ; and when appropriated by him his right thereto is as perfect, and entitled to the same protec- tion, as that of the first appropriator to the portion appropriated by him. In Ortman v. Dixon, 8 it was decreed that the defendants were entitled to the waters of the creek for the use of their mill; that the plaintiffs were then entitled to sufficient water to fill their ditch No. 2 ; and that the defendants were next entitled to the residue to fill their ditch No. 3. The cases are very numerous which affirm, or assume without question, this doctrine. It is usually the case that the amount of water to which the several persons claiming its use are entitled is measured by inches, ac- cording to miner's measurement, or by the capacity of the ditches through which it is conducted from the stream, but there is no reason why the amount may not be measured in some other mode. They hold the amount appropriated by them respectively as they would do had the paramount proprietor granted to each the amount by him appropriated. The right to use the waters, or a certain portion of them, might be granted to one person for certain months, days or parts of days, and to other persons for other specified times. An agriculturist might appropriate the waters of a stream for irrigation during the dry season, 9 and a miner might appro- priate them for his purposes during the remainder of the year. And so may several persons appropriate the waters for use during any different periods. There is no difference in principle between appropriations of waters, measured by time, and those measured by volume." 30 At all times that the water is not required by one appropriator it should be at the disposal of the other for irrigation and other 1 43 Cal. 371, at 376, 1 Morr. Min. 1107; Cache La Poudre Co. v. Water Rep. 671. Supply Co., 25 Colo. 161, 71 Am. St. s 13 Cal. 34. Rep. 131, 53 Pac. 331, 46 L. R. A. Dry season defined. Daly v. Rud- 175 ; City of Telluride v. Blair, 33 Gell, 137 Cal. 671, 676, 70 Pac. 784. Colo. 353, 80 Pac. 1053; Barnes v. 10 To the same effect, Peregoy v. Sabron, 10 Nev. 217, 4 Morr. Min. Sellick, 79 Cal. 568, 21 Pac. 966; Rep. 673 (quoting Smith v. O'Hara) ; Santa Paula Water Co. v. Peralta, 113 Twaddle v. Winters, 29 Nev. 88, 85 Cal. 38, 45 Pac. 168; Sonthside etc. Pac. 283, 89 Pac. 289; Mann v. Co. v. Burson, 147 Cal. 401, 81 Pac. Parker, 48 Or. 321, 86 Pac. 598; 320 (3d ed.) Pt. III. THE LAW OF PKIOB APPROPRIATION". 305 uses when needed. 11 An appropriation of water is limited, in quantity as well as in time, to the extent of the appropriation, and, where water was taken from a ditch for mining only through the winter months up to June 1st, the right of appropriation was lim- ited to that period. 12 "There is no doubt that, where a party in the appropriation of water limits himself in using it to certain specified dates, subsequent appropriators may acquire a vested right to the water to be used at times not embraced in the claim of the first appropriator. " 13 In Barnes v. Sabron u the court said: "We think the rule is well settled, upon reason and author- ity, that, if the first appropriator only appropriates a part of the waters of a stream for a certain period of time, any other person or persons may not only appropriate a part or the whole of the residue, and acquire a right thereto as perfect as the first appro- priator, but may also acquire a right to the quantity of water used by the first appropriator at such times as not needed or used by him. In other words, if plaintiff only appropriated the water during certain days in the week, or during a certain number of days in a month, then the defendants would be entitled to its use in the other days of the week, or the other days in the month." The essential element necessary to make an appropriation periodical in character consists in the intention of the appro- priator to so limit his right. Where the intermittent character of use is not pursuant to design, but is accidental or due to unfore- seen causes (having intended a continuous use at all times), the appropriation is not within the periodical, class. In such cases during the nonuse periods the water may be taken by others as temporary appropriations, but they cannot insist upon receiving the water at any stated periods in the absence of prescription or forfeiture by the prior claimant. An appropriation is not periodi- cal in character unless so intended ; such intent being drawn from acts and circumstances as much as from the appropriator 's actual expression or claim or notice. 15 Stowell v. Johnson, 7 Utah, 215, 26 12 Davis v. Chamberlain, 51 Or. 304, Pac. 290; Farnham on Waters, p. 98 Pac. 154. 2088; Pomeroy oh Riparian Rights, 13 Rodgers v. Pitt, 129 Fed. 932. see. 84: 14 10 Nev. 217, 245, 4 Morr. Min. ll Gardner v. Wright, 49 Or. 609, Rep. 673. 91 Pac. 286; Hough v. Porter, 51 Or. 15 For example, it is held: ''The 318, 95 Pac. 732, 98 Pac. 1083. ]02 fact that the volume of water, by rea- Pac. 728; Whited v. Cavin (Or., 1909), son of climatic conditions, is sufficient 105 Pac. 396. for the use intended during certain 306 Ch. 14. SENIOK AND JUNIOR BIGHTS. (3d ed.) 321 (3d ed.) 306. Temporary Appropriation. A later comer may make an appropriation, temporary in its nature, in the following cases: (a) Where the prior appropriator has posted his notice and begun construction work, but has not yet completed his flumes or other appliances by which the water is to be diverted. During this interval, which may last for a year or more in some cases, others have a right to use the water. Their right is entirely a temporary one, however, and ceases when the works of the prior claimant are completed. 16 This temporary use becomes wrongful if it hinders the prior claimant's construction work, or prevents his diversion of the water when his works are finished. 17 Likewise it must leave him sufficient water during the construction work to keep his new ditch in good condition, or the water otherwise needed to carry on his construction work. 18 The prior claimant need take no notice of temporary appropriations of this kind during the progress of his construction work ; they cease ipso facto when he is ready, though he has not warned them. 19 (b) After the works are completed but pending the application of the water thereby to actual use. 20 (c) Where, after actual use has begun, the prior appropriator who has been using the water ceases temporarily to do" so. Dur- ing such time, a later comer may divert the water and use it. While a ditch by which the waters of a stream have been appro- priated is out of repair, and not in a condition to carry any water, an action will not lie to abate, as a nuisance, a reservoir constructed across the bed of the stream, above the head of the ditch, by which the water of the stream is collected and detained and caused to overflow unequally. 21 It will thus be seen that a fundamental object of the law of appropriation now is to have the water put to a beneficial use ; con- versely, to have none wasted. There are authorities against this, portions of the year only, does not, of 17 Ibid. itself, limit the appropriation to such is Ibid.; and Weaver v. Conger, 10 periods of time, but is available when- Cal. 233, 6 Morr. Min. Rep. 203 ever, by reason of the flow there is 19 /b ^. and Woolman v . e^. sufficient water for such beneficial rf l ^ ^ M . use." City o Tellunde v. Davis, 33 R7 /" Colo. 355, 108 Am. St. Rep. 101, 80 Pac. 1051. ee i u * ure needs, infra, sec. 483 16 Nevada etc. Co. v. Kidd, 37 Cal. et sec l- 282; Miles v. Butte etc. Co., 32 Mont. 21 Bear River etc. Co. v. Boles, 24 56, 79 Pac. 549. Cal. 359. Wrter Rights 21 322 (3d ed.) Pt. III. THE LAW OF PKIOE APPEOPEIATION. 307 based on the doctrine of "injuria sine damno," which hold that the prior appropriator is entitled to the flow whether using it or not, and that temporary use by others during the prior's nonuse will be enjoined; but we think these cases are against the prevailing rule to-day ; 22 and after the lapse of a fixed period of time of non- use by the prior owner, the subsequent right is not only recognized, but ceases to be temporary and becomes permanent, irrespective of any question of prescription. 23 (3d ed.) 307. No Partiality. Appropriators following all pursuits are, as we have seen, 24 all on an equal footing. As is said in Basey v. Gallagher : 25 "No distinction is made in those States and Terri- tories by the custom of miners and settlers, or by the courts, in the rights of the first appropriator, from the use made of the water, if the use be a beneficial one Water is diverted' to propel machinery in flourmills and sawmills, and to irrigate land for cul- tivation, as well as to enable miners to work their mining claims, and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced." Whether the prior appropriator is himself a miner or not makes no difference. The miner has no preference over an agriculturist in making an appropriation. 1 To the cases cited ante 2 we may add a quotation from another. Says the court in Wixon v. Bear River etc. Co. : s ' ' The four remaining instructions refused by the court are founded upon the theory that in the mineral districts of this State, the right of miners and persons owning ditches constructed for min- ing purposes are paramount to all other rights and interests of a different character regardless of the time or mode of their acquisi- tion; 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 ownership 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 22 Infra, sec. 642. * Natoma etc. Co. v. Hancock, 101 23 Infra, see. 575 et seq. See es- Cal. 42, 31 Pac. 112, 35 Pac. 334. pecially Smith v. Hawkins, 120 Cal. See Revenue etc. Co. v. Balderstone 403 52 Pac. 139 19 Morr. Min. Eep. 2 Alaska, 363; Arizona Copper Co. v. 243! Gillespie (Ariz.), 100 Pac. 465; Basey V. Gallagher, supra. 24 Supra, sec. 85. 2 S ec 85. 25 87 U. S. 670, 22 L. Ed. 452, 1 3 24 Cal. 367, at 373, 85 Am. Dec. Morr. Min. Eep. 683. 69, 1 Morr. Min. Eep. 656. 307 Ch. 14. SENIOR AND JUNIOR RIGHTS. (3d ed.) 323 us in combating it." And so, while a miner, prior to a sawmill, was protected, 4 on the other hand the sawmill being prior was pro- tected. 5 Nor have irrigators, aside from statute, any preference over miners if later in time, 6 but prevail over miners if prior in time. 7 Nor, aside from statute, has manufacturing any prefer- ence. 8 In one case 9 it is said: "An earnest argument is made on behalf of the respondents to the effect that the agricultural interests of Carson Valley are of paramount importance to those of the mill owners on the Carson River; that the necessaries of life are pro- duced by the farmers, and cannot be successfully brought forth without the use of water for the irrigation of their crops. But of what general use, independent of the wants and necessities of themselves and their families, would the products of their farms be, unless the other industries which furnish a market for the crops were equally protected in their rights? The money neces- sary to be obtained in order to enable the farmers to sell their crops with profit must be obtained from other sources from other avenues of industrial and business pursuits. The prospector and capitalist, laborer and miner, searching for the precious metals that lie imbedded in the earth in the mineral regions of the State, have certain rights that need protection, as well as other classes. When these discoveries are made, the metalliferous ores cannot be at all times successfully reduced without the aid of expensive ma- chinery, the building of mills to be propelled by water power, etc. Water for this purpose is as much a want or necessity of the com- munity as it is for the purpose of irrigating the land. The mining industry of this State has always been considered of as great importance as the agricultural interests. The right to the water of a stream for any beneficial use should always be protected and encouraged. ' ' 4 Conger v. Weaver, 6 Cal. 548, 65 ditches. But see infra, sec. 528, pol- Am. Dec. 528, 1 Morr. Min. Rep. 594. lution. 10- ^ r M r V ' Ar^f etC ^%rt C 7 Montana Co. v. Gehring, 75 Fed. 39o, J4 Morr. Mm. Kep. 371: Ortman QQ . 01 n n A ., . v. Dixon, 13 Cal. 33. 84 ' * J L ' U A ' 414 ' 6 Union etc. Co. v. Dangberg, 81 8 Windsor Co. v. Hoffman Co. Fed. 73. The California irrigation (Colo., 1910), 109 Pae. 423; Same v. district law (Stats. 1897, p. 254, sec. Same > 1] Pa c. 425. 64) expressly denies irrigation dis- 9 Union Mining Co. v. Dangberg, 81 tricts any preference over mining Fed. 73. Per Judge Hawley. 324 (3d ed.) Pt. IIL THE LAW OF PEIOB APPROPRIATION. 308 (3d ed.) 308. Preferences. In a number of States the recent legis- lation, however, has departed from the foregoing rule of impar- tiality, and uses are classified .with regard to scarcity, or where they are of incompatible character. Usually, domestic use is to be supplied first; second, irrigation; third, other uses. In Colorado this preference is enforced by a provision that if water appro- priated for domestic use is used for irrigation to any extent what- ever, it is a misdemeanor. 10 In Idaho, mining (in mining districts) has the second preference. In Wyoming, in 1909, an elaborate series of preferences was enacted. Preferences appear (with varia- tions) in the statutes of Colorado, Idaho, Kansas, Nebraska, New Mexico, Oregon, Utah, Wyoming, and probably some other States. 11 (There should also be noted the provision elsewhere considered, giving the State Engineer power to reject appropriations "where 10 See Fulton etc. Co. v. Meadow etc. Co., 35 Colo. 588, 86 Pac. 748; 3 M. A. S., 1905 ed., sec. 2269a; Rev. Stats. 1908, sees. 3178, 3179; Laws 1891, p. 402, sec. 1; Laws 1891, p. 403, sec. 2. 11 Arizona. Rev. Stats., c. 55, sec. 5, giving preference to irrigation. Colorado. Const., art. 16, sec. 6; 3 M. A. S., 3d ed., 2269a. Idaho. In the Idaho constitution, article 15, section 3, it is declared that in times of scarcity, domestic uses shall be supplied first; second, mining (in organized mining districts) ; third, agricultural; and fourth, manufactur- ing. Kansas. Gen. Laws, 1909, sec. 4423. Nebraska. Comp. Stats. 1903, sec. 6541. New ' Mexico. "No inhabitant of said territory shall have the right to construct any property to the impedi- ment of the irrigation of land or fields, such as mills or other property that may obstruct the course [i. e., flow] of the water; as the irrigation of the fields should be preferred to all others [i. e., to all other uses]." N. M. Gen. Laws 1880, art. , sec. 2. Oregon. Laws of 1909, chapter 216, section 47, contain some prefer- ence to municipal purposes. Utah. Laws of 1905, chapter 108, provided the prior appropriator shall always be supplied in full before a subsequent appropriator gets any water, except in the annual low-water stage, when all users are on an equal footing, and pro-rate. In time of scarcity, domestic uses have preference over all other purposes, and agricul- ture over all except domestic use; those using for the same purpose maintaining priorities between them- selves (sec. 56). And this is pre- served in the later statutes. Wyoming. "Water-rights are here- by defined as follows according to use: Preferred uses shall include rights for domestic and transportation purposes in accordance with the pro- visions of the law relating to con- demnation of property for public and semi-public purposes. Such domestic and transportation purposes shall in- clude the following: First, water for drinking purposes for both man and beast; second, water for municipal purposes; third, water for the use of steam engines and for general rail- way use; fourth, water for culinary, laundry, bathing, refrigerating (in- cluding the manufacture of ice), and for steam and hot-water heating plants. The use of water for irriga- tion shall be superior and preferred to any use where turbine or impulse water-wheels are installed for power purposes." Laws 1909, c. 68, p. 112, sec. 2; Comp. Laws, 1910, sec. 725. 308 Ch. 14. SENIOE AND JUNIOR RIGHTS. (3d ed.) 325 such denial is demanded by the public interest," 12 which, it has been claimed, gives him power of choice between classes of uses.) These provisions, so far as they attempt to annihilate the doc- trine of priority between classes of uses, or to classify uses for the purposes of priority, are not fully enforced by the courts. The preference to domestic uses, given the first preference, is held in Colorado as only preserving a right similar to the common- law riparian right of each riparian proprietor to domestic use on his land. If the attempt by such provision were to defeat prior appropriations for other purposes entirely it would be unconstitu- tional, as a prior appropriation has a vested right that can be taken only on eminent domain proceedings and payment of compensa- tion. 13 The same has been held of the Nebraska provision 14 and of the Idaho provision. 15 These cases hold that the preference to domestic use does not give municipalities the right to take water away from prior appropriators owning rights for mining, irriga- tion, power, or manufacturing. The present state of the Colorado law appears in the following cases : A water company purchased the water- rights of private parties with a view to furnish water for domestic use, and relied for priority on the rights of their grantors, who had been using the water for domestic use. The court says: "Upon the question of the right of appellees to divert the water for domestic use, based on the fact that their grantors, as riparian owners, had enjoyed such use since their first settlement upon the stream, the court below held that such claim could not be sustained, and -that the right to use the water for such purpose must be exercised in con- nection with riparian ownership. This holding is in accord with 12 Infra, sees. 313, 314, 415. was permitted to the riparian pro- is Strickler v. Colorado Springs, 16 prietor at common law, which ordi- Colo. 61, 25 Am. St. Rep. 245, 26 narily involves but little interference Pac. 317; Armstrong v. Larimer etc. with the water of a stream or its flow. Co., 1 Colo. App. 49, 27 Pac. 235; and does not contemplate diversion of Montrose etc. Co. v. Loutsenhizer etc. large quantities of water in canals or Co., 23 Colo. 233, 48 Pac. 532 ; Broad- pipe-lines. Crawford v. Hathaway, 67 moor etc. Co. v. Brookside etc. Co., Neb. 325, 108 Am. St. Rep. 647, 93 N. 24 Colo. 541, 52 Pac. 792; Town of W. 781, 60 L. R. A. 889. See Corpora- Sterling v. . Pawnee etc. Co., 42 Colo. tions and Consumers, infra, sees. 1343, 421, 94 Pac. 341, 15 L. R. A., N. S., 1344 et seq. 238. 15 Montpelier etc. Co. v. Montpelier 14 In Nebraska it was held, citing (Idaho, 1911), 113 Pac. 741. The the Colorado cases, that in the prefer- Wyoming statute, supra, expressly re- ence to domestic uses, the term "do- quires condemnation and payment be- mestic purposes" has reference to such fore the preference can be exercised, use of water for domestic purposes as 326 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 308 the views expressed in the recent case of Montrose Canal Co. v. Loutsenhizer Ditch Co-., 16 wherein it is said : ' While it is true that section 6 of article 16 of the constitution recognizes a preference in those using water for domestic purposes over those using it for any other purpose, it is not intended thereby to authorize a diver- sion of water for domestic use from the public streams of the State by means of large canals The use protected by the consti- tution is such use as the riparian owner has at common law to take water for himself, his family, or his stock, and the like. ' The court therefore correctly decided that the water could not be used for such purpose by the company, through its pipe-line. " 17 In the latter case cited in the note the court said: "Rights to the use of water for a beneficial purpose, whatever the use may be, are prop- erty, in the full sense of that term, and are protected by section 15, article 11, of our constitution, which says that 'private prop- erty shall not be taken or damaged for public or private use with- out just compensation.' .... That a city or town cannot take water for domestic purposes which has been previously appro- priated for some other beneficial purpose, without fully compensat- ing the owner, is so clear that further discussion seems almost unnecessary. Any other conclusion would violate the most funda- mental principles of justice, and result in destroying most valuable rights. It would violate that right protected by our constitution, that property shall not be taken from the owner either for the benefit of the public or for private use, without conpensation to the owner. The right of a city to divert water for the use of its inhabitants is not superior to the right of an individual, or a farm- ing community, to divert water for domestic or other purposes, in the sense that the city may take water for that purpose from those who have previously appropriated it for the same, or some other, beneficial use, without compensating the senior appropriator." The effect of these decisions is that the common law of riparian rights is not, after all, rejected in toto, in Colorado, or, rather, that is the effect if the provision in question is given any force at all. 18 As yet the courts have only been engaged in cutting down 10 23 Colo. 233, 48 Pac. 532. 341, 15 L. R. A., N. S., 238, and the 17 Broadmoor Dairy Co. v. Brook- other eases already cited. side Water Co., 24 Colo. 541, 52 Pac. 18 The provision is not confined to 792. Affirmed in Town of Sterling v. appropriators, who own riparian land. Pawnee etc. Co., 42 Colo. 421, 94 Pae. Town of Sterling v. Pawnee etc. Co., 308 . . Ch. 14. SENIOR AND JUNIOR RIGHTS. (3d ed.) 327 that provision, and that is where the cases now stop, without af- firmatively holding that the common-law right exists, but only that beyond the common-law right the preference does not go. It may be that the court will hold that the preference does not even extend to the common-law right, thus in effect nullifying the preference entirely. 19 The second preference in Colorado, given to irrigators, was held not to apply to rights acquired before the adoption of the con- stitution. 20 The second preference in Idaho is given to mining, but the court has held that this does not give the miner any right to pollute the stream as against prior appropriators for irrigation. 21 The matter is not of recent origin, and the courts find such pref- erences do not work justice. In the first historical chapter it was seen that a preference of such kind in favor of use for mining was urged when the foundations of the doctrine of appropriation were being laid, and the California court had much difficulty in over- coming it, but it was overcome. And it was fortunately so, for the preference then would have become fixed for mining, to the great detriment of irrigation, which has since overshadowed it, but was then in its infancy. 22 And so likewise a preference to irrigation to-day will prevent the growth of use of water for generating electric power, which is now in its infancy. The original rule, which still prevails in California and most other jurisdictions, of impartiality, is better. 1 42 Colo. 421, 94 Pac. 341, 15 L. R. A., bill has passed both Houses and will N. S., 238. In Idaho the first pref- probably be signed by the governor, erence is given to domestic use. 20 Colorado etc. Co. v. Larimer etc. Quaere, what is the bearing of that QQ 2 6 Colo. 47, 56 Pac. 185. preference upon the decision in Hut- 91 .,, _, , chinson v. Watson D. Co. (1909), 16 * Hl v ' J to dard on e a c< Q C( \, 12 Idaho, 484, 133 Am. St. Rep. 125,101 * dah ,' 223 > 8 , 5 *?.: 9 . 09 - S f T Mc- Pac 1059? The common law itself Carthy^v. Bunker Hill etc. Co. (Idaho, x^bandoning the TtSon Ltwin " 08 \ 164 *ed. 927, 92 C. C A 259; domestic and g other use, Infra, se, ^otl^iosV, 35? <" 19 By the Carpenter Bill with Par- 22 See Crandall v. Woods, quoted rish amendment in the 1911 Colorado supra, sees. 113, 114. legislature, repeal is advocated of an i Elwood Mead, Chief of the Irri- act of April 13, 1901 (Stats. 1901, gation and Drainage Investigations p. 194, sec. 4), giving direct irriga- of the Department of Agriculture, tion from streams a preference over expressed the following views as a storage irrigation from reservoirs witness in Kansas v. Colorado: "The filled from the stream, the preference use of water for household and domes- being considered both dangerous and tic purposes I would put as of primary unconstitutional. At this writing the importance. After that, irrigation. 328 (3d ed.) Pt. in. THE LAW OF PRIOR APPROPRIATION. 309 (3d ed.) 309. Pro-rating. The provisions for pro-rating, in times of scarcity, between users for the same purpose (e. g., between all irrigators) have also given much difficulty. Something more will be said of this hereafter. 2 In Colorado, the statute provides that water commissioners may pro-rate the water in time of deficiency between all appropriators, by volume or by time of use. 3 Between consumers from the same ditch, pro-rating is provided in times of scarcity. 4 The Colorado court here also has taken its stand against these modifications of the doctrine of priority. In Farmers' High Line etc. Co. v. Southworth, 5 the majority of the judges rendered opinions that the "pro-rating statute of 1883," if enforced literally and irrespective of the priorities of the several appropriators, was inhibited by the constitution. 6 That appropriators through the same ditch may have different priorities has been frequently held in this State. 7 Consequently, the court 8 has considered it stare decisis that there may be circumstances in which appropriators, even though through the same ditch, may not (even by statute) be compelled to pro-rate with each other. 9 In an action where the right to pro-rate is claimed, all the parties who are to pro-rate are necessary parties. 10 A con- I would put irrigation even ahead of its use for power where its use for power would prevent its being used for irrigation, because you can provide your power in some other way and you cannot provide food in any other way. I would put irrigation as superior to navigation, because of the far greater value that you can get out of the water, and because navigation is the one instance of the use of water where its importance instead of increasing is diminishing." In the 1905-1906 Report of the State Engineer of Wyoming it is suggested by the Super- intendent of Water Division No. 2 that whenever the right to use water for power interferes with irrigation, a way should be provided for the ap- praisement and sale of the power right. And the Wyoming statute since passed (above quoted) should be re- ferred to. 2 Infra, sec. 1343 et seq. 3 M. A. S. 2259, 2267. 4 In M. A. S. 2267. 13 Colo. Ill, 21 Pac. 1028, 4 L. R. A. 767. 6 Elliott, J., thought pro-rating in- valid generally (excepting where ap- propriators are of equal date or have expressly waived priorities, or regard- ing consumers from mutual com- panies), and this is probably accepted as the law of the case. Helm, C. J., thought the invalidity extended only as to consumers under different canals, and valid as to co-consumers under the same canal; but Judge Elliott's opin- ion seems to have prevailed. 7 Nichols v. Mclntosh, 19 Colo. 22, 34 Pac. 278; Farmers' Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513, 521, 55 Am. St. Rep. 149, 45 Pac. 444; Brown v. Farmers' High Line Canal etc. Co., 26 Colo. 66, 56 Pac. 183. 8 In Farmers' etc. Co. v. White, 32 Colo. 114, 75 Pac. 416. 9 See, however, Larimer etc. Co. v. Wyatt, 23 Colo. 480, 48 Pac. 528. 10 Brown v. Farmers' High Line Canal etc. Co., 26 Colo. 66, 56 Pac. 183; Farmers' etc. Co. v. White, 32 Colo. 114, 75 Pae. 416. 310 Ch. 14. SENIOB AND JUNIOR EIGHTS. (3d ed ) 329 tract with a company enforcing pro-rating will be upheld, how- ever. 11 In Utah, primary and secondary rights are by statute provided for, the latter referring to unusual increases in streams and the former being rights in ordinary stages. 12 In Washington, in cases of deficiency of supply, a statute provides that the courts may ap- point commissioners to make an equitable apportionment by enforc- ing a pro-rata reduction from the full amount appropriated. 13 The question of pro-rating is further considered in hereafter considering consumers from distributing companies. 14 C. CORRELATIVE RIGHTS BETWEEN APPROPRIATORS. (3d ed.) 310. The Principle of " Unreasonable Priority." That priority and beneficial use should be the exclusive test between appropriators has, as above, always been, aside from statute and te some extent in spite of statute, the established rule. Yet there has always been a minority current of authority contending that the exclusiveness of a prior right should be recognized only to a certain degree, and that priorities should not be enforced when to do so would be "unreasonable" to water users upon the same stream, though subsequent in time of use. It is this minority current of authority which these sections will set forth at some length in substantially the form in which the writer contributed it to the Yale Law Journal, 15 in the belief that this modification of the rule of priority is of importance, especially in view of the demand for the prevention of monopoly and the conservation of natural resources, recently become so strong. (3d ed.) 311. Some Early Rulings. The common law of riparian rights regards all riparian proprietors as upon an equal footing, giving each a right to a "reasonable" use of the stream at any time. Their rights are correlative, and no one of them can 11 O'Neil v. Fort Lyon Co., 39 Colo. Marble etc. Co., 15 Utah, 225, 49 Pac. 487, 90 Pac. 849;' Jackson v. Indian 892, 1119; Salt Lake City v. Salt Lake etc. Co. (1909), 16 Idaho, 430, 101 etc. Co., 25 Utah, 456, 71 Pac. 1069. Pac. 814, 110 Pac. 251. Pieree's Code, sees. 5820-5824, 12 2 Utah Comp. Laws, 1888, sees. 5831. 2775-2789. As to primary and sec- 14 Infra, sees. 1284, 1343 et seq. ondary rights in Utah, see Becker v. 15 18 Yale Law Journal, 1.88. 330 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 311 use the water in any manner that would, under all the sur- rounding facts and circumstances, be unreasonable in its effect upon the capacity of use by the others. 16 The California legis- lature in 1850 17 had adopted the common law, by statute, as the general rule of decision, and when the supreme court five years later began to i-ecognize exclusive rights by priority in time of use, it was in some quarters accused of judicial legisla- tion. These are matters already set forth at length. 18 This criticism induced in some of the judges a desire to reconcile the new decisions, as much as possible, to common-law rules; result- ing in expressions in several early cases that the rights of appro- priators were correlative as between riparian proprietors at com- mon law, and that the prior appropriator must be confined to a "reasonable" use as determined by the effect of his use upon sub- sequent appropriators, just as between riparian proprietors at common law. Conger v. Weaver 19 is a direct reply by the court to the charge that it was guilty of judicial legislation. It declared that the common law had not been departed from; that the common law itself was merely being applied to new conditions, and it expressly declared the intention of the court to apply the common-law rules so far as conditions permitted. The court, after saying, "We claim that we have neither modified its rules, nor have we attempted to legislate upon any pretended ground of their insufficiency," proceeds: "That new conditions and new facts may produce the novel application of a rule which has not been before applied in like manner does not make it any the less the common law," etc. The opinion then proceeds to reconcile the new decisions to -the common law upon a point with which we are not here concerned ; 20 it shows the desire which immediately arose, among some members of the court, to depart from the common law as little as possible. 21 16 Infra, sec. 745 et seq. posed the recognition of appropriation 17 Stats. 3850, p. 219, now Pol. at all on that account, and dissented. Code. sec. 4468. Accordingly, in his opinion in Hill v. 18 'Supra, sec. 79 et seq. King, 8 Cal. 338, 4 Morr. Min. Rep. 19 6 Cal. 548, 65 Am. Dec. 528, 1 533, he practically admits the charge Morr. Min. Rep. 594. of judicial legislation, and enforces 20 See supra, sees. 89, 90. the rule of priority only because 21 The Chief Justice, however, was bound by the weight of cases already not convinced that the reasoning of decided against his own opinion. In the case was an answer to the com- doing so, he says: "If the parties plaint of judicial legislation; he op- both claimed as riparian proprietors, 311 Ch. 14. SENIOE AND JUNIOR RIGHTS. (3d ed.) 331 In a case decided soon after, the court said it had applied "the analogies of the common law," and refused an action to the prior appropriator for mining, against a subsequent claimant who polluted the stream in legitimate mining, con- sidering it unreasonable for one miner, under the claim of priority, to withhold the stream entirely from use by other miners. 22 Thereafter the early California decisions twice, in important cases, declared the doctrine of appropriation as conforming to the common law in regard to the requirement, now in question, that the prior use must be "reasonable" in its effect upon sub- sequent locators (similar to the correlative rights of riparian owners) and not exclusive or arbitrary. In Phoenix W. Co. v. Fletcher 23 the law was said to be: "The rule of law is well established that the owner of hydraulic works on the stream above has no right to detain the water unreasonably. He must so construct his mill, or other works, and so use the water, that all persons below him, who have a prior or equal right to the use of the water, may participate in its use and enjoyment with- out interruption"; and adds that all appropriators have a right, to a reasonable use of the water, in conjunction with appropriators below. In support of this statement of the law of appropriation the court cites the classical authorities upon the common law of riparian rights Angell on Watercourses and the opinion of Justice Story in Tyler v. Wilkinson. 24 Again, in Hill v. Smith 25 the court speaks of the "notion which has become quite prevalent, that the rules of the common law touching water-rights have been materially modified in this State upon the theory that they were inapplicable to the condition found to exist here, and there- then each alike would be entitled to 22 Bear R. Min. Co. v. New York the reasonable use of the water for M. Co., 8 Cal. 327, 68 Am. Dec. 325, proper purposes," but that under the 4 Morr. Min. Rep. 526. Modifying new rule the first appropriator must Hill v. King, supra, decided just a be held entitled to the exclusive enjoy- short time before, though the rule of ment, which he need not share with Hill v. King has since prevailed as a any subsequent claimant, however ex- general principle. Conrad v. Arrow- tensive might be the prior use. As head etc. Co., 103 Cal. 399, 37 Pac. already above remarked, this is the 386. general rule to-day. The Chief Jus- 23 23 Cal. 486, 15 Morr. Min. Rep. tice in Hill v. King used the word 185. "reasonable," but only with reference 24 4 Mason, 401, Fed. Cas. No. to the subsequent claimant, and with- 14,312. out any attempt to place such a re- 25 27 Cal. 481, 4 Morr. Min. Rep. etriction on the prior appropriator. 597. 332 (3d ed.) Pt. IIL THE LAW OF PRIOB APPKOPKIATION. 312 fore inadequate to a just and fair determination of controversies touching such rights." And says: "This notion is without any substantial foundation. The reasons which constitute the groundwork of the common law upon this subject remain undis- turbed. The conditions to which we are called upon to apply them are changed, and not the rules themselves. The maxim, 'Sic utere tiw ut alienum non laedas,' upon which they are grounded, has lost none of its governing force; on the contrary, it remains now, and in the mining regions of this State, as operative a test of the lawful use of water as at any time in the past, or in any other country. This maxim is one which every riparian proprietor is bound to respect, and it is no less obligatory upon those who use and divert water for mining purposes. So that in all controversies like the present the question to be deter- mined after all is the same as that presented by a like controversy between riparian proprietors," etc. The rule which the court then lays down is not by any means the rule of the common law of riparian rights. That rule of correlative use is that "each must submit to that degree of inconvenience and hardship in the exercise of his rights which results from the existence of like rights in others, ' ' 1 and instead of laying dow r n such a rule, Hill v. Smith speaks of it disparagingly as a notion which "tolerates and winks at some uncertain and indeterminate amount of injury by the one" to the other. Hill v. Smith did not in actual decision attempt to restrict the exclusiveness of the prior right; its language, however, in the above passage, is nevertheless a general declaration that the analogies of riparian rights should be applied, and it has been regarded as supporting the rule that the law of appropriation should be made to conform to that of riparian rights in limiting the prior appropriator to a "reason- able" use so as not unreasonably to prevent use by others on the arbitrary claim of priority. (3d ed.) 312. The Dictum in Basey v. Gallagher. These early Cali- fornia attempts to minimize the departure of the law of appro- priation from the common law of riparian rights, and to declare the appropriator limited to a "reasonable" use correlatively to l Parker v. American etc. Co., 195 Mass. 591/81 N. E. 468, 10 L. K. A., N. S., 584. 312 Ch. 14. SENIOE AND JUNIOR BIGHTS. (3ded.) 333 the use of subsequent appropriators, are now almost forgotten. They are due largely to the reluctance of the California court to admit that it had taken upon itself to set up an entirely new system of law. To-day, the great weight of authority denies the idea that there can be an "unreasonable" priority, because of any policy favoring subsequent claimants. 2 The explanation of the above cases is probably historical, as an attempt to controvert criticism, rather than an attempt to formulate a policy. Possibly, however, it was with these cases in mind that Mr. Justice Field (who was thoroughly familiar with them, having been Chief Justice of California, though not having sat upon any of the above cases) said in Basey v. Gallagher: 3 "Water is diverted to propel machinery in flourmills and sawmills, and to irrigate lands for cultivation as well as to enable miners to work their claims; and in all such cases the right of the first appro- priator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining ground or agri- cultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the neces- sities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual." Mr. Justice Beatty, in Idaho, now judge of the United States district court, in commenting upon this passage, reflects what, as said above, is undoubtedly the general law to-day, saying: "This language has been seized upon as justifying the equitable, if not equal, division of the water among all desiring or needing it, regardless of the claim of the prior appropriator. Such a construction is not justified, and would make the decision incon- sistent with itself as well as with the other decisions of the same court. 4 It is evident that all the court means by this language is that the first appropriator shall not be allowed more than he needs for some useful purpose ; that he shall not, by wasting or misusing it, deprive his neighbor of what he has not actual use for. In 98 2 Lack of proof of facts showing 3 87 U. S. 670, 22 L. Ed. 452, 1 correlative reasonableness results sua Morr. Min. Rep. 683. Italics ours. sponte in remanding a cause at com- * Citing Jennison v. Kirk, 98 U. S. mon law, but is wholly immaterial 461, 25 L. Ed. 240, 4 Morr. Min. Rep. under the law of appropriation. 504; Broder v. Water Co., 101 U. S. Hough v. Porter, 51 Or. 318, 95 Pac. 276, 25 L. Ed. 790, 5 Morr. Min. Rep. 782, 98 Pac. 1083, 102 Pac. 731. 33. 334 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 312 U. S. 461, 4a supra, the court says: 'The owners of a mining claim and the owner of a water-right enjoy their respective properties from the dates of their appropriation the first in time being the first in right; but when both rights can be enjoyed without inter- ference with or material impairment of each other, the enjoyment of both is allowed.' It clearly follows, as the courts have certainly held, that when all cannot use the water without injury to the prior appropriator, the other must yield to his superior right." 5 Mr. Kinney, after quoting this and other similar authorities, 6 says : "From these authorities it is apparent that the rule in the arid region is settled that a prior appropriator can take the waters of a stream to the full extent of his original completed appro- priation, and others claiming an appropriation in the waters subsequent to the first appropriation cannot devest the first of his rights, even if the first diverts all the water of the stream, provided he applies it all to some beneficial use or purpose." 7 And he also says: "A construction of the sentence from Basey v. Gallagher quoted above, that an equitable, if not an equal, division of the water among all desiring or needing it, regardless of the claim of the prior appropriator, was intended, cannot be justified." 8 If we were to regard the contention of "reasonable priority" to rest solely on the few early California attempts to establish it, together with Basey v. Gallagher, it could be regarded as dis- carded. But the decisions which, as a whole, so firmly hold to the exclusiveness of priority, were given while the public domain was a vast unsettled region, and rights were to be adjusted between a few individuals rather than whole communi- ties. To-day the lands have been far more fully settled, the water users on many streams are beginning to crowd each other, and the "exclusiveness" rule of priority comes more and more in con- flict with the community idea. Justice is coming more and more to demand an equitable co-relation of the users for the common good, and these changed conditions have caused here and there revivals of the idea that the priority must be reasonable, all things and evidence being considered, or it will not be fully enforced. 4a 25 L. Ed. 240, 4 Morr. Min. Rep. E. g., Hillman v. Hardwick, 3 504. Idaho, 255, 28 Pac. 438. 5 Drake v. Earhart, 2 Idaho, 750, 23 7 Kinney on Irrigation, p. 369. Pae. 541. 8 Kinuey on Irrigation, p. 390. 313 Ch. 14. SENIOR AND JUNIOR RIGHTS. (3d ed.) 335 (3d ed.) 313. Recent Tendencies. This is likely to be a growing doctrine, with its leading authority in the case of Union Min. Co. v. Dangberg. 9 This opinion was written by the late Judge Hawley, one of the ablest of those judges who had grown up with the West from pioneer times. In a previous decision while Chief Justice of Nevada he had said: "The law which recognizes the vested rights of prior appropriators has always confined such rights within reasonable limits What is a reasonable use depends upon the peculiar circumstances of each particular case." 10 This he applied in Union Mining Co. v. Dangberg, 11 when later judge of the United States district court in Nevada. In that case he decided that the rights of the many water users involved could be adjusted on the same basis as though they were riparian proprietors, though they were also appropriators having differing priorities. After saying that courts have, in the application of riparian rules, in order to allow all riparian proprietors "to make a reasonable use of the water," decreed a full flow for a definite period of time as reasonable, he asks "Why should not such a rule be followed in the present case?" Such a decree, he says, promotes peace, prevents litigation, and substantially reaches the end of justice. "The endless complica- tions that have arisen in this case, the exigencies and necessities of the parties, as well as the number of parties involved, justify this court in adopting this rule." He accordingly decrees to defendants at all times use for domestic purposes, to complain- ant a full flow of six thousand inches of water to run its seven mills except during the irrigation season, during which season the defendants (irrigators) may take the whole, if necessary. This decree thus placed all the one hundred and twenty -six defend- ants on the same footing against complainant, though complain- ant was prior in his appropriation to some of them, and subsequent in time to others; and gave complainant a "reasonable" use of the river for all its seven mills taken together, though each mill had a different priority as against different defendants; and it gave to all subsequent appropriators a right to domestic use against the complainant, though complainant was, as to most of them, the prior appropriator. The result practically ignores 9 81 Fed. 73. language of the common law of ripa- 10 Barnes v. Sabron, 10 Nev. 243, 4 rian rights. Morr. Min. Rep. 673. This is the n 81 Fed., 73. 336 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 313 priorities, and proceeds on independent lines simply to settle equitably and upon moral fairness the conflict between the mill community and the irrigation community. That such a "reason- able" result, fair to all, was warranted by the common law of riparian rights between riparian proprietors, as Judge Hawley first points out, would seem clear enough as the doctrine of riparian rights is understood in the West; but it is reached under the law of appropriation only by refusing to accept the details of what took place in the fifties and sixties, when Nevada was sparsely settled, as measuring (on the principle of priorities) what would be just when the lands had been settled up after the lapse of a generation. 12 Judge Morrow, of the United States appellate court for the ninth circuit, has accepted this as his rule of decision. In Anderson v. Bassman 13 he refers to Judge Hawley 's opinion as controlling. A large community of water users on a stream lying in both Cali- fornia and Nevada was involved, some claiming riparian rights under the common law of riparian rights as in force in California except for appropriations on public lands, 14 some claiming as public land appropriators in California under the law for such appropriations also recognized there, 15 and others claiming in Nevada as appropriators under the law of appropriation as the sole law recognized in Nevada. 16 To have attempted to sift out the priorities in this seething mass of conflicting rights would have been an immense task, and would have resulted in prefer- ences to some over others; wherefore Judge Morrow ignored priorities and proceeded simply to an equitable apportionment among all, declaring that under the law of appropriation, just as well as that of riparian rights, the use must be "reasonable." It certainly reached a just result, and the only practical one, though, as has been said, 17 it does so only by curtailing what has 12 In Mexico, when there is insuffi- anzas de Tierras y Aguas, sec. 2, p. cient water to supply the irrigation 138. , rights obtained by grant upon the 13 140 Fed. 14. public domain, the rule is: "In such 14 Lux v. Haggin, 69 Cal. 255, 10 cases, that which appears to be more Pac. 674. Supra, sec. 115. just and equitable is to disregard the 15 Ibid. That is, rights obtained respective antiquity of the grants, and, while the stream still flowed over pub- considering them equal, to proceed to lie land, and before private title had make a pro rata division, either by attached to the bordering lands, days or by nights, or by days by turn, 16 Supra, sec. 118. so that the profit and loss shall remain 17 19 Harvard Law Review, 475, equally divided among them." Orden- note. 313 Ch. 14. SENIOR AND JUNIOR EIGHTS. (3ded.)33? hitherto been the doctrine of appropriation, in order to reach jus- tice among large communities. In his opinion, Judge Morrow said: "Whether the water is taken from the stream in California by the riparian owner for the purpose of irrigation, or is taken from the stream in Nevada by the appropriator for the same purpose, the right is equally sanctioned by law and is subject to the same limitations; that is to say, the right to use the water from the stream for irrigation purposes in either State under either right must be a reasonable use, to be determined by the circumstances of each case, and with due regard to the rights of others having the same beneficial use in the water of the stream." Then follows, as a statement of the rights of the Nevada appropriators, a quotation from Union Min. Co. v. Dangberg setting forth the correlative rights of riparian owners. Judge Morrow then says: "But, in the view I take of this case, the question of priority in the rights acquired by the original settlements along the river is not of great impor- tance." He concludes: "The right of each is to have a reasonable apportionment of the water of the stream during the season of the year when it is scarce." 18 Judge Morrow has since handed down another opinion on the same lines from the United States circuit court of appeals, 15 in a case arising in Idaho, where appropriation is the sole law of waters. He says that appropriation does not give an exclusive right, but, to prevent monopoly, an equitable and reasonable use and adjudication must be made. The prior appropriation of the whole stream to run a current-wheel was disallowed against a subsequent appropriation for the irrigation of a large community, saying that the preservation of a large river to run a single appropri-ator's current- wheels would be highly unreasonable when it deprives vast regions of the right to irrigate. This may be good common law as to riparian proprietors, as understood in the West, none of whom can exclude other riparian proprietors entirely from reasonable use of the stream for irrigation; but it practically dissolves the law of appropriation in the law of riparian rights. In support of his opinion Judge Morrow quotes 18 Decreed, plaintiffs to have the 19 Schodde v. Twin Falls L. & W. full flow five days in every ten during Co., 161 Fed. 43, 88 C. C. A. 207. June to October; defendants to have the water during the other five days. Water Bights 22 338 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 313 the passage from Basey v. Gallagher above given, and also a case in Montana to the same effect, 20 that there should be an "equita- ble" division among appropriators in spite of priorities. Beside this tendency in some judicial quarters, the recent "Water Code" legislation also seems to have some tendency in this direction. We have already referred to statutes enforcing pro-rating of loss in dry seasons. Moreover, the Wyoming con- stitution provides: 21 "Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests." There was much debate over this section in the constitutional convention. Not over the clause we have italicized, but, on the contrary, over the first clause, because, it was argued, it laid too great a stress on priority. For example : ^ "If this section is adopted, it seems perfectly clear to me that no other considera- tion can matter or can be employed to aid in determination of rights I believe it [priority] should properly be the greater consideration, but to allow nothing else to determine, I think this is an extraordinary decision," and said all the "equities" should also be considered in each case. In reply, among other things, it was said: "To provide that priority of appropriation shall not give the better right, but that other matters shall come in, is simply, sir, to throw this matter into the courts." This debate indicates the prevailing sentiment (and, as already said, the prevailing rule of law) that the courts shall have no discretion in restricting the force of priority, but the last clause of the section certainly seems an adoption of the contrary rule. Under the common law of riparian rights the ultimate test in each case is what is reasonable under all the circumstances. Each case practically comes down to the discretion of court or jury deciding what is reasonable upon the entire evidence. The rulings of the courts above referred to are likewise shaping the law of appropriation into a discretionary system, with power in the Chancellor to apply his ideas of fairness whenever priorities would work injustice because of complication of the history of 20 Fitzpatrick v. Montgomery, 20 Co. (Idaho, 1908), 164 Fed. 927, 92 Mont. 181, 187, 63 Am. St. Rep. 622, C. C. A. 259. 50 Pac. 416, 417. See, also, Farmers' 21 Article 8, sec. 3. Irr. Dist. v. Frank, 72 Neb. 136, 100 22 Journal and Debates of the N. W. 286; Salt Lake City v. Salt Wyoming Constitutional Convention, Lake etc. Co., 25 Utah, 456, 71 Pac. pp. 534, 535. 1069; McCarthy v. Bunker Hill etc. 314 Ch. 14. SENIOE AND JUNIOR RIGHTS. (3ded.) 339 claims, or because of selfish results of enforcing them. Though it is a weakening of the strict rule of priority and contrary to the general rule to-day, yet this principle, which might be called "the principle of unreasonable priority," is likely to be a growing doctrine as the irrigated regions become more closely settled. 23 (3d ed.) 314. Same. Among the results of the foregoing modifica- tion of the law would be the enforcement of pro-rating among appropriators in times of scarcity; the settlement of controversies in many cases by enforcing rotation; the conservation of natural resources by preventing monopoly; and a general equality (instead of priority) of right among the members of the water- using community. For unsettled regions it Is not applicable, just as the common law of riparian rights is there inapplicable; but for the settled regions it has its advantages. In settled regions it would bring the systems of appropriation and riparian rights much together, the chief remaining difference in such regions being that under the latter the water users would all lie within the same valley, while under the former they would be a mixture of valley and nonvalley users. But under both sys- tems the chief test of use would be what is reasonable for each user consistently with equal rights for all, rather than prior rights for some. 24 23 Judge Morrow has expressed to provide for the fluctuating discharge the writer his approval of the forego- of the stream from year to year, ing presentation. Plainly, all people who have for The matter of rejecting appropria- several years been able to divert tions if demanded by the "public in- water from a stream and who have terest," following Wyoming, is in made valuable improvements depend- f orce in other States. See Young v. ent thereon should be protected by the Hinderlider (N. M.), 110 Pac. 1045. law in the continued use of the waters. See, also, S. D. Stats. 1907, c. 180, When, however, times of shortage sec. 23. See infra, sec. 415. occur, it is manifestly unjust to cut 24 Commenting upon this matter, off from the use of this water supply Mr. Morris Bien, of the Federal Rec- those who have valuable property de- lamation Service, says: pendent thereon if there is any means "The principle of priority of ap- of preventing it. propriation was of great value in or- "A system of rotation in the use of der to establish the idea that no the water will enable all parties to get greater appropriation of water should sufficient for all their actual needs be allowed upon any stream than when the application of the strict could be reasonably met from the rule of priority might deprive a num- water supply available in that stream. ber of the water needed to preserve The adoption of laws tending' to so their investments. The system of limit appropriations was the first im- rotation in the use of water has been portant step. When this is accom- adopted in many irrigation communi- plished the next step will be to ties, and the law must necessarily 340 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 315 (3d ed.) 315. Conclusions. (a) Successive appropriators are inde- pendent and priority governs, on the one hand; on the other, the surplus over the prior appropriation vests in the later appro- priator. Each appropriator is a prior one as against all who are subsequent to him, and has, against the subsequent ones, an exclu- sive right to have the stream flow for his use to the extent of his appropriation. (b) The general rule is against modifying the force of priority either in times of scarcity or where it extends to a whole stream, or under any other circumstances; but statutes and decisions show an increasing tendency to some modification. recognize this principle in order to there was so much else of importance secure to all parties their proportional at stake that should be accomplished rights in the streams. In many cases first. My idea was that in time when if the use of the water is rotated, valuable interests had grown up to the there would be ample for all the water limit of the available water supply users, while in cases of extreme short- the courts would not permit the de- age the agricultural improvements of struction of these interests merely to all could be preserved from destruc- enforce rigidly a theoretical plan of tion. The rigid doctrine of priority water division when a modification involves too much the idea of a based upon reasonable use in propor- monopoly to be fostered by decisions tion to the several interests would pre- of our courts, and must undoubtedly serve them all." in time give way to a distribution of Similar views were expressed by Mr. the water that shall preserve all in- Bien in a paper before the National Ir- terests in the most practical manner. rigation Congress of 1909, in Spokane, "In drawing up my water code it did Washington, as elsewhere quoted, not seem wise to force this idea, as Supra, sec. 140. 316-317. (Blank numbers.) 318 Ch. 15. WHO CAN APPEOPBIATE. (3d ed.) 341 CHAPTER 15. WHO CAN APPROPRIATE. 318. Persons generally. 319. Trespassers. 320. Tenants in common. 321. Same. 322. Riparian owners. 323. Early riparian settlers in California. 324. Same. 325. Corporations. 326. Appropriations by the United States. 327-330. (Blank numbers.) (3d ed.) 318. Persons Generally. There is no restriction respecting the persons who can appropriate. "The silent acquiescence with which the government, prior to the act of Congress of July 26, 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 and 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 posses- sion and beneficial use ; 1 and title, or the right to acquire title, in the place of intended use has never been a necessary element in the ownership of appropriated water. Besides, since the prior appropriation of water is a mode of acquiring a right in real prop- erty by purchase, 2 the alienage of the defendant was a matter be- tween him and the 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 the water itself as still open to another to take. " 3 In the case from i Citing Maeris v. Bicknell, 7 Cal. 2 Citing Hill v. Newman, 5 Gal. 261, 68 Am. Dec. 257, 1 Morr. Min. 445, 63 Am. Dee. 140, 4 Morr. Min. Eep. 601; Davis v. Gale, 32 Cal. 26, Rep. 513. 91 Am. Dec. 554, 4 Morr. Min. Rep. 3 Citing Norris v. Hoyt, 18 Cal. 604; De Necochea v. Curtis, 80 Cal. 217; Racouillat v. Sansevain, 32 Cal. 397, 20 Pac. 563, 22 Pac. 198. 376; Lobdell v. Hall, 3 Nev. 516. 342 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 319 which this is quoted 4 appropriation by an alien was held good. 5 A lessee of land may be an appropriator of water for irrigating that land. 6 So may "a. mere squatter or lessee or other person in possession." 7 (3d ed.) 319. Trespassers. So far as water is concerned, appropria- tions may be made by trespassers upon public land; which, in fact, is the way the law of appropriation arose. 8 Title to the place of use is immaterial. 9 The same is true of a ditch on public land so far as the United States (or a patentee of the United States) is not a party to the suit ; and even against them also so far as the act of 1866 remains in force. 10 So, likewise, appropriations can be made by trespassers on private land. If the water also belongs to another, the tres- passer has an "appropriation" only in the sense that nobody but the true owner can dispute his use ; u but it is not an ' ' appropria- tion" against the true owner, since, for example, the use of water upon land to which it is already appurtenant before the trespass will not dissever the water from the land, nor confer any right in the trespasser to divert it or sell it after being lawfully ejected from the land. 12 But if the trespass is only upon the land (the water itself being open to appropriation, as flowing over public land, for example, and carried by the trespasser to the land trespassed upon), then the water-right belongs to the trespasser absolutely. Such appropriations carried to private land of another by trespassers do not make such water-right appurte- 4 Santa Paula Water Works v. citing Rowland v. Williams, 23 Or. Peralta, 113 Cal. 38, 43, 45 Pac. 168. 515, 32 Pac. 402; Seaweard v. Pacific 5 Accord, Lobdell v. Hall, 3 Nev. L - Co.,^49 Or. 157, 88 Pac. 963. 507, upholding appropriation by an s Supra, sec. 82. Indian; Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741, 743, appro- 9 Supra, sec. 281. This is a dif- priation by a Chinaman. See Long ierent question from how far a tres- on Irrigation, sec. 35; Kinney on Ir- P asser can be regarded as a riparian rigation, sees. 154, 155. proprietor, m which case the land TV. oo -\/r i IK right is m question. Supra, sec. 261; 6 Sayre v. Johnson, 33 Mont. 15, y fy. 81 Pac. 389 ; Seaweard v. Pacific etc. Co., 49 Or. 157, 88 Pac. 963; Cooper In f ra > sec - 439 - v. Shannon, 36 Colo. 98, 118 Am. St. n Supra, sec. 246, appropriations Rep. 95, 85 Pac. 175 (dictum). by disseisin. 7 Hough v. Porter, 51 Or. 318, 95 ^ Alta etc. Co. v. Hancock, 85 Cal. Pac. 732, 98 Pac. 1083, 102 Pac. 728, 219, 20 Am. St. Rep. 217, 24 Pac. 645. 320 Ch. 15. WHO CAN APPROPRIATE. (3ded.) 343 nant to the land upon which it is so used. 13 The trespasser can change the use to other real property. 14 (3d ed.) 320. Tenants in Common. Where several join in making an appropriation, they will usually be tenants in common of the water-right. 15 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 interests of the tenants in common that can be made is by ordering a sale and a division of the proceeds. 16 Where two join in a diversion, but are to use the water on their separate lands, it has been held that there is not such unity of user as will constitute tenancy in common. 17 13 Smith v. Logan, 18 Nev. 149, 1 Pac. 678, approved in Alta etc. Co. v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645. As to appropria- tions by a "mere interloper" against a riparian owner, see Hutchinson v. Watson D. Co., 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059, and Sternberger v. Seaton etc. Co., 45 Colo. 401, 102 Pac. 168. 14 Seaweard v. Pacific etc. Co., 49 Or. 157, 88 Pac. 963. "Even trespassers upon land may acquire the exclusive right to the use of water that is used either to irrigate such land or is used thereon for other purposes, and such a right, when once acquired, is paramount to the rights of the true owner or claimant of the land, and the water claimant, when he is dispossessed of the land, may di- vert and use the water elsewhere than on the land if he can so divert and use it." Patterson v. Ryan (Utah, 1910), 108 Pac. 1118, citing the sec- ond edition of this book. Compare Snyder v. Colorado etc. Co. (Colo. C. C. A.), 181 Fed. 62. Contra, Avery v. Johnson (Wash.), 109 Pac. 1028. 15 Abel v. Love, 17 Cal. 233, 11 Morr. Min. Rep. 350; Bradley v. Harkness, 26 Cal. 69, 11 Morr. Min. Rep. 389; Lytle Creek etc. Co. v. Per- dew, 65 Cal. 447, 4 Pac. 426; Frey v. Lowden, 70 Cal. 550, 11 Pac. 838; Or'seza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034; Moss v. Rose, 27 Or. 595, 50 Am. St. Rep. 743, 41 Pac. 666; Games v. Dalton (Or.), 110 Pac. 170; and see Cal. Civ. Code, sec. 842. As to partnership in water-rights, cf . Beckwith v. Sheldon, 154 Cal. 393, 97 Pac. 867 ; Bradley v. Harkness, supra. 16 McGillivray v. Evans, 27 Cal. 92, 11 Morr. Min. Rep. 209; Lorenz v. Jacobs, 59 Cal. 262; Long on Irriga- tion, sec. 75. The cases here cited laid stress upon the fact that the ap- propriation was for mining. In a re- cent case, Verdugo W. Co. v. Verdugo (1908), 152 Cal. 655, 93 Pac. 1021, dealing with irrigation and with a riparian right, actual partition and apportionment were upheld. As to which see, also, Rose v. Mesmer, 142 Cal. 322, 75 Pac. 905. Compare infra, sec. 751, apportionment between ripa- rian owners. McGillivray v. Evans has been cited approvingly in Lanfers v. Henk. 73 111. 411, 24 Am. St. Rep. 267, 5 Morr. Min. Rep. 67; Allard v. Carleton, 64 N. H. 25, 3 Atl. 313; Brown v. Cooper, 98 Iowa, 455, 60 Am. St. Rep. 197, 67 N. W. 378, 33 L. R. A. 61 ; Head v. Amoskeag Co., 113 U. S. 9, 5 Sup. Ct. Rep. 441, 28 L. Ed. 889. Suits for partition of mines likewise generally can result only in a sale. 2 Lindley on Mines, 2d ed., sec. 535, p. 887, note 1. 17 City of Telluride v. Davis, 33 Colo. 355, 108 Am. St. Rep. 101, 80 Pac. 1051, sed qu. 344 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 320 Use by one tenant in common of more than his share may be enjoined, 18 but it does not become adverse so as to start prescription until notice thereof is brought home to the other ; 19 likewise where he sells more than his undivided interest, actual ouster and notice are necessary to 'constitute adverse use thereunder. 20 Nonuse by one does not diminish his right in favor of the others. 21 The wrongful acts or use of one do not give the other a right to dig a new ditch and take all. 22 Each must consider seepage and evapora- tion in the amount he is entitled to divert, 23 and each may alone sue a trespasser to enjoin wrongdoing, 24 or may sell his interest without the consent of the others. 25 A cotenant cannot be com- pelled to contribute for expense in replacing a dam or constructing a ditch (the original ones being washed out) at a point other than where the original ones were constructed, unless it be shown that the new ones answer the same purposes and results and give the cotenant the same rights as the old ones. 1 Under a California statute a tenant in common is entitled to treble damages against his cotenant under certain circumstances. 2 Voluntary unincorporated associations of all owners along a stream constitute them tenants in common, 3 and consent is not necessary to a sale of the interest of any one of them. 4 But if they incorporate, obtaining a majority of all owners into the cor- 18 Lorenz v. Jacobs (Cal.), 3 Pac. 25 Biggs v. Utah etc. Co., 7 Ariz. 654; Carnes v. Dalton (Or.), 110 Pae. 331, 64 Pac. 494. 170. Cf. City of Aberdeen v. Lytle When parties claim their rights etc. Co. (Wash.), 108 Pac. 945. through the same diversion and from 19 Smith v. North Canyon etc. Co., the same ditch, through which the ap- 16 Utah, 194, 52 Pac. 283. propriation was originally made by 20 Beers v. Sharpe, 44 Or. 386, 75 them or by their predecessors in in- Pac. 717. terest, they are tenants in common; 21 Ibid. and where, in a suit with others on the 22 Arnett v. Linhart, 21 Colo. 188, stream involving rights thereon no 40 Pac. 355. issues are framed between such ten- 23 Anderson v. Cook, 25 Mont. 330, ants in common, their relative rights 64 Pac. 873, 65 Pac. 113. may bo left undetermined, and only 24 Lytle Creek etc. Co. v. Perdew, their rights as against other parties 65 Cal. 447, 4 Pac. 426; Roclgers v. to the suit will be decreed. Hough v. Pitt, 129 Fed. 932; Meagher v. Har- Porter, 51 Or. 318, 95 Pac. 732, 98 denbrook, 11 Mont. 385, 28 Pac. 451. Pac. 1083, 102 Pac. 728. The eotenant is not an indispensable i Fillmore City v. Fillmore Co. party to the determination of one's (Utah), 103 Pac. 967. rights. The Debris Case, 16 Fed. 25, 2 r , R . , lfisq pnp . c . p , 5 4 fe? l^^T/ fii *'*"% ^ 8 a 42 S 843; ^70 D Co ^Be-' 2 2 a( *' f* V w T V ?7fi. 1 uette > 1 Caf. 543, 87 Pac. 10. v. Story, 64 Fed. 524, 30 L. R. A. 265, 12 C. C. A. 250; Himes v. Johnson, 3 Smith v - North Canyon etc. Co., 61 Cal. 259; Union Mining Co. v. 16 Utah, 194, 52 Pac. 283. Dangberg, 81 Fed. 73. But cf. 20 4 Biggs v. Utah etc. Co., 7 Ariz. Harvard Law Review, 242. 331, 64 Pac. 494. 321, 322 Ch. 15. WHO CAN APPROPRIATE. (3d ed.) 345 poration, they are not tenants in common with the minority who do not come in, and have no right to control or regulate the use of such minority. 5 (3d ed.). 321. Same. Special statutes sometimes govern disputes be- tween tenants in common. In Wyoming there is a special pro- cedure for the appointment of a distributor in disputes between them. On a verified petition to the district court he is appointed by the court, and has an official capacity with exclusive control during the pleasure of the court ; 6 but this procedure is not ex- clusive of other procedure whereby the court may deal with such disputes under general law. 7 In California a statute 8 provides for contribution between co-owners of a ditch for work on the ditch, but this applies only to work which is on a part of the ditch of which the party from whom contribution is demanded has bene- ficial use, and the work must benefit him; so that work done in fluming and cementing below his point of diversion is not within the statutes. 9 References to some other statutes are given in the note. 10 (3d ed.) 322. Riparian Owners. Under the Colorado doctrine, where riparian rights are not recognized, the only way a riparian owner can get a water supply is by an appropriation, and so they not only can, but must, be appropriators if they would have any rights, generally speaking. 11 Under the California doctrine the reverse is true: priority of use by a riparian owner will give no right against other riparian 5 Bartholomew v. Fayette etc. Co., of co-owners for repair and mainte- 31 Utah, 1, 120 Am. St. Rep. 912, 86 nance. Pac. 481. Oregon. Stats. 1909, c. 216, sec. 61, 6 Mau v. Stoner, 15 Wyo. 109, 87 lien of co-owners for work done after Pac. 434, 89 Pac. 466. ten days' notice; Ibid., sec. 63, water- 7 Stoner v. Mau, 11 Wyo. 366, 72 master may take exclusive charge of Pac. 193, 73 Pac. 548. partnership ditches. 8 Stats. 1889, p. 202, c. 168 (Civ. Utah. Water commissioner, on re- Code, sees. 842, 843). quest, may take charge of works. 9 Arroyo etc. Co. v. Bequette, 149 Stats. 1911, c. 104, p. 145, sec. 12. Cal. 543, 87 Pac. 10. Wyoming. Rev. Stats. -915. See, 10 California. Stats., supra. also > Stats - 1907 > P- 138 - Colorado. Rev. Stats. 1908, p. 1027, In addition to the above, see stat- sec. 4051; Laws 1893, p. 312, concern- " tes i Par * VIII, below, ing lien of co-owner for work done. n Idaho etc. Co. v. Stephenson, 16 Idaho. McLean's Idaho Rev. Codes, Idaho, 418, 101 Pac. 821. Supra, sec. sec. 3311; Laws 1809, p. 108, liability 118. See, also, infra, sec. 366. 346 (3d ed.) Pt. III. THE LAW OF PEIOE APPEOPKIATION. 323 owners, as a general principle. 12 But there is an exception to this general statement, where one riparian owner, an early settler upon the stream, makes an appropriation while the land of the complain- ing riparian owner is still public. (3d ed.) 323. Early Riparian Settlers in California. An early riparian settler on public land in California may get a greater right than the common law gives him against other riparian owners, by appropriating the water before the later riparian settlements were made. Mere priority of settlement is immaterial where not coupled with prior use. But where both settlement and use pre- ceded the settlement of his opponents, he has a public land appro- priation against the others, and is not confined to that relative equality of use which prevails between riparian owners generally. This was clearly laid down in Healy v. Woodruff, 13 and approved (on this point) in Cave v. Tyler. 14 In Healy v. Woodruff the riparian proprietor appropriated water from the same stream on public land before other riparian proprietors had taken up riparian land along it, and was protected therein against subsequent settlers, though it was a larger proportion of the stream than the law of riparian rights would have given him against another existing riparian settler. 15 In Smith v. Hawkins 16 the court reached the same result where the defendant was awarded one hundred inches as an appropriator and an additional amount as riparian right. In Van Bibber v. Hilton, 17 all the parties to the action were riparian proprietors and the defendants were also appropriators. The trial court limited the right of the latter to the amount claimed as appropriators. Judgment was reversed by the supreme court for not also making some allowance as riparian right. And in another case plaintiff's right to an injunction was upheld in the alterna- tive. 18 A riparian proprietor has been given three hundred inches as appropriator in addition to his rights as riparian owner. 19 12 Infra, sees. 670, 739. 18 Huffner v. Sawday (1908), 153 13 97 Cal. 464, 32 Pac. 528. Cal. 86, 94 Pac. 424. 14 133 Cal. 566, 65 Pac. 1089. i Ison v. Nelson Min. Co., 47 Fed. 15 See quotations from this case 199. See, also, Barneich v. Mercy, supra, sec. 244. See, also, Kaler v. 136 Cal. 206, 68 Pac. 589 (semble) ; Campbell, 13 Or. 596, 11 Pac. 301; Prentice v. McKay, 38 Mont. 114, 98 Porter v. Pettingill (Or.), 110 Pac. Pac. 1081 (dictum); Avery v. John- 393. son (Wash.), 109 Pac. 1028. 16 127 Cal. 119, 59 Pac. 295. In Lux v. Haggin, 69 Cal. 255, 4 17 84 Cal. 585, 24 Pac. 308, 598. Pac. 919 (not officially reported, being 324 Ch. 15. WHO CAN APPROPEIATE. (3d ed.) 347 Against existing riparian owners, one riparian owner can obtain no exclusive right ; 20 but it seems clear that an early riparian settler, by diverting water while the land on the stream except his own is public, may acquire by appropriation exclusive rights against riparian settlers subsequently acquiring their lands from the United States, greater than he would himself have had as a riparian owner. (3d ed.) 324. Same. The foregoing was addressed to the claim of an early riparian settler as a public land appropriator on the stream against other riparian settlers later acquiring their land from the public domain. While this may enlarge his right against other riparian owners, it is wholly immaterial as concerns nonriparian owners. Against nonriparian owners, he will not be restricted to the amount actually used as appropriator, but may insist upon the full, though unused, flow, as any riparian owner may. 21 It is true that in one California case where an appropriation had been made on public land of all the water reasonably needed for use on cer- tain riparian land which the appropriator thereafter purchased from the United States, she was not allowed, against a subsequent diversion by a nonriparian owner 22 to dispute this subsequent diversion on the ground of her riparian rights, the decision being rested on the ground that she had all she could reasonably use already. 23 But the later California decisions lay down the rule withdrawn on rehearing), it was said: If a person enters a piece of land "But an appropriation of the water through or adjoining which a stream of a stream flowing upon public lands, runs and appropriates the water to and upon lands held in private owner- some useful purpose before other per- ship, does not affect or destroy ripa- sons have entered any other lands rian rights existing in the stream at upon the same stream, he stands in the time of the appropriation. Both the position of a prior appropriator, rights rights of appropriation and and may divert all of the water of the riparian rights may be acquired by stream if it is necessary for the pur- original and derivative acquisition; pose for which he appropriated it, they may exist together and be held without any obligation upon his part in common as property and each is en- to return any portion of it to the titled to the protection of the law." natural channel." In Kinney on Irrigation, page 452, 20 Infra, see. 739. it is said: "There are a great many 21 In * gec 815 cases where the riparian proprietor is also the prior appropriator of the a Whether the subsequent claimant water of a stream. His rights are was a riparian owner or not is not ex- limited to those of a riparian pro- pressly given m the opinion, but he prietor only when others whose rights seems to >^ ve been a nonriparian would be injured by the diversion have owner. settled upon the stream before he has 23 Senior v. Anderson, 130 Cal. 290, made an appropriation of the waters. 296, 62 Pac. 563. 348 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 325 that a riparian proprietor may insist, as against nonriparian diversions subsequent to his patent, upon having the complete flow so far as it is or may be beneficial to his land, whether he uses it or not, and the first riparian settler will not be limited (against later nonriparian diversions) to the flow claimed as ap- propriator for use. 24 The California law thus seems to be that against other riparian owners, one of them settling upon a stream while the land of the others is still public may get for use all the rights of an appro- priator to an exclusive use of the stream, and at the same time, as against all others (nonriparian owners) subsequent to the date of his settlement, all the rights of a riparian owner to the complete flow of the stream, whether using it or not. 25 As is said in Healy v. Woodruff, 1 this gives great advantage to the first settlers on a stream, but is the advantage which in California necessarily fol- lows prior occupancy of public land when coupled with a prior appropriation of water thereon ; the former giving the common-law right of full flow against later nonriparian appropriation; the lat- ter giving the full public land appropriative right against later riparian patentees. 2 (3d ed.) 325. Corporations. A corporation may appropriate water, and corporations frequently do. 3 A city owning water-rights as a municipal corporation cannot interfere with private appro- priators merely because it is a city. 4 Some cities have succeeded 24 Infra, sees. 452, 815 et seq. The authorities are, however, in 25 This last was expressly held in some confusion because the distinction Huff ner v. Sawday, supra, and Miller v. between riparian and nonriparian Madera Co., 155 Cal. 59, 99 Pac. 502, claimants has not always been borne 22 L. R. A., N. S., 391. in mind. Infra, sees. 795, 814, protec- The rule in Oregon seems to be that tion of riparian right, a riparian proprietor asserting rights 1 QuQted 2 ^ under the law of appropriation there- by waives his riparian rights, and 2 As to diversions by a riparian after his needs as appropriator are owner giving no right, but amounting satisfied, he cannot claim as riparian to wrongful disseisins, see supra, see. proprietor against nonriparian owners 246 et seq., discussing Duckworth v. the right to have the excess flow in the Watsonville Co. channel of the stream Davis v. 3 E Montecito etc . Co . v . ganta Chamberlain, 51 Or. 304 98 Pac ,154; Barbar * ' 144 Cal< 578 77 Pac m3 ^ lUl o m n 4 ltD To'a r> I ' People ex rel. H^yneman v. Blake, 19 Pac. 200, 97 Pac. 539, saying he may Cal F 57 9; North e ( c Co- v . Orient etc. elect which right he will claim under, c 1 p ' ed _ 522 6 gaw _ 2gQ Q Mon . but cannot claim both; Seaweard v. M .' -p ,_ 9Q Duncan, 47 Or. 640, 83 Pac. 1043; - **?' Zy ' Low v. Schaffer, 24 Or. 239, 33 Pac. * Santa Barbara v. Gould, 143 Cal. 678. 421, 77 Pac. 151. See supra, sec. 308. 325 Ch. 15. WHO CAN APPROPRIATE. (3d ed.) 349 to the old rights of Mexican pueblos, notably Los Angeles, but this right attaches to few cities. 5 A corporation organized under the laws of a Territory may be an appropriator, as well as one organ- ized under the laws of a State. 6 A foreign corporation cannot be an appropriator without complying with the laws of the State by filing articles. 7 A corporation is not bound by water-right agree- ments of a stockholder with third persons. Thus, a water-right from one company is not a right to water from another company S whose stock is held by the first 'company. 8 In California, a two- ^ thirds vote of stockholders is required to authorize a water com- pany to divide up its water-rights among its stockholders, in some cases. 9 A Colorado case upholds a contract exempting the holder of a water-right from corporation assessments. 10 A corporation may appropriate water, as an appropriator. It need not own any land nor be a mere combination of landowners ; u and where it is a combination of some landowners or private ap- propriators, it has no right to control or regulate the use of owners not in the corporation, though those in the corporation are a majority of all users upon the stream. 12 In the arid States, the corporation is considered an appropriator only in a qualified way, the consumers whom it supplies being regarded as owning the water- rights in the stream for most purposes; but in California, not only are the consumers not appropriators, but even appro- priators who incorporate, conveying their rights to a co-operative corporation, cease to be appropriators. 13 This question as to whether consumers from corporations are appropriators is further considered hereafter; as is also the question of the rights and duties of corporations as quasi public servants. 14 Articles of incorporation to divert water do not include build- ing of reservoirs to store it. 15 A director may make a separate 5 Supra, see. 68. 188 U. S. 545, 555, 23 Sup. Ct. Rep. 6 Gutierres v. Albuquerque etc. Co., 3.38, 47 L. Ed. 588. 188 U. S. 555, 23 Sup. Ct. Rep. 338, 12 Bartholomew v. Fayette etc. Co., 47 L. Ed. 588. 31 Utah, 1, 120 Am. St. Rep. 912, 86 7 Telluride etc. Co. v. Rio Grande Pac. 481. etc. Co., 187 U. S. 582, 583, 23 Sup. 13 Fuller v. Azuza etc. Co., 138 Cal. Ct. Rep. 178, 47 L. Ed. 313. 204, 71 Pac. 98. 8 Lanham v. Wenatchee etc. Co., 48 14 See infra, sees. 1260 et seq., Wash. 337, 93 Pac. 522. 1324, 1338. 9 Civ. Code, sec. 309. 15 Seeley v. Huntington etc. Assn., 10 Farmers' etc. Co. v. Henderson, 27 Utah, 179, 75 Pac. 367. See Wyo. 46 Colo. 37, 102 Pac. 1063. Stats. 1911, c. 29, p. 43, curing de- li Gutierres v. Albuquerque etc. Co., fective articles. 350 (3d ed.) Pt. in. THE LAW OF PEIOE APPROPEIATION. 326 appropriation. 16 A city may have power under its charter (and Los Angeles has such power) to own its own water plant, but must not allow waste. 17 A city may sell its water-rights to a water company. 18 A corporation otherwise competent may acquire a water-right under the United States Reclamation Act. 19 (3d ed.) 326. Appropriations by the United States. It has been said that the United States Reclamation Service must get its water under State law like private appropriators. 20 As a matter of fact, the United States Reclamation Service adopts that course. On the other hand, military and Indian reservations are held to have rights though no appropriation has been made, and not restricted to actual use if use is made. The matter is .elsewhere considered. 21 16 Farm Inv. Co. v. Alta etc. Co., 33 Utah, 289, 93 Pac. 828. See, also, 28 Colo. 408, 65 Pac. 22. City of Colorado Springs v. Colorado 17 Fellows v. Los Angeles, 151 Cal. City, 42 Colo. 75, 94 Pac. 316. 52, 90 Pac. 137. See, also, Aylmore l 37 Land Dec. 428. v. City of Seattle, 48 Wash. 42, 92 20 United States v. Burley, 172 Fed. Pac. 932. Likewise, South Pasadena 615; affirmed in Burley v. United v. Pasadena L. & W. Co. (1908), 152 States, 179 Fed. 1, 101 C. C. A. 429. Cal. 579, 93 Pac. 490. See Wyoming 21 Supra, sec. 197 et seq. Es- Const., art. 13, sec. 5. pecially see. 207. Infra, sec. 1394 et 18 Brummitt v. Ogden W. W. Co., seq., national irrigation. 327-330. (Blank numbers.) 331,332 Ch. 16. WHAT CAN BE APPKOPBIATED. (3d ed.) 351 CHAPTER 16. WHAT CAN BE APPROPRIATED. 5 331. Classification of waters. A. WATERCOUKSES. 332. Water in a surface watercourse. 333. What constitutes a watercourse. 334. Same Definition. 335. Same Examples. 336. Springs. 337. Surface tributaries. 338. Sloughs. B. NAVIGABLE AND INTERSTATE STREAMS. 339. Navigable streams. 340. Interstate streams. 341. Same Controversies between States Kansas v. Colorado. 342. Between riparian owners in one State and appropriators in an- other State. 343. Same Between appropriators in different States. 344. Difficulties of procedure. 345. Conclusions regarding interstate streams. C. STANDING AND DIFFUSED WATEB. 346. Lakes and ponds. 347. Flood or storm or surface water. 348. Drainage of surface water. 349. Use of surface water. 350. Swamp lands. 351. Underground water. 352-360. (Blank numbers.) (3d ed.) 331. Classification of Waters. Speaking in the broadest terms, water occurs in two general classes: bodies of definite form and situation (such as watercourses, if running; lakes, if stand- ing), and occurrences uncertain in situation and without form, such as diffused surface water in swamps. A. WATERCOURSES. (3d ed.) 332. Water in Surface Watercourse. Water in a surface watercourse is the type case of appropriation. The cases almost 352 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 333 invariably speak only of "running streams," "flowing water," "water in a watercourse." This is also the language of the Cali- fornia Civil Code, 1 providing what can be appropriated (on public land). "The right to the use of running water flowing in a river or stream or down a canyon or ravine, may be acquired by appro- priation." (3d ed.) 333. What Constitutes a Watercourse. Close questions arise as to what is and what is not a watercourse. In Lux v. Hag- gin, 2 the court discusses at length the requisites for a watercourse, and concludes that a channel is necessary to the constitution of a watercourse ; 3 also a tendency of water to flow in it more or less regularly. 4 The second requisite is not fulfilled by a chance flow in a channel usually dry all year round, 5 though, on the other hand, the channel need not be full all year round, nor flow continuously. 6 It is a question of fact whether there is a tendency to regular flow, and no presumption of continuance can be indulged from proof of a single flow. 7 "It is not essential to a watercourse that the banks shall be un- changeable, or that there shall be everywhere a visible change in the angle of ascent marking the line between bed and banks. The law cannot fix the limits of variation of these and other particulars. As was said, in effect, by Curtis, J., in Howard v. Ingersoll, 8 the bed and banks or the channel is in all cases a natural object, to be sought after, not merely by the application of any abstract rules, but, 'like other natural objects, to be sought for and found by the 1 Sec. 1410. The 1911 amendment Rep. 673; Wagner v. Long Island R. does not affect this. See infra, sec. Co., 5 Thomp. & C. 163, 2 Hun, 633; 1432. Huffner v. Sawday, 153 Cal. 86, 94 2 69 Cal. 255, at 413-419. 10 Pac. Pac - 424 5 Verdugo etc. Co. v. Ver- 674 dugo, 152 Cal. 655, 93 Pac. 1021. tr 01 n i 1 Q one case it is said: "It is true ofio oo C ' R fi a A Z V> ' the evidence ^ows, that toward the ^ 8y ' ^ * end of every dry season, and when 4 Accord, Barnes v. Sabron, 10 Nev. the waters fall in the stream, there 217, 4 Morr. Min. Rep. 673. are places in the channel of this 5 Lux v. Haggin, supra. South Fork above the reservoir which 6 Spangler v. San Francisco, 84 are dry, but a watercourse does not Cal. 12, 18 Am. St. Rep. 158, 23 lose its character as such because in Pac. 1091 ; Shively v. Hume, 10 Or. dry seasons, or under certain climatic 76; Simmons v. Winters, 21 Or. 35, conditions its channel may become dry 28 Am. St. Rep. 727, 27 Pac. 7; New in places." Sierra County v. Nevada York etc. Co. v. Speelman, 12 Ind. County, 155 Cal. 1, 99 Pac. 371. App. 372, 40 N. E. 541; Eulrich v. 7 Lux v. Haggin, supra; Morrison Richter, 37 Wis. 226; Barnes v. v. Officer, 48 Or. 569, 87 Pac. 896. Sabron, 10 Nev. 217, 4 Morr. Min. 8 13 How. 428, 14 L. Ed. 209. 333 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 353 distinctive appearances it presents.' "Whether, however, worn deep by the action of water, or following a natural depression with- out any marked erosion of soil or rock; whether distinguished by a difference of vegetation, or otherwise rendered perceptible a channel is necessary to the constitution of a watercourse." And elsewhere in the same case : " A watercourse has been said to consist of 'bed, banks and water.' The water need not flow continually, but it would seem the flow must be periodical such as may be ex- pected during a portion of each year." And again: "If the water did not flow with regular periodicity, or if, flowing periodi- cally, it had no defined channel (other than the whole swamp), the plaintiffs had no cause of action." 9 Beside these two requisites given in Lux v. Haggin, of a chan- nel and a flow, a third requisite is usually recognized, viz., a per- manent source of supply. To constitute a watercourse it is neces- sary that there be a permanent source of supply. 10 The source may be springs, 11 or it may be surface water ; 12 or a pond formed by surface water. 13 There are, hence, three essentials requisite to constitute a water- course, viz. : A channel, a flow, and a source of supply. Two other characteristics are usually found: (a) tributaries, surface or sub- terranean; (b) a subflow, seeping with the stream beneath the soaked soil, which subterranean parts of the stream are considered elsewhere. 14 Lux v. Haggin, 69 Cal. 255, 10 13 Neal v. Ohio River R. Co., 17 Pac. 674. W. Va. 316, 34 S. E. 914. 10 Barkley v. Wileox, 86 N. Y. 140, "The source of a stream is defined 40 Am. Rep. 519 ; Jeffers v. Jeffers, to be 'the spring or fountain-head ]07 N. Y. 650, 14 N. E. 316; Greg- from which its supply of water pro- ory v. Bush, 64 Mich. 37, 8 Am. St. ceeds; any collection of water within Rep. 797, 31 N. W. 90. See cases or upon the surface of the earth from collected in 10 Am. & Eng. Ann. Gas. which a stream originates.' (New 1047, note. Revised Ency. Die.) And as said by 11 Pyle v. Richards, 17 Neb. 180, the trial court in discussing the pres- 22 N. W. 370; Mitchell v. Bain, 142 ent objection of appellant on demur- Ind. 604, 42 N. E. 230; Wolf v. rer to the complaint: 'This definition Crothers (Pa.), 21 Pa. Co. Ct. R. 627. when applied to a torrential stream in 12 Arthur v. Grand Trunk R. R. the high Sierras makes the said lan- Co., 22 Ont. App. 89, 95; Beer v. guage or the meaning of it, very Stroud, 19 Ont. 10; McKinley v. doubtful. It is but common knowl- Union County Freeholders, 29 N. J. edge that such stream has many and Eq. 164; Kelly v. Dunning, 39 N. J. varied sources usually covering a large Eq. 482; Eulrich v. Richter, 41 Wis. extent of watershed, and varying in 320; Barnes v. Sabron, 10 Nev. 217, length as it extends into said water- 4 Morr. Min. Rep. 673; 2 Farnham shed.'" County of Sierra v. County on Waters, sec. 457; Gould on Waters, of Nevada, 155 Cal. 1, 99 Pac. 371. 3d ed., sec. 263. 14 Infra, sec. 1077 et seq. Water Rights 23 354 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 334 (3d ed.) 334. Same Definition. As summing up the foregoing de- tailed discussion, the following definition is quoted from Sanguin- etti v. Pock : 15 "A watercourse is defined to be 'a running stream of water; a natural stream, including rivers, creeks, runs, and rivulets. ' 10 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 discharges itself into some other stream or body of water. It must be some- thing more than a mere surface drainage over the entire face of the tract of land, occasioned by unusual freshets or other extraor- dinary causes. It does not include the water flowing in the hollows or ravines in land, which is mere surface water from rain or melting snow (i. e., snow lying and melting on the land), and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not, in legal contemplation, watercourses. ' 17 The evidence does not bring the depression or swale in question within this definition. This so-called watercourse is nothing more than a local drainway to a limited amount of land which has neither a definite beginning nor ending, and is like hundreds of similar swales found in land whose surface may be called generally level. ' ' 18 A statutory definition is provided in North Dakota, which, with some other definitions, is given in the note. 19 15 136 Cal. 466, at 471, 89 Am. St. Hutchinson v. Watson etc. D. Co. Rep. 169, 69 Pac. 98. (1909), 16 Idaho, 484, 133 Am. St. 16 Citing Black's Law Dictionary, Rep. 125, 101 Pac. 1059. title ''Watercourses." 19 "A watercourse entitled to the 17 Citing Los Angeles etc. Assn. v. protection of the law is constituted, Los Angeles, 103 Cal. 466, 37 Pae. if there is a sufficient natural and ac- 375, citing text-books and cases. customed flow of water to form and 18 See Pomeroy on Riparian Rights, maintain a distinct and defined chan- secs. 6, 62. nel. It is not essential that the sup- "A watercourse is a stream of water ply of water should be continuous or flowing in a definite channel, having from a perennial living source. It is a bed and sides or banks, and dis- enough if the flow arises periodically charging itself into some other stream from natural causes, and reaches a or body of water. The flow of water plainly defined channel of a perma- need not be constant, but must be nent character." N. D. Stats. 1907, more than mere surface drainage oc- p. 444. casioned by extraordinary causes; Following are some additional cases there must be substantial indications bearing upon what constitutes a of the existence of a stream, which is watercourse : Pyle v. Richards, 17 ordinarily a moving body of water." Neb. 180, 22 N. W. 370 ; Morrissey v. 335 Cli. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 355 (3d ed.) 335. Same Examples. The following are various forms of stating that a watercourse existed : Where a stream usually flows in a continuous current, the fact that the water thereof, on account of the level character of the land, spreads over a large area, with- out apparent banks, does not affect its character as a watercourse. 20 A watercourse with well-defined banks which is the natural outlet for the waters of lakes, and through which the waters will reach a common place, is a natural watercourse, though it is called a swag or a swamp or a creek, and whether its course is straight or crooked. 21 In one case, A owned lands adjoining a lake. The main outlet becoming choked up with sand, the waters overflowed the lands of B and C on the north of the lake, forming marshes and swales, and escaped into a creek flowing into a bay. They erected a dike to protect their land, which raised the water in the lake, and threw it back upon A's land. Held, that the waters on the lands of B and C could not be considered merely as surface water, but constituted a watercourse, and that they had no right to erect the dike. 22 The fact that a stream having a bed, banks and current has been deepened artificially for drainage purposes, or that it is at times dry, does not deprive it of the character of a watercourse. 23 A valley dry on the surface' every summer from June to November, the soil being sandy, and the river-bed varying greatly and changing often, may, nevertheless, constitute a water- Chicago etc. Co., 38 Neb. 406, 56 N. 88 Iowa, 47, 45 Am. St. Rep. 224, 55 W. 946; West v. Taylor, 16 Or. 165, N. W. 77. 13 Pac. 665 ; Geddis v. Parrish, 1 Colloquially, "watercourse" is some- Wash. 587, 21 Pac. 314; Rigney v. times loosely used to indicate the Tacoma etc. Co., 9 Wash. 576, 38 Pac. channel alone. Doe dem. Earl of 147, 26 L. R. A. 425; Town v. Mis- Egmont v. Williams, 11 Q. B. 688. souri Pac. Ry., 50 Neb. 768, 70 N. W. In the California Political Code, 402; Mace v. Mace, 40 Or. 586, 67 section 3908, the "mouth of a creek" Pac. 660, 68 Pac. 737; Case v. Hoff- is defined as follows: "The mouth of man, 84 Wis. 438, 36 Am. St. Rep. a creek, river or slough which empties 937, 54 N. W. 793, 20 L. R. A. 40; into another creek, river or slough, Brown v. Schneider, 81 Kan. 486, 135 is the point where the middle of the Am. St. Rep. 396, 106 Pac. 41 ; Hill channels intersect." v. Cincinnati etc. Co., 109 Ind. 511, 20 Miller & Lux v. Madera Canal & 10 N. E. 410; Larimore v. Miller, 78 Irr. Co., 155 Cal. 59, 99 Pac. 502, 22 Kan: 459, 96 Pac. 852; West v. L. R. A., N. S., 391. Taylor, 16 Or. 165, 13 Pac. 665; 21 Hastie v. Jenkins, 53 Wash. 21, Barnes v. Sabron, 10 Nev. 217, 4 Morr. 101 Pac. 495. Min. Rep. 673; Shively v. Haine, 10 22., West v. Taylor, 16 Or. 165, 13 Of. 76 ; Quinn v. Chicago etc. Ry. Co., Pac. 665. 23 S. D. 126, 120 N. W. 884; City 23 Rigney v. Tacoma Light & Water of Paola v. Garman C1909), 80 Kan. Co., 9 Wash. 576. 38 Pac 147 26 L 702, 103 Pac. 83; Hinkle v. Avery, R. A. 425. 356 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 335 course. 24 Where water, owing to the hilly or mountainous charac- ter of the country, accumulates in large quantities from rains and melting snow, and at regular seasons descends through gullies or ravines upon the lands below, and in its flow cuts out through the soil a well-defined channel which bears the unmistakable impress of the frequent action of running water, and through which it has flowed from time immemorial during such seasons, such stream is to be considered a watercourse. 25 The following are statements of where a watercourse does not exist: When the water is stagnant or spread out with no well- defined current, the current becoming imperceptible or lost, it be- comes a lake or pond or swamp. 1 A bog of one-half acre fed by percolations, but no channel entering or leaving, is not a water- course, and cannot be appropriated as such. 2 To constitute a watercourse there must be a stream, usually flowing in a particular direction, in a definite channel, having a bed, sides, or banks, though it will not flow continually, and must usually discharge itself into some other stream or body of water; there must be more than surface drainage ; and it does not include w r ater flowing in hollows or ravines, which is mere surface water, from rain or melting snow. 3 A marsh or swamp is not a watercourse. 4 Where one builds a ditch to use surface water, a landowner above may nevertheless obstruct it to keep water off his land. 5 Depressions in the prairies due to the rolling character of the ground, where the surface water drains, are not watercourses, 8 and rights of permanent flow and use cannot be predicated thereon. Where the water spreads, having no well-defined current, as into a marsh, it cannot be deemed a watercourse, and accordingly does 24 Huffner v. Sawday (1908), 153 4 Hayward v. Mason (1909), 54 Cal. 86, 94 Pac. 424, citing Los Wash. 653, 104 Pac. 141. Angeles Assn. v. Los Angeles, 103 5 City of Paola v. Garman (1909), Cal. 461, 37 Pae. 375. 80 Kan. 702, 103 Pac. 83. 25 Simmons v. Winters, 21 Or. 35, 6 p ibbs v - Williams, 25 Kan. 214, 28 Am. St. Rep. 727, 27 Pac. 7. See 37 Am. Rep. 349; Rait v. Furrow, Kroeger v. Twin Buttes Co. (Ariz.), 74 Kan 101 85 Pac. 934, 6 1 L , E :. A ., 114 Pac. 553, concerning wet-weather ^^A 7 ''***'*? f Madison :arroyos in Arizona. ( 1886 )> .- 24 l> 39 4' *< l 3 ^ Rice v. City of Evansville, 108 Ind. 1 Hough v. Porter, 51 Or. 318, 98 7, 53 Am. Rep. 53, 9 N. E. 139; Pac. 1083, at 1101. Citing inter alia, Eulrich v. Richter, 37 Wis. 226. ' But this book, 2d ed., p. 161. see Quinn v. Chicago etc. Co. (1909), 2 Dickey v. Maddux, 48 Wash. 411, 23 S. D. 126, 120 N. W. 884, disap- 93 Pac. 1091. proving Gibbs v. Williams, supra, and 3 Robinson v. Shanks, 118 Ind. 125, see Parizek v. Hinek (Iowa), 123 N. 20 N. E. 713. W. 180, as to a swale. 336 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 357 not come within any rule permitting a claim thereto as a riparian owner. 7 (3d ed.) 336. Springs. Water from a spring is water in a water- course, however small, if it runs off in a definite channel, with a tendency to regularity, 8 and may be appropriated as water in a watercourse, 9 even though the appropriator builds a ditch to the very mouth of the spring. 10 The water in the spring itself, how- ever, 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. 11 Water flowing from a well on public land may be appropriated as water in a surface watercourse, though the appropriator takes the stream at its starting point i. e., ditches to the mouth of the well. 12 This case is very like Ely v. Ferguson (supra), cited therein, and the court expressly declares that the decision does not refer to the percolations supplying the well underground; but only to the water on the surface. Diverting ground water by digging a few feet below the surface of a spring at the spring-head is the same as taking it at the surface, and un- lawful against lower claimants to whom the spring water came on the surface. 13 In one case it was decided that a creek having its source in springs, which ran a short distance through a natural surface channel, and then discharged into a large slough, which had no natural surface outlet, was a watercourse, and that the waters running in the surface channel could not be diverted to the injury of the lower owners. 13 * When a spring furnishes a stream of water that rises to the surface, the right of appropriation at- taches, 14 but where the admitted quantity is so insignificant that a surface stream is impossible, when spread over the width of ground involved, the use of the water belongs to the person upon whose land it first arises. 15 7 Hough v. Porter, 51 Or. 318, 95 12 De Wolfskill v. Smith, 5 Cal. Pac. 732, 98 Pac. 1083. App. 175, 89 Pac. 1001. 8 Brosnan v. Harris, 39 Or. 148, 13 Dudden v. (Glutton Union) 87 Am. St. Rep. 649, 65 Pac. 867, Guardians etc. (1857), 1 Hurl. & N. 54 L. R. A. 628; Pomeroy on Ri- 527 46 Ca,. 656; .. OWghtr. Bwn, 16 Nev. 317, Shenandoah etc. Co. v. Morgan, 106 tu Am ' *** **"' Cal. 409, 39 Pac. 802. 14 Brosnan v. Harris, 39 Or. 148. 10 Ely v. Ferguson, 91 Cal. 187, 87 Am - St - Re P- 649 > 65 Pac. 867, 27 Pac. 587. 54 L. R, A. 628. 11 Cohen v. La Canada Water Co., 15 Morrison v. Officer, 48 Or. 569 142 Cal. 437, 76 Pac. 47. 87 Pac. 896. 358 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 337 In one case it is held that a spring flowing water immediately absorbed before going any distance from the spring may still be regarded as a surface watercourse so as to be appropriated as such on the surface at the mouth of the spring. The water from the spring never flowed enough to form a surface stream or carry water any distance from the spring, what little there was being immediately taken up by the soil adjacent to the spring, and it was held 16 that the surface flow may be appropriated as against a later surface diversion by another, and that the question is not one of rights in underground water, saying: ". . . . whether the waters are from a well-defined subterranean stream or purely seepage and percolating waters, it nevertheless stands as an admit- ted fact in the case that they flow to and collect at a definite and certain place and there form what is called by all parties a spring. The fact that the water of this spring in its natural state, before any appropriation or diversion, was lost in the adjacent soil, and did not flow off the land in a definite stream, can make no differ- ence and in no way abridges the right of the first comer to locate and appropriate and develop the same for a useful or beneficial purpose. ' ' 17 (3d ed.) 337. Surface Tributaries. As a matter of point of view, it is proper to look upon the stream as not merely consisting of the channel and flow at the point where the observer is standing, but as a composite body in which the upper branches and tributaries are an integral part. The right to these tributaries is then identi- cal with the right to the stream, on the principle that the whole includes the sum of its parts. The appropriator of a stream has a right to its tributaries and to all its sources, and it merely becomes a question of proof whether the hostile diversion is of water that is or is not tributary on the evidence. (Through the advance of scientific knowledge this proof enables the appropriator to follow and trace the stream even into tributary percolations underground, a matter to be separately considered.) 18 The cases enforce, in favor of a stream claimant, rights to tributaries to his stream on 16 Much as in Ely v. Ferguson, and The source may be springs, sur- Wolfskill v. Smith, supra. face water or ponds formed by sur- ,_ T/ -.. -., , ICTJU fa.ce water or underground water, or 405 98 e pa U c m 4 e i5 ' ' "* P ermanent S " rce f "PP 1 * 05, 9, Fac. 415. < Rait y Furrow> 74 Kan 1Q1> g5 p ac> is Infra, sec. 1082. 934, 6 L. E. A., N. S., 157. 5 338 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 359 this view of it. 19 Likewise, as to a lake that is tributary to or the source of a stream. 20 Likewise as to springs flowing into tribu- taries that flow into the appropriated stream. 21 And finally, like- wise, on the best authorities, as to the underground percolations tributary to the springs. 22 These are all parts of the stream, and rights in them, on proof of the facts, are governed by the law of the stream. The time of appropriation between the stream claim- ant and the tributary claimant will govern their rights as appro- priators. A judgment and decree adjudicating rights and priorities to the use of the waters of a stream carries with it and adjudicates and decrees the rights and priorities to the waters of the tributaries to such stream above the respective places and points of diversion. 23 "The presumption is that the water of a tributary of a stream, less the evaporation, if not interfered with, will naturally reach the main stream either by surface or subterranean flow. " 24 A sub- sequent appropriator of tributaries must produce clear and con- vincing evidence that the prior appropriator would not be injured or affected by the diversion, and has the burden of proof. 25 Whether an upper creek is tributary to a lower one is a question of fact. 1 (3d ed.) 338. Sloughs. A slough without original water of its own is not a watercourse. 2 Where water flowed in a slough having 19 Priest v. Union etc. Co., 6 Cal. ards etc. Co., 27 Utah, 205, 101 Am. 170; Stickler v. Colorado Springs, 16 St. Eep. 962, 75 Pac. 376; Ci'ty of Colo. 61, 25 Am. St. Rep. 245, 26 New Whateom v. Fairhaven, 24 Wash. Pac. 313; Malad etc. Co. v. Camp- 493, 64 Pac. 735, 54 L. R. A. 190; bell, 2 Idaho (378), 411, 18 Pac. Cole v. Richards Irr. Co., 27 Utah, 52; Tonkin v. Winzell, 27 Nev. 88, 205, 101 Am. St. Rep. 962, 75 Pac. 73 Pac. 593 ; Low v. Schaffer, 24. Or. 376. 239, 33 Pac. 678; Low v. Rizor, 25 21 Beaverhead etc. Co. v. Dillon etc. Or. 551, 37 Pac. 82; Boyce v. Cup- Co., 34 Mont. 135, 85 Pac. 880. per, 37 Or. 256, 61 Pac. 642; Salina 22 Infra, sec. 1076 et seq. etc. Co. v. Salina etc. Co., 7 Utah, 23 Josslyn v. Daly, 15 Idaho, 137, 456, 27 Pac. 578, among others. Cf. 96 Pac. 568. Verdugo W. Co. v. Verdugo (1908), 24 Petterson v. Payne, 43 Colo. 184, 152 Cal. 655, 93 Pac. 1021. See 95 Pac. 301. Miller v. Wheeler (1909), 54 Wash. 25 Josslyn v. Daly, 15 Idaho, 137, 429, 103 Pac. 641, 23 L. R. A., N. S., 96 Pac. 137. IOCS; Petterson v. Payne, 43 Colo. 1 Wilson v. Collin (1909), 45 Colo. 184, 95 Pac. 301. 412, 102 Pac. 20. 20 Duckworth v. Watsonville etc. 2 Lamb v. Reclamation Dist., 73 Co., 150 Cal. 520, 89 Pac. 338; Cal. 125, 2 Am. St. Rep. 775, 14 Pac. Buckers etc. Co. v. Platte etc. Co., 28 625; Hagge T. Kansas etc. Co., 104 Colo. 187, 63 Pac. 305; Cole v. Rich- Fed. 391. 360 (3ded.) Pt. III. THE LAW OF PEIOK APPROPRIATION. 339 well-defined banks leading from a river to a creek, such slough constituted a watercourse, though at some points the channel spread out and the water was quite shallow. 3 Where water flows from a river into a slough, or from the slough into the river, as one may be higher than the other at a particular season, it is to be regarded as a part of the river. 4 A slough which carries no water except the overflow waters of a river in times of flood, which, as compared with the volume of water in the river, is insignificant, and which has no original water of its own, but is simply a conduit by which occasionally some of the flood water escapes into the lower lands, is not a watercourse. 5 B. NAVIGABLE AND INTERSTATE STREAMS. (3d ed.) 339. Navigable Streams. The water of navigable streams may be appropriated as well as the water of those not navigable. Thus, for example, a dam in the San Joaquin Kiver at a point where it is navigable, and an appropriation of water there, were upheld against all but the State or someone injured in navigating. 6 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 exercised without being inconsistent with the public easement of navigation. 7 The court says in United States v. Rio Grande Dam and Reservoir Company: 8 ''It does not follow that the courts would be justified in sustaining any proceed- ing by the attorney general to restrain any appropriation of the upper waters of a navigable stream. The question always is one 3 Cederburg v. Dutra, 3 Cal. App. Rio Grande etc. Co., 174 U. S. 690, '; 572, 86 Pac. 838. See Lux v. Hag- 19 Sup. Ct. Rep. 770, 43 L. Ed. ; gin, 69 Cal. 255, 10 Pac. 674; Green 1136. Affirmed in Kansas v. Colo- I v. Carotta, 72 Cal. 267, 13 Pac. 685. rado, 206 U. S. 46, 27 Sup. Ct. Rep. 4 Turner v. James Canal Co., 155 655, 51 L. Ed. 956. Cal. 82, 132 Am. St. Rep. 59, 99 Pac. In Hutchmson v. Watson D. Co. 520, 22 L. R. A., N. S., 401, 17 Ann. (1909), 16 Idaho, 484, 133 Am. St. Cas ; 823 . Rep. 125, 101 Pac. 1059, at 1063, it x- TV i ^T seems to be said by way of dictum, 108 73 m C a r-125 e 2 Tm 10 St B?p ?76 that an Appropriation o/a navigable 108, 73 Cal. 125, 2 Am. St. Kep. 770, stream may be made> thoug h it 06- ac. bzo. structs navigation, "when acting under 6 Miller v. Enterprise Co., 142 Cal. an( j b y authority of law." 208, 100 Am. St. Rep. 115, 75 Pae. s 174 U. S. 690, 709, 19 Sup. Ct. 770. Rp. 770, 43 L. Ed. 1136; Rio Grande 7 Heilbron v. Fowler etc. Canal Co., etc. Co. v. United States, 215 U. S. 75 Cal. 426, at 433, 7 Am. St. Rep. 266, 30 Sup. Ct.'Bep. 97, 54 L. Ed. 183, 17 Pac. 535; United States v. 190. 340 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 361 of fact, whether such appropriation substantially interferes with the navigable capacity within the limits where navigation is the recognized fact." If the appropriation interferes with navigation, however, it is invalid. 9 A lawful mode of ingress and approach is, how r ever, necessary before the public can exercise the privileges appertaining to navi- gable waters. The public has no right to invade and cross private" lands to reach navigable waters that are wholly surrounded by the private land. If such a right of approach becomes a public neces-^ sity, the proper course is by condemnation under the eminent domain procedure. 10 It may be remarked that the title to the bed of navigable streams (in most jurisdictions) is in the State. 11 Navigable streams are further considered in a later chapter. 12 (3d ed.) 340. Interstate Streams. 13 Recently, several cases have been decided concerning the rights of appropriators on a stream which crosses a State boundary. Most of the cases say that no inno- vations in the law of appropriation are necessary on that account. "Water is essential to human life in the same degree as light and air, and no bounds can be set to its use for supplying the natural Ibid. Bean (Mont.), 123 Fed. 618; Same v. 10 Bolsa etc. Club .v. Burdick, 151 Same > 146 Fed - 428 > affirmed in Bean Cal. 254, 90 Pac. 532, 12 L. R. A.. N. v - Morris, 159 Fed. 651, 86 C. C. A. g 275 519 5 The Salton Sea Cases, 172 Fed. '' , ' 820, 97 C. C. A. 242; Miller v. Rickey, .1 Infra, see. 898. 127 Fed. 573; Rickey v. Miller, 152 12 Infra, sec. 898 et seq. Fed. 11, 81 C. C. A. 207; Lamson 13 See, also, infra, sec. 727. v. Vailes, 27 Colo. 201, 61 Pac. 231; See, generally, the following cases: Taylor v. Hulett, 15 Idaho, 265, 97 Kansas v. Colorado, 206 U. S. 46, Pac. 37, 19 L. R. A., N. S., 535; 27 Sup. Ct. Rep. 655, 51 L. Ed. 956; Cline v. Stock, 71 Neb. 70, 98 N. W. Kansas v. Colorado, 185 U. S. 125, 22 454, 102 N, W. 265; Bigelow v. Sup. Ct. Rep. 552, 46 L. Ed. 838; Draper, 6 N. D. 152, 69 N. W. 570; Hudson W. Co. v. McCarter, 209 U. Conant v. Deep Creek Co., 23 Utah, S. 349, 28 Sup. Ct. Rep. 529, 52 L. 627, 90 Am. St. Rep. 627, 66 Pac. 188; Ed. 828, 14 Ann. Cas. 560; Missouri Willey v. Decker, 11 Wyo. 496, 100 v. Illinois etc. Dist., 180 U. S. 208, Am. St. Rep. 939, 73 Pac. 210; Turley 21 Sup. Ct. Rep. 331, 45 L. Ed. 497; v. Furman (N. M.), 114 Pac. 278; Rickey etc. Co. v. Miller, 218 U. S. Slack v. Waleott, 3 Mason, 508, Fed. 258, 31 Sup. Ct. Rep. 11, 54 L. Ed. Caa. No. 12,932 (Story, J.) ; Mann- 1032; Saunders v. Bluefield M. W. Co., ville Co. v. -Worcester, 138 Mass. 91, 58 Fed. 133; Howell v. Johnson, 89 52 Am. Rep. 261 (Holmes, J.) ; Ruck- Fed. 556; Perkins County v. Graff, 114 man v. Green, 9 Hun (N. Y.), 225; Fed. 441, 52 C. C. A. 243; Hoge v. and the articles in 8 Harvard Law Eaton, 135 Fed. 411; Anderson v. Review, 138; 2 Columbia Law Review, Bassman, 140 Fed. 22; Morris v. 364. 362 (3d ed.) Pt. III. THE LAW OF PEIOE APPEOPRIATION. 341 wants of men other than the mighty barriers which the Creator has made on the face of the earth," says Judge Hallett. 14 In Kansas v. Colorado, 15 in the supreme court of the United States, Mr. Justice Brewer said the decisions of the supreme court of the United States are ''practically building up what may not improperly be called interstate common law." (3d ed.) 341. Same Controversies Between States Kansas v. Colorado. 16 The rule laid down in Kansas v. Colorado is that, between States, an equitable apportionment of benefits should be maintained. Kansas sued Colorado in the supreme court of the United States to enjoin appropriations in Colorado on the Arkansas River, claiming that the loss of the water would irreparably injure Kansas as a State, and as a riparian* proprietor, and private riparian proprietors in Kansas (which upholds riparian rights under the California doctrine while Colorado does not). The deci- sion was considered from the point of injury to Kansas as a State, aside from rights of itself or individuals as riparian proprietors, its prosperity as distinguished from its property rights or those of its citizens. It was held that Colorado would be irreparably injured by an injunction, without corresponding benefit to Kansas. In fact, the ultimate prosperity of Kansas may in fact be increased by the Colorado diversions. There has been no widespread serious injury to Kansas from past diversions,, though there was some detriment. Kansas herself recognizes the right of an upper riparian owner to make a reasonable use of a stream against lower proprietors, and it is not shown that the Colorado use is unreasonable, regarding the two States as both great riparian proprietors. "At the same time it is obvious that if the depletion of the waters of the river by Colorado continues to increase, there will come a time when Kansas may justly say that there is no longer an equitable division of benefits, and may rightfully call for relief against the action of Colorado, its corporations and citizens, .in appropriating the waters of the Arkansas for irrigation purposes. ' ' 17 n Hoge v. Eaton (C. C. Colo.), 135 16 206 LT. S. 46, 27 Sup. Ct. Rep. Fed. 411. 655, 51 L. Ed. 956. Opinion by Mr. 65 5 5 5 2 l 6 L U Ed S -95 4 6 6 ' ** ^ ^ **' i this case, see supra, 655, 51 L. Ed. 956. gec 182> 342 Ch. 16. WHAT CAN BE APPROPRIATED. (3ded.) 363 The threatened 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, pre- sents a cause of action justiciable under the constitution; that is, the supreme court of the United States will have original juris- diction if one of the States brings suit against the other. 18 (3d ed.) 342. Between Riparian Owners in One State and Appro- priators in Another State. The general attitude of the Federal courts is to see that there is an equitable apportionment of benefits between the citizens of each State collectively just as between the States themselves; and when the controversy is between riparian owners in one State against appropriators in another, to appor- tion the water (upon some basis found equitable upon the facts) between the riparian owners as a body and the appropriators as a body, leaving the members of each body among themselves to be governed by their local law. This formed the basis of the decision in Anderson v. Bassman. 19 In another case 20 below referred to, in Wyoming, the matter was mentioned but no decision was given, no riparian rights being actually involved. In Anderson v. Bassman, a conflict arose among several hundred claimants upon a river flowing from California into Nevada, the claimants in the former being riparian owners under the Califor- nia law ; in the latter, appropriators under the Nevada law, which does not recognize riparian rights. Judge Morrow, in the United States circuit court, simply apportioned the water, giving each side the use of the stream for a specific number of days, the rights of the individuals on each side among themselves to be governed by their local law. 21 In another case a stream flowed from Nebraska to Kansas and it was said: ''It would seem that the fact of plaintiff's residence beyond the border of this State [in Kansas where his mill was], and that his mill is located there, ought not to deprive him of any rights which the laws of our State give to a lower riparian owner. Any attempt of our legislature to discriminate against him as corn- is Missouri v. Elinois etc. District, 19 140 Fed. 22. 180 U. S. 208, 21 Sup. Ct. Rep. 331, 20 Willey v. Decker, 11 Wyo. 496, 45 L. Ed. 497. See this case com- 100 Am. St. Rep. 939, 73 Pac. 211. rnented on in Kansas v. Colorado, 185 21 See supra, sec. 310 et seq., rea- U. S. 125, 22 Sup. Ct. Rep. 552, 46 sonable priority. L. Ed. 838. 364 (3d ed.) Pt. III. THE LAW OF PEIOB APPEOPEIATIOK 343 pared with resident mill owners would be promptly declared un- constitutional by the Federal courts. Any such determination by the courts would seem to be equally obnoxious to the Federal con- stitution. It seems clear that the plaintiff should be allowed the same standing as one of our own citizens with a mill on this side of the State line," 22 both States being followers of the California doctrine recognizing the riparian rights of private land and appro- priation for public land. In the late case of Rickey etc. Co. v. Miller, 23 in the supreme court of the United States, the decision upon a question of pro- cedure below referred to was based upon the principle of Kansas v. Colorado, that riparian owners in California or appropriators in Nevada, upon the Walker River crossing the boundary, must deduce any right they may have from the law of their respective States; and the enforcement of either right beyond the boundary of its State must depend upon the concurrence of the other State. Unless the upper State (California) will voluntarily impose condi- tions upon its citizens in favor of users in the lower State (Nevada), the latter have no right in the matter other than to complain that the lower State as such (and not merely the plain- tiff) is not receiving an equitable share of the benefit of the stream. 24 This seems to make rights upon interstate streams a matter of interstate relation, reachable by creation of joint com- missions between the States interested, to establish rules for such streams. (3d ed.) 343. Between Appropriators in Different States. As in the preceding sections, the supreme court of the United States rules that rights upon interstate streams are a matter of interstate con- cern (similar to international concerns, regarding the States as each a sovereign). 26 Consequently it is for the States concerned to see that each receives, by joint arrangement, an equitable 22 Cline v. Stock, 71 Neb. 70, 98 25 It has been said that "The idea N. W. 456, 102 N. W. 265. that there can arise any international 23 218 U. S. 258, 31 Sup. Ct. Eep. -water-right question in the case of an 11. appropriation of waters of an un- 24 The private right is "not in his navigable stream cannot be main- own right, but by reason of and sub- tained." Howell v. Johnson, 89 Fed. ordinate to the rights of his State," 556. That seems to remain true; but the court says. See Turley v. Fur- there arise interstate questions under man (N. M.), 114 Pac. 278. the supreme court's decisions. 343 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 365 apportionment of benefit from the stream, opening the way for joint commissions between the States to govern interstate streams. 1 In no instance yet has such a joint commission been estab- lished ; and in cases simply between appropriators alone in two States, both recognizing the law of prior appropriation, the courts have so far decided upon the basis that priority governs. Irrespective of State lines, the courts have been following, between appropriators, the ordinary rules applicable to appro- priators under the law of prior appropriation. A chief feature of the law of appropriation generally has been that the water-right is independent of the place of use. 2 Should a State by statute prohibit domestic waters being diverted within it for use beyond its borders, an appropriation for that purpose could not be made, 3 and a declaration of State ownership has been said to have that effect, 4 but that is not the usual way of regarding such a declaration; and aside from an express prohibition, the general ruling has been that a diversion may be made in one State for use in any other State. Thus a case 5 involved the legality of the issuance of certain 1 Many think the United States should control ; but the decisions of the supreme court place the matter with the States. 2 Supra, sec. 281; infra, sec. 496. 3 Hudson County Water Co. v. Mc- Carter, 209 U. S. 349, 28 Sup. Ct. Rep. 529, 52 L. Ed. 828, 14 Ann. Cas. 560, affirming McCarter v. Hudson etc. Co., 70 N. J. Eq. 695, 118 Am. St. Rep. 754, 14 L. R. A., N. S., 197, 65 Atl. 489, 10 Ann. Cas. 116. In February, 1911, the California legislature passed a joint resolution concerning the water of Lake Tahoe, lying on the boundary of California and IVevada (referring to a proposi- tion to divert the waters to Nevada), that "The State of California claims to own the major portion of the waters of said lake and protests against the diversion of said waters, and will resist the diversion contem- plated, as an invasion of the rights of the people of this State." Assembly Joint Resolution No. 8. The project to divert the waters was abandoned. The same legislature enacted a statute forbidding generally the diversion of waters to points outside the State (Cal. Stats. 1911, c. 104, quoted infra, sec. 1432) ; and the Oregon legislature has just enacted that its State engineer may reject appropriations in Oregon for use in a State which would not allow diversions for use in Oregon. Or. Stats. 1911, e. 224, p. 404. But this Oregon act expressly allows ap- propriations for use outside of Oregon generally. Nevada replied to the California Resolution by itself resolv- ing that diversion of the Lake water to Nevada should be allowed "Not- withstanding the protest of the people of California, whose claim to those waters we do not concede." (Nev. Stats. 1911, p. 453.) Wyoming passed an act authorizing its attorney general to take steps to protect Wyoming's rights upon interstate streams. Wyo. Stats. 1911, c. 43, p. 57. 4 Bigelow v. Draper, discussed supra, sec. 172. See, also, Saundefs v. Bluefield W. W. Co., 58 Fed. 133, and see 8 Harvard Law Review, 138, "Power of a State to Divert an Inter- state Stream." See, also, 2 Columbia Law Review, 364. 5 Perkins County v. Graff, 114 Fed. 441, 52 C. C. A. 243 (in the United States circuit court of appeals for the eighth circuit on appeal from the United States circuit court for the district of Nebraska). 366 (3d ed.) Pt. III. THE LAW OF PKIOR APPROPRIATION. 343 bonds by Perkins county, Nebraska, to aid in the construction of an irrigating canal. One paragraph of the syllabus, as pre- pared by the court, reads as follows: "Drawing water through a canal from one State into another for the purpose of irrigat- ing lands in the latter State is not necessarily a violation of the constitution, laws, or policy of the former State, although that State reserves all the waters for itself and its citizens, so far as they are necessary for the beneficial uses to which the State and its citizens apply them." And in the opinion, "When the proposition of the irrigation company is carefully and rationally considered, it is not obnoxious to the constitution, the laws, or the public policy of the State of Colorado, and these bonds cannot be defeated because the intention of the company was to draw the waters to irrigate the lands of this county from without the State of Nebraska." The court perceived no reason why the appropriation of water might not be made for the irrigation of lands in one State by means of the diversion of water from a stream in another State naturally flowing from the latter State into the former. Likewise in another case 6 a declaration of State ownership was held immaterial. In this case Sand Creek flowed from Colorado into Wyoming. Plain- tiff diverted and used the water in Wyoming. Defendant diverted in Colorado and injunction was granted, and the fol- lowing was held to be the law: "The right to divert running waters for irrigating lands in an arid country is not controlled or affected by political divisions. It is the same in all States through which the stream so diverted may pass An appropriation of water in the State of Wyoming from a stream which rises in Colorado for irigating lands in Wyoming is valid as against a subsequent appropriation in Colorado, from the same stream for irrigating lands in Colorado In a suit by settlers in Wyoming on a stream which rises in Colorado to restrain the diversion of water from such stream in Colorado, complainants need not aver or prove that they have conformed to police regulations of the State of Wyoming regulating the distribution of water in that State." A careful examination of the question of conflict of laws as applied to water-rights was made in the valuable case of Willey v. Decker. 7 The facts were that the stream flowed from 6 Hoge v. Eaton (C. C. Colo.), 135 7 11 Yv T yo. 496, 100 Am. St. Rep. Fed. 411. 939, 73 Pac. 210. 343 Ch. 16. WHAT CAN BE APPEOPKIATED. (3d ed.) 367 Montana to Wyoming, and the appropriations involved were all made while both States were Territories, when there was no divided territorial sovereignty, and before the Wyoming statute 8 covering the subject of irrigation ; whence the court found it unnecessary to consider what would be the effect of appropriations made under the present laws. Some of the plaintiffs were both diverting and using the water in Wyom- ing, others diverting in Wyoming for use in Montana. Some of the defendants (Oberreich) diverted in Wyoming for use in Wyoming, others diverted in Wyoming for use in Mon- tana, and still others diverted in Montana for use in Wyom- ing. The court takes pains to note that no riparian rights were asserted by the Montana claimants, and that, though they might have made such claim, it was unnecessary to consider such rights because not asserted. The court also notes that it is unnecessary to decide what would be the law of interstate use outside of a State on a stream entirely within it and not an interstate stream. The Wyoming court decided in Willey v. Decker that Wyoming and Montana appropriators may join in a Wyoming diversion to irrigate lands lying in both States; also a Montana diversion for use in Wyoming will be enjoined in Wyoming where it injures other Wyoming users, and like- wise a Montana or Wyoming diversion for use in Wyoming will be enjoined in Wyoming where it injures others who divert in Wyoming though their use is on Montana lands. The court states the rule generally as follows: "The separation of the lands capable of irrigation from such streams by State lines is of no consequence, if we are to consider merely the general principles of the doctrine and the reasons that called it into existence. The same necessity applies to the lands on either side of the line, and the water naturally flows in the channel of the stream in disregard of such line above as well as below it We find nothing, therefore, in the fundamental prin- ciple of the doctrine of prior appropriation that he who is first in time is first in right, nor in the reasons that led to the establishment of the doctrine, which is opposed to the acquire- ment of a water-right for the irrigation of lands in one State by the diversion of the water at a point in another State from a stream flowing in both States." A declaration of State 8 Stats. 1886, p. 294, e. 61. 368 (3d ed.) Pt. III. THE LAW OF PEIOB APPROPRIATION. 344 ownership in Wyoming was here also held immaterial, as it likewise was in still another case. 9 "The relative rights, therefore, of appropriators of the water of an interstate stream are the same, whether the appropria- tions are all in the same State, or some in one State and the> balance in another State." 10 The National Irrigation Act u contains a proviso that "nothing herein shall in any way affect any right of any State or of the Federal government or of any landowner, appropriator, or user of water in, to or from any interstate stream or the waters thereof." The general principle of substantive law deducible from the authorities is that priority governs between appropriators irre- spective of State lines, the validity of each appropriation being governed, in testing its priority, by the law of the State in which the diversion is made, so long as there remains an equitable enjoy- ment of benefits by both States. 12 (3d ed.) 344. Difficulties of Procedure. The procedure by which the foregoing general rules are to be enforced gives rise to many difficult questions. Perhaps it may be a fair deduction that any court will grant relief in personam, by injunction or personal command, against all parties personally served with process within its jurisdiction, and may, as incidental to the determination of the propriety of granting personal relief, inquire into matters of title to water-rights whose situs is in another jurisdiction; but that no court will grant relief in rem, nor relief actually determining title to water-rights whose situs is outside the jurisdiction, such as a decree quieting title. Belief in personam, by injunction, has been granted in Montana enjoining a Montana diversion at suit of an appropriator below stream in another State Wyoming. 13 A decree apportioning 9 Morris v. Bean, 146 Fed. 425; for the lower State. Turley v. Fur- Bean v. Morris, 159 Fed. 651, 86 C. man (N. M.), 114 Pac. 278. C A. 519. n Infra, sec. 1428. 10 Taylor v. Hulett, 15 Idaho, 265, " f, ee Ust f cases ^> 86C ' 340 > 9 4 Pa TV 39 - ^ 19 L V R ' N " S " Howell v. Johnson (Mont.), 89 53o It IB, however, for the upper Fed ^ M ig y ^ (Mo ' nt>) State where the point of diversion Hg Fed ' 425 affirmed in v Bean lies, .to grant permit for its use; not Morri 159 Fe ' d> 651 g6 a c A 519 344: Ch. 16. WHAT CAN BE APPEOPRIATED. (3d ed.) 369 water between California and Nevada claimants has been ren- dered in the United States circuit court for the northern district of California upon a stream where the acts complained of were done in California. 14 In these cases the acts enjoined had been done within the jurisdiction of the court, and to bring cases within that class, it is held that where a ditch runs from one State into another, a diversion in the upper State constitutes, by keeping the ditch dry throughout its course, an injury com- mitted in the lower State also, constituting a wrongful act done in the lower State which the lower court may enjoin as an act done within its own jurisdiction. 15 It seems, however, that it is not necessary that the act to be enjoined be actually one committed within the court's jurisdiction; if it has per- sonal jurisdiction over the parties, it may enjoin even acts committed in another jurisdiction (though punishment for dis- obedience can be made only by retaining personal custody over the party or his property by sequestration, or by comity of the neighboring court). Thus, in the Salton Sea Cases, arising" out of the break of the Imperial Canal in Southern California, the Colorado River had been dammed in Mexico and its waters car- ried by the canal into California for irrigation. Because of damage from the flooding of California lands owing to a break of the canal, an injunction was awarded in California against the canal owners, restraining them from allowing the water so to flow, though this involved the doing of some affirmative acts in Mexico. 16 A court of equity may issue its commands upon the person of all parties over whom it has obtained actual per- sonal jurisdiction, whether this requires doing or refraining from acts within or outside its territorial jurisdiction, though enforcement in the latter case is more difficult. But the establishment of the validity of rights, or decrees in rem, as distinguished from personal relief, or decrees in personam, can be made only in the State where the water-right has its situs. The situs of a riparian right is where the riparian land 14 Anderson v. Bassman, 140 Fed. York for injury to New York lands 22. caused by the passage over them of 15 Willey v. Decker, 11 Wyo. 496, noxious vapors created in New Jersey. 100 Am. St. Eep. 939, 73 Pac. 210. i The Salton Sea Cases. 172 Fed. Cf. Ruckman v. Green, 9 Hun, 225, 820, 97 O. C. A. 242. holding that an action lies in New Water Bights 24 370 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 344 lies. 17 The situs of a right by appropriation would seem to be where the point of diversion lies, that being where the appro- priator has a right to receive the usufruct of the natural resource. 17 * So it has been held that courts of one State cannot quiet title in favor of water-right diversions made in another State. Though an equitable action to quiet title is only one in personam, yet it partakes of the nature of an establishment of right, and is usually for this purpose treated as equivalent to a decree in rem, to be rendered only by the court within whose jurisdiction the point of diversion lies. In Conant v. Deep Creek Co., 18 all parties both diverted and used the water outside the territorial jurisdiction of Idaho, where the decree under consideration was rendered. The Utah court acknowledged the right of the Idaho court, on obtain- ing personal jurisdiction, to act by injunction, but denied the efficacy of the decree in question quieting title, saying: "The Idaho courts, therefore, have ample and complete jurisdiction to protect the rights of respondents to have the water which they have appropriated, and which they divert in Utah, flow through the channel of the stream, and to limit and determine the rights of the Idaho proprietors with reference thereto." The substantial effect of the decision was that the Idaho court was not vested with jurisdiction to determine as between them- selves the right of the several appropriators who diverted water from the stream in Utah and used the same for irrigating lands in that State, and to quiet their titles thereto. In this connec- tion, affirming the same point, the Wyoming court says in Willey v. Decker: "If, therefore, a decree adjudicating the various priorities of the parties would operate as a decree quieting the title to the lands of plaintiffs Willey and Ellison in another State, it is quite obvious that it would be beyond the jurisdic- tion of the court. But, for the reasons stated, we shall decline 17 Under the California constitu- where lands are to be irrigated, al- tion, an action to quiet title must be though the stream flows into the lat- brought in the county where the ter; and the New Mexico Territorial riparian land lies. Miller v. Madera Engineer has no jurisdiction over etc. Co., 155 Gal. 59, 99 Pac. 502, 22 licensing such Colorado diversions. L. R. A., N. S., 391. That is for Colorado to do, it is I7a The sitiis of an appropriative held in Turley v. Furman (N. M.), water-right is in the State where the 114 Pac. 278. point of diversion lies (Colorado), and is 23 Utah, 627, 90 Am. St. Rep. not in the lower State (New Mexico), 721, 66 Pac. 188. { 344 Ch. 16. WHAT CAN BE APPEOPEIATED. (3d ed.) 371 at this time to go into the matter further." 19 It has been held that Colorado will not decree rights for use in New Mexico though diverted in Colorado, 20 stating that the question was of first impression in Colorado. While it is thus generally stated that courts of one jurisdic- tion will not undertake to establish the validity of water-rights whose situs (the point of diversion, in cases of appropriation) lies in another State, yet it has been held that the court may examine into such rights to inform itself, when called upon to give merely personal or local relief. Thus, where a court (in Nevada) has obtained personal jurisdiction over all parties, and an action is brought to quiet title to rights within its jurisdiction (Nevada) against claims outside its jurisdiction (above stream in California), and the outside claimants file a cross-complaint setting up their rights and asking to have them quieted, the court in Nevada has power to quiet title to the Nevada rights, but not to the California rights; yet, in order to advise its discretion regarding the validity of the Nevada claims it may examine into the California defense, though this involves passing upon the California claims. Such action can- not settle the California rights even if found valid, but can be the basis for granting or refusing a decree quieting title in favor of the Nevada claims. This is the holding in Rickey v. Miller. 21 It was further therein held that after the Nevada Federal court had entertained the case upon this ground, the Californians would be enjoined from beginning a suit in 'the California State court to get the decree quieting title which the court in Nevada declares itself unable to give him even if entitled thereto. The case was affirmed in the supreme court of the United States. 22 This case has been followed recently in Idaho. In Taylor v. Hulett 23 appellant's appropriation, diversion, and place of use 19 Willey v. Decker, 11 Wyo. 496, fornia, to ascertain and determine 100 Am. St. Rep. 939, 73 Pac. 210. whether such appropriation is prior 20 Lamson v. Vailes, 27 Colo. 201, and paramount to the complainant's 61 Pac. 231. appropriation, and, if not, then to set- 21 152 Fed. 14, 81 C. C. A. 207, tie and quiet complainant's title and saying: "Though the Nevada court is rights thereto." Approved in 218 not authorized or empowered to settle U. S. 258, 31 Sup. Ct. Rep. 11. the rights of the parties in the State 22 Rickey etc. Co. v. Miller, 218 of California, it may look, neverthe- U. S. 258, 31 Sup. Ct. Rep. 11. less, under the defensive answer, to 23 15 Idaho, 265, 97 Pac. 39, 19 the appropriation in the State of Cali- L. R. A., N. S., 535. 372 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 345 were all within Idaho. The respondents were up the stream, above appellant, and their diversion and place of use were all within the State of Wyoming. Held, the Idaho courts after per- sonal service of process on the respondents and their appearance in the court can determine the priorities between the parties, and adjudicate and decree appellant's rights, and enjoin respond- ents from interfering with such rights. The fact that respond- ent's claim lies in Wyoming does not oust the Idaho court of jurisdiction to quiet title to the Idaho rights against him, and to enjoin him, though such injunction can be enforced only by getting an ancillary decree from the courts of Wyoming, where he resides. The court said: "This action, to quiet appellant's title, should be maintained in the jurisdiction to which the res or subject matter is situated. 24 If, however, in ascertaining and determining appellant's rights, it becomes necessary to also inquire into and ascertain the rights and priorities of the respondents on the same stream as a defensive issue, that certainly can and will be done by a court of equity, although the res or subject matter involved in the issue and constituting the defense be situated beyond the State line and in another jurisdiction." 25 Unless some such rule were adopted, it would be impossible to decree rights or quiet title upon interstate streams, since the jurisdiction of Federal districts as well as State courts is usually separated by State lines, and there would be no single court hav- ing jurisdiction over both sets of claims territorially. (3d ed.) 345. Conclusions Regarding Interstate Streams. The mat- ter is now in a stage of development, and any conclusions must be tentative only. We suggest the following drawn from the foregoing authorities: (a) Between States, each is entitled to have for its prosperity an equitable apportionment of benefits from an interstate stream. Consequently, control of interstate streams is likely to gravitate toward the formation of joint commissions between the States to supervise their use and make regulations. 24 Citing Carpenter v. Strange, 141 Rep. 802, 15 Atl. 379, 1 L. R. A. 79. U. S. 87, 11 Sup. Ct. Rep. 960, 35 L. 25 Citing Willey v. Decker, 11 Wyo. Ed. 640; Nelson v. Porter, 50 N. J. 496, 100 Am. St. Rep. 939, 73 Pac. L. 324, 15 Atl. 375; Lindley v. 210; Rickey Land etc. Co. v. Miller O'Reilly, 50 N. J. L. 636, 7 Am. St. et al., 152 Fed. 11, 81 C. C. A. 207. 346 Ch. 16. WHAT CAN BE APPROPKIATED. (3d ed.) 373 (b) Between riparian owners in one State having rights at common law and appropriators in another State having rights under the law of appropriation, an equitable apportionment will be made between the two as classes, leaving each individual to share in the use apportioned to his class according to the law of the State wherein his right lies. (c) Between appropriators in different States, priority governs irrespective of State boundaries. The separation of a stream by State lines does not lessen the right to make an appropriation upon it in a State where appropriation is allowed, and an appro- priation thus made is, in the absence of express prohibitory statute, independent of the place to which the water is conducted, though it be outside the State ; provided there remains an equitable division of benefits between the two States. (d) Relief of a personal nature (as, for example, injunction) will be given by the court of any State which has obtained per- sonal jurisdiction over the parties to the controversy, whether this requires doing or refraining from doing acts within or with- out the court's territorial jurisdiction. (e) Relief of a real nature, or in rem, or as final adjudication of rights (and quieting title is so regarded) will not be granted by a court with regard to water-rights whose situs is outside its territorial jurisdiction, but the court will give such relief regarding all rights whose situs is within its jurisdiction. And further, as incidental to quieting title within its jurisdiction, or to granting purely personal relief, the court may inquire into water-rights whose situs is outside, and advise itself thereon; and even though it cannot settle the validity or invalidity thereof, may make its conclusion concerning them the basis of discretionary action regarding the relief to which the inquiry was incidental. C. STANDING AND DIFFUSED WATEE. (3d ed.) 346. Lakes and Ponds. 1 Whether waters of a lake or pond can be appropriated is seldom discussed. The cases almost invariably speak only of water flowing in watercourses. 2 The recent statutes in the arid States usually expressly include lakes, or else contain such general words as "all waters of the i See, also, infra,, sec. 728. See 2 Such also is the language of Cal. Idaho Stats. 1911, c. 230. Civ. Code, sec. 1410. 374 (3d ed.) Pt. III. THE LAW OF PEIOB APPEOPEIATION. 346 State, "or "all streams and water sources, ' ' which would cover the matter. In California, however, the statute 3 speaks only of streams and running water. However, riparian rights attached at common law to lakes and ponds. The law of appropriation is assumed likewise to apply to them, though the point is not specifically raised. 4 It is probable that lake water 'may be appro- priated in California as elsewhere, though not mentioned in Civil Code, section 1410, for the California court has said (in another connection) that that section is not exhaustive of the kinds of water that can be appropriated. 5 The California court has said since the above was written (in the first edition) : "We think the better doctrine in respect to the character of a stream from which the statute provides for appropriations is that it is not necessary that the stream should continue t'o flow to the sea, or to a junction with some other stream. It is sufficient if there is a flowing stream ; and the fact that it ends either in a swamp, in a sandy wash in which the water disappears, or in a lake in which it accumulated upon the surface of the ground, will not defeat the right to make the statutory appropriation therefrom, and we can see no reason why the appropriation, in such a case, may not be made from the lake in which the stream terminates, and which therefore consti- tutes a part of it, as well as from any other part of the water- course." 6 Upon a second appeal it was held (modifying the above somewhat) to be a question of fact whether the lake was part of the stream, and not one of law. 7 3 Civ. Code, 1410. rights, it was said (Turner v. James 4 Weaver v. Eureka etc. Co., 15 Cal. Canal Co. (1909), 155 ; Cal. 82, 132 271, and Osgood v. El Dorado etc. Am. St. Rep. 59, 99 Pac. 520, 22 L. Co., 56 Cal. 571; a dictum to the E. A., N. S., 401, 17 Ann. Cas. 823): same effect appears in Baxter v. Gil- "In Duckworth v. Watsonville etc. Co., bert, 125 Cal. 580, 58 Pac. 129, 374. supra, the question was suggested 5 Katz v. Walkinshaw, 141 Cal. 116, whether the right existed to make an 99 Am. St. Eep. 35, 70 Pac. 663, 74 appropriation of the waters of a lake, Pac. 766, 64 L. E. A. 236. The ap- under the code which refers only propriation of the waters of a lake to 'running water' (Civ. Code, sec. was upheld in Cole v. Eichards Irr. 1410), but as it was held that the Co., 27 Utah, 205, 101 Am. St. Eep. finding that there was a running 62, 75 Pac. 376, See, also, Pomeroy stream was sustained by the evidence, on Eiparian Rights, sec. 51. As- there was no decision further than to sumed in Kinney on Irrigation, hold that it was not necessary to a passim. right of appropriation under the code 6 Duckworth v. Watsonville etc. Co., that the stream should run to the sea 150 Cal. 520, 89 Pac. 338. or to a junction with some other i Duckworth v. Watsonville Co., 158 watercourse. This point has no bear- Cal. 206, 110 Pac. 927. ing on riparian rights. It was also In a case involving, not the law of held that one owning land upon an appropriation, but the law of riparian outlet of a lake, but not on the lake 347 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 375 As to rights in artificial ponds or reservoirs caused by damming a river, reference is made to a previous chapter. 8 Lakes differ from streams in the feature that one is standing while the other is running. For streams, a flow is the chief characteristic ; for lakes, a stand or head. If the law of priority is to be applied to lakes, subsequent surplus appropriations must rest upon the question how they affect the prior claimant's stand or head of water, not its flow. He has a right to prevent any subsequent taking which would lower the head below the intake of his pumps or otherwise increase the cost of pumping. 9 (3d ed.) 347. Flood or Storm or Surface Waters. In many parts of the West especially in the desert regions rainfall is scanty while -evaporation is great. Most of the rain descends in very heavy Iccal storms (frequently heavy thunderstorms), which give rise to short-lived torrents, sometimes of great volume. As a result a dry wash will suddenly fill with a stream twenty feet deep, advancing in successive high waves, the flow lasting a few hours, then rapidly subsiding; and perhaps the wash would not contain water again for several years. In such occurrences, the water will spread out when it reaches the bottom of the wash and flood much lowland. 10 The decisions are in conflict upon the subject of whether over- flow or flood waters entering a channel carrying a permanent river are to be treated as surface waters or as part of the water-' course, says the Montana court, 11 adding that in Indiana, Missouri, Kansas, Nebraska and Washington the former is held, 12 and in itself, which outlet was dry for a con- Recent statutes require consent of siderable part of each season, could State Engineer before drainage of not take water from the lake above, lakes is permitted. Neb. Stats. 1909, during such dry period, to use on his p. 525; S. D. Stats. 1909, c. 102. land upon the outlet below. This was 10 The writer witnessed such a flood not, as counsel suggests, based on the in Tonopah, Nevada, some years ago, fact that there was no flowing water which, after leaving the hills, reached in the outlet at such times, but on a flat where the town lies and sent the fact that it then contained no a stream of water two feet deep water at all." down the main street. It disappeared 8 Supra, sec. 32. inside of two days, but it was a week 9 Duckworth v. Watsonville Co., before the railway washouts could be 158 Cal. 206, 110 Pac. 927. Unless repaired and fresh provisions could the subsequent appropriator compen- be brought into camp. sates him (by condemnation under n Fordham v. Northern Pac. Ry. power of eminent domain) for expense Co., 30 Mont. 421, 104 Am. St. Rep. of changing apparatus. Salt Lake 729, 76 Pac. 1040, 66 L. R. A. 556. City v. Gardner (Utah), 114 Pac. 147. 12 Citing cases. 376 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 347 Georgia, Ohio, Iowa, Virginia, Minnesota, South Carolina, Wis- consin and Tennessee the latter is held, 13 while in California prob- ably the former. 14 The Montana court holds that it is a ques- tion of fact in each case, depending chiefly upon whether con- tinuity is or is not permanently broken. The California rule has, however, been recently held to be the latter the flood water is part of the stream though the decisions hitherto conflicted. 15 The California court recently said: "And when such usually recurring floods or freshets are accustomed to swell the banks of a river beyond the low-water mark of dry seasons and overflow them, but such waters flow in a continuous body with the rest of the water in the stream and along well-defined boundaries, they constitute a single natural watercourse "Where the stream usually flows in a continuous current, the fact that the water of the stream, on account of the level character of the land, spreads over a large area without apparent banks does not affect its character as a watercourse. ' ' 16 The overflow waters of a stream, especially where they run in a well-defined course, and again unite with the stream at a lower point, must be regarded as a part of the watercourse from which the overflow comes, and cannot be regarded or dealt with as surface water. 17 So it has been held that, when surface waters collect into a pond, which is of a permanent character, they cease to be surface waters. 18 Even surface water becomes a natural watercourse at the point where it begins to form a reasonably well-defined chan- nel, with bed, and banks, or sides, and current, although the stream itself may be very small and the water may not flow continuously. 19 The question is not to be determined alone from the origin of the water, for streams may be composed wholly of surface water or that which falls in the shape of rain or snow. 20 13 Citing cases. 17 Brinegar v. Copass, 77 Neb. 241, 14 See the leading English case of 109 N. W. 173. Broadbent v. Ramsbotham, 11 .Ex. 18 Schaefer v. Marthaler, 34 Minn. 602. 487, .57 Am. Rep. 73, 26 N. W. 726; is Infra, riparian rights, sec. 825, Alcorn v. Sadler, 66 Miss. 221, 5 where the matter is chiefly involved. South. 694; Rait v. Furrow, 74 Kan. 16 Miller v. Madera etc. Co., 155 101, 85 Pac. 934, 6 L. R. A., N. S., Gal. 59, 99 Pac. 502, 22 L. R. A., 157. N. S., 391; accord, Town of Jeffer- 19 Churchill v. Lauer, 84 Cal. 233, son v. Hicks, 23 Okl. 684, 102 Pac. 24 Pac. 107. 79; Broadway Mfg. Co. v. Leaven- 20 Rait v. Furrow, 74 Kan. 101, worth Co., 81 Kan. 616, 106 Pac. 85 Pac. 934, 6 L. R. A., N. S., 157; 1034. See Cook v. Seabord etc. Co., Palmer v. Waddell, 22 Kan. 352. 107 Va. 32, 122 Am. St. Rep. 825, 57 "When the surface waters which S. E. 564, 10 L. R. A., N. S., 966. fall upon the watershed of Pond 348 ' Ch. 16. WHAT CAN BE APPEOPEIATED. (3d ed.) 377 The foregoing is given as a matter of definition, upon which cases seem fairly agreed ; namely, that after storm or flood waters have once reached the channel of a living stream they are a part of the watercourse, and cannot be taken out of the channel above lower claimants on the watercourse otherwise than any other part of the stream could. (3d ed.) 348. Drainage of Surface Water. But while, having once reached the channel of a living stream, the storm or flood or seep- age waters are a part of the watercourse, yet until they actually so reach it, or if, having reached a natural depression, there is never any regular flow therein so as to constitute a watercourse, the foregoing does not apply ; the waters are simply surface water. Such water is not governed by the law of watercourses. With respect to such casual water in no definite channel (or, if in a channel, with no definite flow), the question is usually how to get rid of it. In this respect the rule is different at civil law and at common law; and some jurisdictions adopt one of these rules and some the other. 21 The civil law is that the rights of the parties are determined by natural situation, so that the owner of land at a higher level has an easement, over the lower land of a neighbor, to have the surface water pass off naturally, which the lower owner must not obstruct; the common law recognizes no such easement, but calls surface water a " common enemy" which the lower owner may keep from coming from upper lands, and which either owner may get rid of as best he can (provided, under either rule, there is no artificial accumulation thereof discharged upon another's land). 22 Creek ultimately gather and collect in providing for the organization of the channel of that stream, they lose storm water districts, their character as surface water and 21 See Ogburn v. Conners, 46 Cal. become the waters of a watercourse, 346, 13 Am. Rep. 213, and McDaniel and when they overflow the bank op- v. Cummings, 83 Cal. 515, 23 Pac. posite the townsite and pursue a gen- 795, 8 L. R. A. 575, setting this eral course back into the same water- forth. course, or into another watercourse, 22 Arizona. The common law, sem- although they do not follow a chan- ble, Kroeger v. Twin Buttes etc. Co. nel with well-defined banks, they con- (Ariz.), 114 Pac. 553. tinue flood waters of the watercourse California adopts the civil-law rule, and do not become surface water." having done so by inadvertence, Town of Jefferson v. Hicks (1909), but holding to it now as a rule of 23 Okl. 684, 102 Pac. 79. property. Ogburn v. Conners, 46 Cal. Protection of lands from overflow. 346, 13 Am. Rep. 213; McDaniel v. See CaL Stats. 1909, chapter 222, ' Cummings, 83 Cal. 515, 23 Pac. 795, 378 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 348 The common-law rule that a man may rid himself of surface water as best he may is being to-day modified by a qualification that the mode adopted must be a reasonable use of his own land and not arbitrary or excessive, similarly to the new rule regarding diffused percolating water. 23 Another recent tendency is to give the State Engineer supervision over drainage. 24 Questions of drainage were formerly of infrequent occurrence in the West. 25 But to-day, paradoxical as it may seem, irrigation is bringing them into importance; for irrigation water accumu- lates upon lower lands by seepage from higher lands, and in ex- tensively irrigated regions the lower lands are becoming water- logged, causing a serious problem. 26 Consequently statutes are 8 L. R. A. 575; Wood v. Moulton, 146 Cal. 317, 80 Pac. 92; Cederburg v. Dutra, 3 Cal. App. 572, 86 Pac. 838; Meigs v. Pinkham (Cal. 1910), 112 Pac. 883; Galbreath v. Hopkins (Cal. 1911), 113 Pac. 174. Colorado. Which rule is in force in Colorado seems to be left open in Canon City etc. Co. v. Oxtoby (1909), 45 oolo. 214, 100 Pac. 1127. Idaho. See Teeter v. Nampa etc. Irr. Dist. (Idaho), 114 Pac. 8. Kansas. The common-law rule gov- erns. City of Paola v. Garman (1909), 80 Kan. 702, 103 Pac. 83. See Johnston v. Hayre (Kan.), 109 Pac. 10.75. Nebraska. See Kane v. Bowden, 85 Neb. 347, 123 N. W. 94. Oklahoma. The common-law and not the civil-law rule is adopted in Oklahoma. Chicago Ry. v. Groves, 20 Okl. 101, 93 Pac. 755, 22 L. R. A., N. S., 802 ; Davis v. Frey, 14 Okl. 340, 78 Pac. 180, 69 L. R. A. 460; Cole v. Missouri Co., 20 Okl. 227, 94 Pac. 540, 15 L. R. A., N. S., 268; Town of Jefferson v. Hicks (1909), 23 Okl. 684, 102 Pac. 79. Oregon. Whether the common-law or civil-law rule of surface waters pre- vails in Oregon has not been decided up to the decision in Price v. Oregon etc. Co., 47 Or. 350, 83 Pac. 843. See Kane v. Littlefield, 48 Or. 299, 86 Pac. 544. South Dakota, See Anderson v. Drake (S. D.), 123 N. W. 673. Washington. See Peters v. Lewis, 33 Wash. 617, 74 Pac. 815. Wyoming. See Ladd v. Redle, 12 Wyo. 362, 75 Pac. 691. Concerning damage caused by floods, see, also, a later section. Infra, sec. 461 et seq. -3 See Sheehan v. Flynn, 58 Minn. 436, 61 N. W. 462, 26 L. R. A. 632. 24 E. g., Neb. Stats. 1909, p. 525; S. D. Stats. 1909, c. 102. 25 "In a dry and arid climate, where irrigation is necessary 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 landowner is willing to receive, dis- pose of, and profit by the use of all water flowing from the upper lands of another in irrigating his own land. It is seldom that any landowner in this State has occasion to complain of too much water." Boynton v. Longley, 19 Nev. 69, 3 Am. St. Rep. 781, 6 Pac. 437. 26 In the Report of the Secretary of Agriculture for 1909 (page 97) it is said: "Among the most important investigations in drainage are those which are conducted upon irrigated lands. For years it has been known that some irrigated fields easily become swamps, while the productiveness ol others is ruined by the accumulation of injurious alkali. The lands which are most easily irrigated by water from the mountain streams, and which are surprisingly productive when first reclaimed from a desert condition, not infrequently become noisome bogs or 349 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 379 being passed for organization of drainage districts upon the same, lines as irrigation districts. 1 Some further consideration of this is given elsewhere. 2 (3d ed.) 349. Use of Surface Water. Diffused surface water cannot be appropriated against the landowner on whose land it lies. 3 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. 4 alkaline wastes after a few years of cultivation under copious irrigation. This is true of a portion of every irrigated valley in the West. Utah contains not less than 150,000 acres of such land; Colorado, 75,000; Califor- nia, 100,000; Nevada, 250,000; Wyoming, 50,000; Montana, 60,000; Idaho, 40,000, all having been once cultivated and still having valuable water-rights. These are conservative estimates, showing the gravity of the situation, and when considered from the point of the owners -particularly emphasize the importance of using preventive as well as curative meas- ures in the treatment of saturated lands which are under irrigation. .... One drain should be placed along the upper edge of the wet land approximately across the surface slope and sufficiently deep to intercept the underflow from the higher land. Fre- quently this depth must be from five to seven feet. The drain may be a large open ditch, a covered lumber-box drain, or a large pipe, according as may be expedient in such locality. Where the land lies in a series of benches, drains should parallel the upper border of each bench. A few drains are usually required in the lower parts of the fields to remove surplus water which is supplied di- rectly by irrigation or rainfall. These should be located in the depression, but should not be constructed until the intercepting drains have cut off the supply from outside sources." The cost, it is said, will be about fifteen to twenty-five dollars per acre. Other plans for drainage are given. See, also, Farmers' Bulletin, 373, U. S. Dept. of Agriculture. It has been said that a difficulty has arisen under the national irriga- tion projects because these sometimes did not provide drainage systems. See 45 Cong. Ree. 2889. 1 Colorado, Laws 1909, e. 161, pro- viding for drainage districts; Rev. Stats. 1909, sec. 3188 et seq.; Laws 1903, p. 209 et seq. Nevada, Stats. 1911, c. 134. Oregon, Stats. 1911, c. 241, p. 424; Stats. 1911, c. 172, p. 256. Washington, Stats. 1911, c. 97. Wyom- ing, Stats. 1911, c. 95, p. 139. 2 Infra, sec. 462, damage from floods, etc. 3 Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Jacob v. Lorenz, 98 Cal. 332, at 339, 33 Pac. 119; Los An- geles Assn. v. Los Angeles, 103 Cal. 461, 37 Pac. 375; Sanguinetti v. Pock, 136 Cal. 466, 89 Am. St. Rep. 169, 69 Pae. 98. 4 Ibid., and compare the French Law, as given in "Droit Civile Fran- cais," by Aubrey & Rau, 4th ed., vol. 3, p. 43 : "Concerning rain water falling on private land. These waters belonged by right of accession and entirely independent of the fact of actual use, to the owner of the land on which they fall. He may dispose of them as he pleases, whether by retaining them on his land, or by letting others take them, or by letting them take their natural course to lower lands." ("Des eaux pluviales tombant sur un terrain prive. Ces eaux appartiennent par droit d'accession, et independament de tout fait d'occupation, au pro- prietaire du terrain sur lequel elles tombent. II peut en disposer a son gre, soit en les retenant dans son 380 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 349 The English cases have gone into this quite thoroughly. In Rawstron v. Taylor 5 it was held that, in the ease of common surface water flowing in no definite channel, the landowner was entitled to get rid of it in any way he pleased, although he cut it off from plaintiff's mill which it had supplied. In Broadbent v. Ramsbotham 6 it was decided that a landowner has a right to im- pound surface water which flows over his land in no definite channel, although the water is thereby prevente'd from reaching a brook, the stream of which had for more than fifty years worked the plaintiff's mill. Baron Alderson, in delivering the judgment of the court in that case, says: 7 "No doubt, all the water falling from heaven, and shed upon the surface of a hill, at the foot of whch a brook runs, must, by the natural force of gravity, find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please, and appropriating it. He cannot, it is true, do so if the water has arrived at and is flowing in some natural channel already formed. But he has a perfect right to appropriate it before it arrives at such chan- nel." All the many cases already cited considering whether there was or was not a watercourse held that if there was not a water- course, but only diffused surface water, neither the law of riparian rights nor the law of permanent rights by priority of appropriation applies. This is because, as set forth in the first part of this book, streams are natural resources of permanent con- tinuance due to nature, while surface water is not a permanent thing nor definite in character. Anyone receiving such water is subject to the paramount right of each landowner to use his land without regard to its effect in cutting off the water's passage to others. The citations just referred to cover this matter very fully. We state the following recent case merely as an illustra- tion. Surface and seepage water gathered upon a man's land in New Mexico. It was held his sole property, to act upon as he chose without needing a permit from the State Engineer. He fond, soit en les cedant a des tiers, Rain water classed, like running , , . , , water, in the "negative community" soit enfin les laissant couler sour les in the ' dvi] ]aw ^^ 8&Q 5 fonds inferieurs suivant la pente nat- 5 n Ex. 369, 382. urelle du terrain.") 8 11 Ex. 602.' 1 11 Ex. 602, 615. 350 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 381 may consume it all, or he may grant its use to another, and the lower owner has no cause of action. 8 True, as between flood-water claimants neither of whom owns any land where the flood waters gather, priorities may exist. 9 So, just as in the case of waste and seepage water, there are statutes in many Western States for priorities in the use of diffused surface or flood waters by priority of appropriation ; but, as already considered, these apply only to rivals between them- selves, both strangers to the landowner on whose land the floods gather or from which they" come. 10 They may have application between rival ditches, even though not against a landowner's right to interrupt the water for the purpose of using it himself, or for keeping his land dry, etc. Such statutes for appropriation of flood or seepage water are usually found only in such regions as New Mexico, the Dakotas, etc., where the landowner is usually the United States, remaining inactive. Accordingly, filings may be there made with the State Engineer for permits to build dams in dry ravines, gulches or coulees on public land to store flood waters, and the first permittee will have the better right. 11 (3d ed.) 350. Swamp Lands. Title to public lands of the character known as "swamp lands" rests in the State and not in the United States, and they are dealt with by special statutes and rules of 8 Vanderwork v. Hewes (N. M.), v. Hynes (Mont. 1910), 108 Pac. 785. 110 Pae. 567. The Territorial Engineer of New Mex- water, but it was soon washed out floodg . different seasons of , . SSS posting notice, not requiring permit 10 Supra, sec. 55. of State Engineer. n See N. M. Laws 1909, p. 371 ; A California Statute of 1911, chap- N. D. Laws 1909, c. 152, p. 179 ; S. D. ter 406, section 6, concerns licensing Stats. 1911, c. 263, sec. 468; Sullivan flood-water storage for power pur- v. Jones (Ariz.), 108 Pac. 476; Kellj poses. 382 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 350 their own. 12 The State of California having been admitted into the Union on the ninth day of September, 1850, on the twenty- eighth of the same September the Congress passed an act "to enable the State of Arkansas and other States to reclaim the swamp and overflowed lands within their limits," known as the Arkansas act, by which the State of California became the owner of swamp lands, on the twenty-eighth day of September, 1850. Rules for the disposal of swamp lands in California are con- tained in the Political Code. 13 Section 3446 provides that when- 12 The law concerning them is dis- cussed in Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Heckman v. Swett, 99 Cal. 303, 33 Pac. 1099. See State v. Warren etc. Co. (Or.), 106 Pac. 780. is Political Code, part 3, title 8, chapter 2. Concerning reclamation districts, reference may be made to the following cases (see, also, cases on irrigation districts, infra, sec. 1356 et seq.) : Kimball v. Reclamation 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; Ralston v. Board of Super- visors, 51 Cal. 592; People v. Hagar, 52 Cal. 171; People v. Ahern, 52 Cal. 208; People v. Reclamation Dist., 53 Cal. 346; People v. Houston, 54 Cal. 536; People v. Williams, 56 Cal. 647; Reclamation 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. 558; Bixler v. Board of Supervisors, 59 Cal. 698; Swamp Land Dist. No. 110 v. Feck, 60 Cal. 403 ; Reclamation Dist. No. 3 v. Goldman, 61 Cal. 205; Reclamation 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. 634; Williams v. Board of Su- pervisors, 65 Cal. 160, 3 Pac. 667 ; Reclamation Dist. No. 3 v. Goldman,. 65 Cal. 635, 4 Pac. 676; Reclamation Dist. No. 108 v. Hagar, 66 Cal. 54, 4 Pac. 945; People v. Hagar, 66 Cal. 59, 4 Pac. 951; Reclamation Dist. No. 3 v. Parvin, 67 Cal. 501, 8 Pac. 43; People v. La Rue, 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. At- torney General v. Parvin, 74 Cal. 549, 16 Pac. 490; Swamp Land Dist. No. 407 v. Wilcox, 75 Cal. 443, 17 Pac. 241; Hutson v. Woodbridge Protec- tion 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; Rec- lamation 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. Rep. 144, 32 Pac. 867; Gwynn v. Diersen, 101 Cal. 563, 36 Pac. 103; Reclamation Dist. No. 542 v. Turner, 104 Cal. 334, 37 Pac. 1038; Lower Kings River Reclamation Dist. No. 531 v. Phillips, 108 Cal. 306, 39 Pac. 630, 41 Pac. 335; Swamp Land Dist. No. 307 v. Glide, 112 Cal. 85, 44 Pac. 451; Barnes v. Glide, 117 Cal. 1, 59 Am. St. Rep. 153, 48 Pac. 804; Peo- ple ex rel. 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. Reclamation Dist No. 36, 121 Cal. 522, 50 Pac. 1068, 53 Pac. 1085 ; Hensley v. Reclamation Dist., 121 Cal. 96, 53 Pac. 401; Wein- 350 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 383 ever the owners of more than one-half of any body of swamp land and overflowed lands desire to reclaim the same, they may present to the board of supervisors a petition for the formation of a reclamation district. 14 It is held that this vests in the super- visors absolutely the determination whether the lands are un- reclaimed and whether they are subject to independent reclama- tion; and being so vested, the determination is legislative in its nature, and the courts are powerless to interfere, or to restrain the exercise of the power by the board of supervisors. This holding has since been modified. 15 The power of the State to legislate for the reclamation of swamp lands is not confined to those lands the title to which was acquired under the Arkansas act, but exists as to all swamp and overflowed lands in the State, and the burden of the charges reich 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. Cluff v. City of Oakland, 123 Cal. 598, 56 Pac. 445; Lower Kings River Reclamation Dist. No. 531 v. McCul- lah, 124 Cal. 175, 56 Pac. 887; Cali- fornia Pastoral Co. v. Whitson, 129 Cal. 376, 62 Pac. 28; Reclamation Dist. No. 108 v. West, 129 Cal. 622, 62 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 ex rel. Silva v. Levee Dist., 131 Cal. 30, 63 Pac. 676; Adams v. City of Modesto, 131 Cal. 501, 63 Pac. 1083; Reclama- tion 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. 639, 79 Pae. 374; Reclamation Dist. No. 551 v. Van Loben Sels, 145 Cal. 181, 78 Pac. 638; Glide v. Superior Court, 147 Cal. 21, 81 Pac. 225 (modified in Inglin v. Hoppin, 156 Cal. 483, 105 Pac. 582) ; Reclamation District No. 70 v. Sherman, 11 Cal. App. 399, 105 Pac. 277; Swamp Land Reclamation Dist. No. 341 v. Blumenberg, 156 Cal. 532, 106 Pac. 389; Keech v. Joplin, 157 Cal. 1, 106 Pae. 222; Metcalfe v. Merritt, 14 Cal. App. 244, 111 Pac. 505, and other cases. See, also, Billings etc. Co. v. Fish, 40 Mont. 256, 106 Pac. 571; State v. Warren etc. Co. (Or.), 106 Pac. 780; State v. Superior Court, 42 Wash. 491, 85 Pac. 264. 14 Prior to the enactment of the Political Code, similar legislation ex- isted in the statutes, and section 3478 of the Political Code allowed recla- mation districts formed under laws prior to March 27, 1868, to be re- organized. See San Francisco Sav- ings Union v. Reclamation District, 144 Cal. 639, 79 Pae. 374. 15 Glide v. Superior Court, 147 Cal. 21, 81 Pae. 225. See Inglin v. Hop- pin, 156 Cal. 483, 105 Pac. 582. As to validity of organization, see Keech v. Joplin, 157 Cal. 1, 106 Pac. 222. Organization of district col- lateral attack description of territory affected, Metcalfe v. Merritt (Cal. App.), Ill Pac. 505. Establishment of district notice description of bound- aries constitutionality of law double taxation collateral attack, Barnes v. Colusa County Supervisors (Cal. App.), 110 Pac. 820. Fiscal affairs, Keech v. Joplin, 157 Cal. 1, 106 Pac. 222. As- sessment of costs of improvements, Reclamation Dist. No. 535 v. Clark, 155 Cal. 345, 100 Pac. 1091. Judicial review officer's acts, Lamb v. McMul- len, 157 Cal. 14, 106 Pac. 229; Inglin v. Hoppin, 156 Cal. 483, 105 Pac. 582. 384 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 350 for the work may be placed on specific lands in proportion to the estimated benefits thereto, and the members of the assessing board (the board of drainage commissioners) are not disqualified because they themselves . own lands within the district assessed. 18 In this case an act creating a large district in the Sacramento Valley was upheld, and Mr. Justice Henshaw reviews the history of such legislation in California. The act was repealed in 1911. 16a It has been said that there are very grave doubts whether, upon a fair interpretation of the State statutes providing for reclamation, the barring of the flow of a regular and defined stream from the lands below, not swamp, is contemplated, or whether the State would have power, by any statute, to authorize such a proceeding. The statute seems to have in view levees along the sides of watercourses, and not across them. 17 Reclaimed swamp lands come within the same law as to irriga- tion and riparian rights as other agricultural lands. In one case it was urged that swamp lands are per se lands upon which water cannot be beneficially used for irrigation, but the court held that the legal effect of such use depends on the facts pre- sented in each case, .saying: "Merely because the land may have been reclaimed as swamp land does not necessarily deprive it of the need of irrigation. The circumstance that it has been re- claimed may raise a presumption that at a particular time it required no water for irrigation; and testimony to that effect may be admitted in evidence for the purpose of ascertaining the quantity of water essential to its productiveness. But when it appears that the land has in fact been reclaimed sufficiently to entitle its possessor to a deed from the State, if in an arid sec- tion, it implies that the land has been deprived of its excessive moisture, and thereby restored to the same condition as other agricultural lands in the vicinity, and subject to the same rights in respect to the stream flowing through it, or in an appropriation from any source of water supply for its irrigation." 18 18 People ex rel. Chapman v. Sac- See, also, concerning swamp lands, ramento Drainage District (1909), Morrow v. Warner etc. Co. (Or.), 101 155 Cal. 373, 103 Pac. 207.' Pac. 171; Dixon v. Same (Or.), 101 I6a Stats. 1911, c. 8. Pac. 189; Harrington v. Same (Or.), 17 Lux v. Haggin, 69 Cal. 255, 10 101 Pac. 189; Forkett v. bame (Or.), Pac 674. 101 Pac. 190; Dryden v. Pelton-Arm- 18 Hough v. Porter, 51 Or. 318, 95 strong Co., 53 Or. 418, 101 Pae. 190. Pac. 732, 98 Pac. 1083, 102 Pac. 728. S 351 Ch. 16. WHAT CAN BE APPROPRIATED. (3d ed.) 385 (3d ed.) 351. Underground Water. How far the law of appropria- tion applies to underground water is considered elsewhere. It is thought best to consider all aspects of the law of underground water together in a single place. 19 t 19 Infra, sees. 1039 et seq., 1106 ^ 1158. 352-360. (Blank numbers.) Water Bights 25 386 (3dea.) Pt. IH. THE LAW OF PKIOE APPROPRIATION. CHAPTER 17. HOW AN APPROPRIATION IS MADE.. THE ORIGINAL METHOD. 361. The original method. 362. Possessory origin of this method. 363. Ownership of land unnecessary, and water need not be returned to the stream. A. BY ACTUAL DIVERSION. 364. Distinguished from the statutory method. 365. The statutes do not apply. 366. Settlement on stream banks not alone enough No preference to riparian owners. 367. Same. B. TO SECURE THE BENEFIT OF RELATION. 368. Object of statutory provisions. 369. Provisions chiefly declaratory only. 370. Essential requisites. C. NOTICE. 371. Form of notice. 372. Contents and recording of notice. 373. Purpose of the notice. 374. The notice operates as a warning. 375. Failure to post notice. 376. Notice alone not enough. D. BENEFICIAL PURPOSE. 377. Necessity for Ttona fide intention. 378. What constitutes a beneficial purpose. 379. Motive. 380. Evidence of intention. 381. Intention alone not enough. E. DILIGENCE. 382. Necessity for diligence. 383. What constitutes diligence. 384. Delay during legal proceedings. 385. Failure to use diligence. F. COMPLETION OF CONSTRUCTION WORK. 356. Completion of work preparatory to use of water. 387. What constitutes completion. 361 Ch. 17. HOW APPKOPRIATION IS MADE. (3d ed.) 387 388. Means of diversion. 389. Diversion alone. 390. Use of existing ditches. 391. Same. 392. Changes in the course of construction. G. EELATING BACK. 393. Origin of the doctrine. 394. Effect of relation. H. ACTUAL APPLICATION. 395. Necessity for actual application and use under the possessory origin of the law. 396. Same Under the view now developing. 397. Federal requirements. 398. Recapitulation. 399-407. (Blank numbers.) (3d ed.) 361. The Original Method. Using the California Civil Code 1 as. a model for legislation, and, consequently (as the Cali- fornia code is chiefly only declaratory of the early decisions), basing their method upon the early California decisions, the fol- lowing method was up to recent years followed throughout the West by statute, or in the absence of statute, by decision of the courts. 2 But in recent years, especially since the legislative sessions of 1903, most of the States have adopted the "water 1 Sees. 1410-1422. Montana. See next note. 2 Arizona. Rev. Stats. 1901, p. Nevada. Comp. Laws, 1900, sees. 1042, sec. 4169. 56 e t se q., 424. Colorado. Sieber v. Frink, 7 Colo. AT ,,&,,. ?,,, r^ Q+ , icai i to o T r>ni -o > . n Nebraska. L/omp. btats. 1891. e. 148, 2 Pac. 901; Farmers' etc. Co. v. qq 844 Southworth, 13 Colo. Ill, 21 Pae. oa ' p- **' 1028 4 L. R. A. 767. Oregon. Hills' Ann. Laws, p. 1930, Idaho. 2 Idaho Codes, sec. 2583; secs - l ~ Q - A more enlarged treatment, McLean's Rev. Codes, sec. 3242 et sti11 based on the California method, seq.; Laws 1901, p. 191: Sand Point w as provided later. Stats. 1899, p. etc. Co. v. Panhandle etc. Co., 11 172 > Am - 1901 , P- 136, 1903 (Sp. Idaho, 405, 83 Pac. 347. In Speer v. Sess.), p. 25. But the statute of Stephenson, 16 Idaho, 707, 102 Pac. 1905 (Stats. 1905, p. 401) was based 365, the original Idaho law was said rather upon the new statutory or to be: "An appropriation was ini- "water code" method described in the tiated by posting a notice at or near next chapter. In 1909 the full the point of intended diversion, stat- water code procedure was adopted, ing certain facts; and an inchoate as in the next chapter, nght thereby arose which would ripen Texas. Act of March 19, 1889. into a legal and complete appropria- Utah. Rev. Stats. 1898, secs. 1261- tion upon the final delivery of the 1275. waters to the place of intended use." Washington. See next note. Kansas. See next note. Wyoming. Laws 1869, p. 310. 388 (3d ed.) Pt. HI. THE LAW OF PEIOE APPEOPEIATION. 362 code" system described in the next chapter, which originated in Wyoming, as a kind of systematization of the California prin- ciples, and the older statutes and decisions are thus, so far as the water code method differs from that in this chapter, superseded; though that method is founded at the bottom on- the ideas of the method described in this chapter. At the present day, the method here set forth remains substantially in California, Kansas, Montana and Washington. 3 (An exception was made in 1911, in California, providing a new system for power uses only, as set forth in the next chapter.) Under the California doctrine these rules apply only to waters upon public domain (to which the doctrine of appropriation is in California restricted); 3 under the Colorado doctrine, to all waters wherever situated. All rights acquired upon public land under these rules are protected, so far as the United States is con- cerned, by the act of 1866, sections 2339, 2340, of the Revised Statutes of the United States. In the following, decisions from all jurisdictions are given, since, until recently changed by statute, the rules were the same in all, following the California decisions. The method described in this chapter might be called the original method; and that, in the next chapter, the new method. (3d ed.) 362. Possessory Origin of This Method. Having found water that can be appropriated and a proper place to appropriate it (in California it must be on or flowing by public land), the right to the water is not complete until the water is actually taken into one's possession, or rather, until all work preparatory to the actual use of the water is completed, since that is the equivalent of taking possession; it is the nearest to possession 3 California. Civ. Code, sees. 1410- mining and manufacture. See sees. 142 9 1540, 1541. Kansas. Gen. Stats. 1901, sees. The statutes of Texas are a com- 3609-3613; Gen. Stats. 1905, sec. promise between the two methods. 3791 et seq.; Gen. Laws 1909, sec. ln Alaska, there being no statutes 4405 hereon, the district rules usually fol- Montana. Stats. 1907, p. 489; low the California Civil Code See, Civ. Code 1895, sees. 1880-1892; Am. for example, those quoted m Thorn- Stats 1901 p 152 dyke v. Alaska Perseverance Co. (Oct. Washington.' Ballinger's Codes 5 > 1908), 164 Fed. 657. 1897, sec. 4092; Pierce's Code 1905, 3a Supra, sees. Ill et seq., 151 et sec. 5132 et seq. Appropriations for seq., 227 et seq. 363 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 389 that the nature of the right makes possible. 4 The appropriator acquires no right until he actually takes possession. 5 The rules developed in the early days upon the public lands in California, and (upon the public land) still prevail in Cali- fornia (so far as State law prevails) substantially as laid down in the early decisions of the court. The proposition around which these rules center is, it should be repeated, that the requi-, sites are those furnishing an equivalent to taking possession of the flow of the water, the right having arisen as a possessory right on the public domain. It is an illustration of the possessory origin of the law of appropriation. 8 (3d ed.) 363. Ownership of Land Unnecessary and Water Need not be Returned to the Stream. It has previously been pointed out that there are no personal requisites concerning the appropriator. It is immaterial whether he is an alien, minor, riparian pro- prietor, etc. 7 It will be well to repeat here that ownership of any land is not a requisite either; the appropriator need not locate any land. 8 That is a distinguishing feature of the law of appropriation. Water may be appropriated for use any place 9 by anyone, and often is diverted by companies who own no land, to supply distant people. The supreme court of the State of Washington says that "the right of appropriation, as defined by the best authorities, is not controlled by the location of the stream with reference to the premises which are irrigated." 10 The Colorado court says in the case last cited: "The appro- priator, though he may not own the land on either bank of a running stream, may divert the water therefrom, and carry -the 4 Conger v. Weaver, 6 Gal. 548, 65 doctrine, further rights as a riparian Am. Dec. 528, 1 Morr. Min. Rep. 594 proprietor. (quoted infra, sec. 393); Thompson 9 In New Mexico by statute an ap- v. Lee, 8 Cal. 275, 1 Morr. Min. Rep. propriation cannot be made for use 610. beyond the watershed. Infra, sec. 5 Bybee v. Oregon etc. Co., 139 144 - U. S. 663, 11 Sup Ct. Rep. 641, 35 10 Offield v. Ish, 21 Wash. 277, 57 L. Ed 305 Pac. 809. See, also, Long on Irri- -.OQ gation, 50; Thomas v. Guiraud, 6 See supra, sec. 139. g olo ' 530 .' Hammond v B ose, 11 7 Supra, sec. 318 et seq. . Colo. 524, 7 Am. St. Rep. 258, 19 8 Supra, sec. 281. Except as re- Pac. 466; Oppenlander v. Left Hand cent water codes change the rule, sec. Ditch Co., 18 Colo. 142, 31 Pac. 854. 282, supra, and sec. 509, infra. And And see supra, sec. 319, appropria- it must also be noted that if the ap- tion by trespasser. propriator does have land along the But see Avery v. Johnson (Wash.), stream, he has, under the California 109 Pac. 1028. 390 (3d ed.) Pt. III. THE LAW OF PRIOB APPROPRIATION. 364 same whithersoever necessity may require for beneficial use, without returning it, or any of it, to the natural stream, in any manner." The supreme court of Utah says: "In order that the appropriator may be entitled to the use of such water, it is not essential that he should have located or taken possession of any tract or parcel of the public domain bordering upon the stream or lake from which the appropriation is made, or that he even have an interest in or to the lands proposed to be irrigated, if such be the beneficial purpose of the appropriation. An appro- priation may be made of such water for the irrigation of lands not situated upon or near the stream or lake from which it is taken, and the water may be conducted by means of ditches or channels, or otherwise, across the intervening public lands, to irrigate lands possessed by the appropriator or others, or he may sell and dispose of the water thus conducted to others to use it for a beneficial purpose on claims or lands possessed or owned by them, or in which they have an interest, and upon which the wafer may be and is applied for a beneficial purpose." n As elsewhere considered, the transition from a * ' possessory " to a "specific use" system now going on in the law of appropriation tends to modify this characteristic, and, by making the appropria- tion inhere in the specific use first made of it, tends to require that an irrigator own land of his own before he can appropriate water for irrigation. But that is as yet only a tendency in the law; as already pointed out the original view still strongly pre- vails in making the right independent of the place or purpose of use. 12 A. BY ACTUAL DIVERSION. (3d ed.) 364. Distinguished from the Statutory Method. An appro- priation may be made by a completed actual diversion for a beneficial purpose (without following the statute) or else by pro- ceeding under the statute. The difference is that in the latter case the appropriator can claim the benefit of the doctrine of relation, while in the former he cannot. The difference, however, existed from the earliest times, and the statute merely fixed the details of the method by which an appropriator could secure the benefit of the doctrine of relation. 33 11 So wards v. Meagher (Utah), 108 13 De Necochea' v. Curtis, 80 Cal. Pac. 1113. 397, 20 Pac. 563, 22 Pac. 198; Wells 12 Supra, sees. 139, 281. T. Mantes, 99 Cal. 583, 34 Pac. 324. 365 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 391 These two are the only methods. Unless there is a right by actual diversion as below set forth, or by compliance with the statute, it cannot be spoken of as an appropriation. 14 There can be no such thing as a constructive appropriation, resting as the matter does so largely upon actual intent. 15 There can be no ap- propriation by prescription, as an appropriation is an original acquisition from the government (in. California, the United States, the doctrine of appropriation being there confined to the public lands; under the Colorado doctrine, from the State), against whom the statute of limitations does not run. 18 This rule precludes an appropriation improperly made, but continued for five years, from being of any force, the land having been public land part of that time. 17 (3d erf.) 365. The Statutes Do not Apply. Where one does not seek the benefit of the doctrine of relation, 18 and actually completes his construction work, and diverts the water for a beneficial pur- pose before others intervene, his claim as an appropriator is valid, and always has been. An appropriation is merely the acquisition of a right from the government (in California, on pub- lic land) initiated by taking possession of the stream for a beneficial purpose. If there are rival claimants, the government demands compliance with the statutory formalities, which formalities originally rested upon custom, and now upon State legislation; but if there are no rival claimants, the government is alone concerned, and acquiesces (the act of 1866), because such was the rule under the early customs. Possession is a good title against a later possessory claimant. 19 As between the gov- ernment and the appropriator there are only two requisites for this the actual diversion of the water and that the diversion is for a beneficial purpose. If there are no rival claimants of any kind up to such completion of work, and actual possession, that is enough to satisfy the government, who is then alone concerned, 14 Senior v. Anderson, 115 Gal. 42 Pac. 453; State v. Quantic, 37 496, at 505, 47 Pac. 454. Mont. 32, 94 Pac. 491; Jackson v. 15 Kelly v. Natoma etc. Co., 6 Cal. Indian etc. Co., 18 Idaho, 251, 110 105, 1 Morr. Min. Rep. 592. Pac. 251. 16 Matthews v. Ferrera, 45 Cal. 17 Ibid. See infra, sec. 591. 51; Wilkins v. McCue, 46 Cal. 656; 18 Infra, sec. 393. Jatunn v. Smith, 95 Cal. 154, 30 Pac. 19 Evans Ditch Co. v. Lakeside D. 200; Smith v. Hawkins, 110 Cal. 122, Co., 13 Cal. App. 119, 108 Pac. 1027. 392 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 365 and the right is complete against later attack on the ground of failure to comply with the statutes. 20 The leading case is Wells v. Mantes. 21 In another case it was held that where there has been an actual application and use of water, the right of the appropriator is not impaired by the fact that there has been no compliance with the provisions of the Civil Code for the acquisi- tion of water-rights. 22 And in a more recent case ^ Mr. Justice Shaw said: "In order to make a valid appropriation, it was not necessary for Duncan to post and record a notice of appropriation as provided in the Civil Code. 24 The method of acquiring a right to the use of water as there prescribed is not exclusive. One may, by a prior, actual, and completed appropriation and use, without proceeding under the code, acquire a right to the water beneficially u"sed, which will be superior and paramount to the 20 Mitchell v. Canal Co., 75 Cal. 464, 17 Pac. 246; Wells v. Mantes, 99 Cal. 583, 34 Pac. 324 ; De Neeochea ' v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Burrows v. Burrows, 82 Cal. 564, 23 Pac. 146; Watterson v. Saldunbehere, 101 Cal. 107, 35 Pac. 432; Taylor v. Abbott, 103 Cal. 421, 37 Pac. 408; Senior v. Anderson, 115 Cal. 496, 47 Pac. 454; Duckworth v. Watsonville Co., 158 Cal. 206, 110 Pac. 927. 21 The headnote to Wells v. Mantes, supra, sums up the decision as fol- lows: "The scope and purpose of the provisions of the Civil Code upon water-rights were merely to establish a procedure for the claimants of the right to the use of the water whereby a certain definite time might be es- tablished as the date at which their title should accrue by relation; and a failure to comply with the rules there laid doA n does not deprive an appropriator by actual diversion of the right to the use of the water as against a subsequent claimant who complies therewith." The decision was that section 1419 of the Civil Code providing for forfeiture for non- compliance with the code formalities does not apply to such a case, the court saying: "To defeat the re- spondent's rights, appellants invoke section 1419 of the Civil Code, which reads: '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 complies therewith.' We think this provision does not refer to an appro- priator by actual diversion, but only to claimants seeking the right to the use of water under the provisions of this chapter of the code. This is made apparent by an examination of the preceding sections. Section 1415 provides: 'A person desiring to ap- propriate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein that he claims the water there flowing to the extent,' etc. Sec- tion 1416 reads: 'Within sixty days after the notice is posted the claim- ant must commence the excavation or construction of the work, etc.' Sec- tion 1418 reads: '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.' It thus becomes apparent from these provisions that the word 'claimants' as used in section 1419 re- fers to a party posting and recording the notices required by the provisions of section 1415, and does not apply to an appropriator by actual diversion." 22 Watterson v. Saldunbehere, 101 Cal. 107, 35 Pac. 432. 23 Lower Tule etc. Co. v. Angiola etc. Co., 149 Cal. 496, 86 Pac. 1081. In this case the appropriation was made by cutting a hole in a river levee and letting the water run by the side of the levee down to his land. 24 Sees. 1415-1421. 365 Ch. 17. HOW APPROPRIATION IS MADE. (3ded.) 393 title of one making a subsequent appropriation from the same stream in the manner provided by that statute." 25 One who had long been using the water on public land as ap- propriator was protected in De Necochea v. Curtis l against a later homesteader claiming as a riparian owner, though the appro- priator' had not complied with the formalities required by the code. 2 In Wells v. Mantes 3 he was likewise protected against a later appropriator who did comply with the code. In Utt v. Frey 4 the appropriator died, and his son in law entered and took possession without any formal transfer. The latter 's right was upheld as a new appropriation by actual diversion and use. In Griseza v. Terwilliger 5 it was held that a transferee under a parol sale of the water-right takes no title by virtue of the sale, because of the statute of frauds, but- if he actually takes possession and uses the water, he has a good title as a new appropriator by actual diversion, though the code formalities were not performed. In Idaho it has been held that one having actually used the water is an appropriator by actual diversion, and the fact that he there- after posted -a notice does not impair his right to claim as such instead of under the notice. 6 In other States, while following the original method of appro- priation, the same result was reached. The Montana court said (after quoting from De Necochea v. Curtis and Wells v. Mantes, supra) : "We think the construction of the statute by the supreme court of California is logical and correct, and are of the opinion that the Montana act should be construed in the same manner." 7 Likewise in Alaska, Colorado, Idaho, Nevada, Utah, Washington and Wyoming. 8 25 Citing (in addition to the cases 3 99 Cal. 583, 34 Pac. 324. cited in note above) McGuire v. 4 106 Cal. 392, 39 Pac. 807. Brown, 106 Cal. 672, 39 Pac. 1060, 5 144 Cal. 456, 77 Pac. 1034; infra, 30 L. R. A. 384; Cardoza v. Calkins, sec. 555. 117 oal. 112, 48 Pac. 1010, 18 Morr. e Brown v. Newell, 12 Idaho, 166, Min. Rep. 689 ; McDonald v. Bear R. 85 Pac. 385. etc. Co., 13 Cal. 238, 1 Morr. Min. 7 Murray v. Tingley, 20 Mont. 260, Rep. 626; Kimball v. Gearhart, 12 50 Pac. 724, 19 Morr. Min. Rep. 137. Cal. 29, 1 Morr. Min. Rep. 615; Kelly See, also, Salazar v. Smart, 12 Mont, v. Natoma W. Co., 6 Cal. 105, 1 Morr. 395, 30 Pac. 676; Morris v. Bean Min. Rep. 592; Hill v. King, 8 Cal. (Mont.), 146 Fed. 425. 336, 4 Morr. Min. Rep. 533; Hoff- 8 Alaska. "Inasmuch as the stat- man v. Stone, 7 Cal. 46, 4 Morr. Min. utes of Alaska make no provision re- Rep. 520. specting the necessity of either the 1 80 Cal. 397, 20 Pac. 563, 22 Pac. posting or recording of notices of ap- 198. propriation of waters upon the public 2 Affirmed in Burrows v. Burrows, land, we think no such notice essen- 82 Cal. 564, 23 Pac. 146. tial to the validity," etc.; Van Dyke 394 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 366 (3d ed.) 366. Settlement on Stream Banks not Alone Enough No Preference to Riparian Owners. While the statutory formalities are thus dispensed with in favor of an appropriator by actual diversion, that is as far as the law goes in dispensing with formalities. The law of appropriation recognizes no rigkt flow- ing from merely settling on the banks of a stream. A settlement on the banks does not constitute an appropriation where nothing more is done. A riparian owner may have riparian rights in California, but must proceed like anyone else if he wishes a water-right in jurisdictions following the Colorado doctrine where riparian rights are not recognized. 9 Aside from the ques- tion of riparian rights, elsewhere considered, the settlement does not per se give any right to the water. 10 In one case, 11 the land v. Midnight Sun Co. (Alaska C. C. A.), 177 Fed. 90. California. Cases cited supra. Colorado. Sieber v. Frink, 7 Colo. 148, 2 Pac. 901 ; Water Supply Co. v. Larimer Co., 24 Colo. 322, 51 Pae. 496, 46 L. R. A. 322; Denver Co. v. Dotson, 20 Colo. 304 r 38 Pac. 322; Hoge v. Eaton, 135 Fed. 411. Idaho. Sand Point etc. Co. v. Panhandle etc. Co., 11 Idaho, 405, 83 Pac. 347; Brown v. Newell, 12 Idaho, 166, 85 Pac. 387; Pyke v. Burnside, 8 Idaho, 487, 69 Pac. 477. Montana. Murray v. Tingley, 20 Mont. 260, 50 Pac. 723, 19 Morr. Min. Rep. 137; Morris v. Bean, 146 Fed. 425, affirmed in 159 Fed. 651. Nevada. Ophir etc. Co. v. Carpen- ter, 4 Nev. 534, 97 Am. Dec. 550, 4 Morr. Min. Rep. 640. See, also, S. C., 6 Nev. 393. Utah. "Any person, however, who actually used the water for a useful or beneficial purpose, acquired the right to take the water so used as against all subsequent claimants, re- gardless of whether the user had posted notices or not." Patterson v. Ryan (Utah), 108 Pac. 1118, speak- ing of the method before the present statutes requiring application to the State Engineer. See, also, Sowards v. Meagher (Utah, 1910), 108 Pac. 1113, citing Murray v. Tingley, supra. Washington. Kendall v. Joyce, 48 Wash. 489, 93 Pac. 1091. Wyoming. Morris v. Bean (Mont., but construing Wyoming law), 146 Fed. 425, affirmed in 159 Fed. 651. Miscellaneous. See, also, 60 Am. St. Rep. 800, note. 9 "In order to acquire a prior or superior right to the use of such water, it is as essential that a ripa- rian owner locate or appropriate the waters and divert the same as it is for any other user of water to do so." Hutchinson v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059. "Some contention is made that said act of the legislature does not apply to persons who own the land on both sides of the stream, and therefore own the bed of the stream, and for that reason a riparian owner is not re- quired to pay the fees provided in said act. There is nothing in that contention." Idaho etc. Co. v. Ste- phenson (1909), 16 Idaho, 418, 101 Pac. 821. 10 Walsh v. Wallace, 26 Nev. 299, 99 Am. St. Rep. 692, 67 Pac. 914; Leggat v. Carroll, 30 Mont. 384, 76 Pac. 805 ; Robinson v. Imperial etc. Co., 5 Nev. 44, ^0 Morr. Min. Rep. 370; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210, saying: "Under the decisions of this court that fact alone confers upon them no title to a right to the use of the waters of the stream." Van Dyke v. Midnight Sun Co. (Alaska), 177 Fed. 90, 100 C. C. A. 503; McFar- land v. Alaska etc. Co., 3 Alaska, 308 ; Snyder v. Colorado etc. Co. (Colo. C. C. A.), 181 Fed. 62. 11 Walsh v. Wallace, cited supra. 366 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 395 was settled upon for agricultural purposes, but the water was not diverted, and as riparian rights are not recognized in Nevada, the settler was held to have no right to the water. In another 12 the land was taken up for a millsite and the court said: "The digging of a ditch on public land is not an appropriation of the land for a millsite, nor is the mere appropriation of a millsite an appropriation of water for- purposes of milling." "It would be as absurd to say that the digging of a ditch is an appropriation of land sufficient for a millsite, as to say that to appropriate a millsite would be an appropriation of water for milling pur- poses." Location of a placer mining claim in the bed of a stream is not an appropriation of the water in the stream. 13 Nor is a patented placer mine. 14 In Schwab v. Beam, 15 Judge Hallett did hold that the location of a placer claim gave a right to the water thereon. The court used the following words: "Nothing in the constitution of this State or in the law relating to irrigation in any way modifies or changes the rules of the common law in respect to the diversion of streams for manufacturing, mining or mechanical purposes. In Colorado, as elsewhere in the United States, the law is now as it has been at all times, that for such purposes each riparian owner may use the waters of running streams on his own prem- ises, allowing such waters to go down to subsequent owners in their natural channel." This seems to show that the decision rested not on the principles of appropriation, but on those of riparian rights. The placer claimant under the California doctrine has a right to the water in that way, 10 but not by appropriation. Schwab v. Beam would seem to be an attempt to apply the California doctrine in Colorado, a position which 12 Robinson v. Imperial etc. Co., Co -> 3 Alaska, 63 ; Cascade Co. v. supra. One of these passages is quoted Empire Co. (Colo.), 181 Fed. 1011. from the headnote and the other is l4 Snyder v. Colorado etc. Co., from the opinion. fja. ^ Q ^^ ^ ^ ^ ^ 13 Van Dyke v. Midnight Sun Co. M i n- Rep _ 2 79. Cited with approval (Alaska), 177 Fed. 90; 100 C. C. A. in Madigan v. Kougarok Co., 3 503 ; McFarland v. Alaska etc. Co., Alaska, 63 ; Cascade Co. v. Empire Co. 3 Alaska, 308 ; Snyder v. Colorado etc. (Colo.), 181 Fed. 1011; with disap- Co. (Colo. C. C. A.), 181 Fed. 62; prov al in Snyder v. Colorado etc. Co. Leggatt v. Carroll, 30 Mont. 384, 76 ( Colo- Q c> A> ^ 181 Fed 62> Pac. 805. 16 Crandail v. Woods, 8 Cal. 136, But see Schwab v. Beam (C. C. 1 Morr. Min. Rep. 604; Leigh v. In- Colo.), 86 Fed. 41, 10 Morr. Min. dependent Ditch Co., 8 Cal. 323, 12 Rep. 279; Madigan v. Kougarok M. Morr. Min. Rp. 97. 396 (3d ed.) Pt. III. THE LAW OF PEIOE APPEOPEIATION. 367 the State court repudiates. 17 The case has been criticised; 18 is contrary to the weight of more recent authority just cited, and is probably overruled. 19 (3d ed.) 367. Same. There are hardships in the strict enforcement in this rule, and they will increase as settlement increases'. Riparian lands have certain benefits from the natural flow itself even when not diverting the water, and also, because of their favorable situation, afford opportunities for uses requiring no diversion, such as domestic use, fishing, etc. How, in States rejecting riparian rights, shall these natural benefits be preserved against others appropriating the water for sale for their own profit, or some appropriators who are largely but wasting the water? If they are not preserved, then ownership of riparian land would be an absolute disadvantage; so favorably situated that domestic use or natural irrigation requires no diversion, its use could be destroyed, while distant unfavorably situated land requiring diversion, would be protected in use. To meet the situation, statements are appearing in the reports to the effect that proof of benefit to the land by natural sub- irrigation will constitute such natural subirrigation an appro- priation by actual use, though without diversion. Thus in an Idaho case 20 it is said: "So far as the record shows, appellants' land may produce crops by subirrigation, hence, never necessary to make an appropriation of any of the waters of the streams"; and in the same court it was held 21 that while the fact that a stream in its original native condition was dammed so as to cause the waters to percolate through and subirrigate adjacent meadow lands will not of itself justify the owner of such lands in maintaining the stream dammed in such condition to the injury of other appropriators, yet it may, on the other hand, be suffi- cient to initiate a right for a quantity of the waters of such IT Supra, sec. 118. aside from riparian rights. Mill's Ir- 18 Morrison's Mining Eights, elev- rigation Manual, p. 39. enth edition, page 180, saying: "This 19 See Snyder v. Colorado etc. Co., is an extreme holding on what seems supra. But see Cascade Co. v. Em- to us a very doubtful position." In pire Co., 181 Fed. 1011. the twelfth edition: "This is an ex- 20 Hill v. Standard Min. Co., 12 treme holding, and seems to us an in- Idaho, 223, 85 Pac. 907. defensible position." And recently 21 Van Camp v. Emery, 13 Idaho, doubted whether tenable as a propo- 202, 89 Pac. 752. sition under the law of appropriation 367 Ch. 17. HOW APPROPRIATION IS MADE. (3ded.) 397 stream adequate for the surface irrigation of the lands previously so subirrigated therefrom. So in Colorado there is a statute that natural overflow or natural subirrigation benefiting land may be converted into a ditch diversion with priority as of the time of the first cultivation of the land. 22 Such a rule, if generally adopted, would be a long step toward a return to the rule oj: riparian rights. The natural advantage of the riparian land of being washed by the stream in this respect (as well as others) is the foundation of the common-law riparian right. In fact, in Idaho a solution has more recently been sought by a partial return to the common law of riparian rights itself. 23 Under this decision it seems to be the Idaho rule that a riparian settler actually using the water may, if not making his use by means of a diversion, be deprived of all of it by a bona fide diversion by someone else, but may question the bona fides of such other person. 24 Somewhat similarly in 22 Colo. Rev. Stats. 1908, sec. 3176; Gen. Stats., sec. 1723; Laws 1879, p. 176, sec. 37. Compare Wash- ington, Pierce's Code (1905), sec. 5830. Under this Colorado statute, called the "Meadow Act," the riparian sub- irrigative appropriation must be claimed upon the rendition of any decree settling rights upon the stream, or is barred by the decree like other rights, even if the Io3s of subirrigation is not at that time such as to indicate the necessity for a change from the natural .to a ditch irrigation and such necessity does not arise until several years later. If, however, the riparian owner con- structs a ditch while the adjudica- tion proceedings -are pending and applies to the court for recognition thereof in the pending proceedings, his ditch will be allowed a right dat- ing back, by relation, "to the time when they first enjoyed the benefits of the natural overflow of the stream." Broad Run etc. Co. v. Deuel etc. Co., 47 Colo. 573, 108 Pac. 755. See, also, Humphreys T. Co. v. Frank, 46 Colo. 524, 105 Pac. 1093. Compare Hilger v. Sieben, 38 Mont. 93, 98 Pac. 881. 23 Supra, sec. 185. Under this recent ruling, when no use is made by the ap- propriator (or when the appropriator using the water has not complied with the statutes for making an appro- priation) the riparian owner has a kind of residuum of right which then will (as riparian right) entitle him to an injunction to protect his domestic use and his natural subirrigation, ir- respective of appropriation. Hutch- inson v. Watson D. Co. (1909), 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059. The court held that a showing by a riparian proprietor that he has been for more than seventeen years using the water of a stream for domestic, culinary and household pur- poses and for the use of his livestock, and tnat the water of the stream has continuously flowed through his land "moistening the same," does not amount to an appropriation of any of the water of the stream; but that, at the same time, the rights of this riparian proprietor to use the water for domestic and culinary purposes and watering stock, and to have the water flow by or through his prem- ises, as at common law, are superior and paramount to the rights of a stranger or intermeddler who does not assert or establish any right to the use of water by beneficial appropria- tion. 24 What, if any, is the bearing upon this point of the preference to domes- tic use in the Idaho Constitution? See supra, sec. 308. 398 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 368 Oregon, under the recent abrogation there of riparian rights, the law still gives a limited right as riparian owner, extending to the preservation of a flow (though unused) for possible domestic use. 25 A late case furnishes an excellent illustration of the difficulty of the situation, and how the law of appropriation is being strained to meet it. A waterfall in a canyon in Colorado made a natural garden. The spray and seepage watered ferns and foliage which added to the beauty of the falls. Drawn by these natural attractions, plaintiff acquired the surrounding land, built a hotel and established a health and pleasure resort, which acquired patronage and name. Defendant, a light and power company, started to divert the stream above the falls to generate electric power without returning the water. Although the owner of the resort had made no diversion, nor done any work beyond building houses and improving the banks of the stream, yet he was held to have actually appropriated the water, and the power diversion was enjoined. 1 Although the court, in words, stren- uously denies the existence of the riparian doctrine in Colorado, yet a clearer application of it in fact is difficult to imagine. B. TO SECURE THE BENEFIT OF RELATION. (3d ed.) 368. Object of Statutory Provisions. The early customs out of which the law of appropriation grew were based (as has been already discussed) on the principle that rights on the public domain were open to all, the first possessor being protected ; and that all, also, should have an equal chance. As is said in Nevada etc. Co. v. Kidd, 2 they did not countenance anyone acting "the dog in the manger." Many attempted to secure monopoly of 25 Supra, sec. 129, holding that set- propriation for mining, irrigation, or tlement upon land bordering upon or power purposes, some steps toward a through which a stream may flow, or diversion thereor, or other good and to which a natural source of water sufficient notice, is necessary). Hough supply may be adjacent, or upon v. Porter, ol Or. 318, 95 Pac. 782, 98 which it may be situated, in itself, Pac. 1083, 102 Pac. 728. gives a riparian right for a flow of 1 Cascade Co. v. Empire Co. sufficient water for domestic uses and (Colo.), 181 Fed. 1011, citing Schwab requirements incident thereto which, v. Beam, supra. Contrast Schodde v. even though not now in actual use, Twin Falls Co. (Idaho), 161 Fed. 43, may continue to be demanded (though 88 C. C. A. 207. riparian rights are held abrogated for 2 37 Cal. 282, and in Union Min- other purposes as to all land patented ing Co. v. Dangberg, 81 Fed. 73. since 1877, and to constitute an ap- 369 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 39i! waters by merely posting notices or making a pretense at build- ing canals, ditches, etc., and tried by this means to hold a right to the water against later comers who bona fide sought to con- struct the necessary works for its use. 3 From those conditions grew up a method of making an appropriation to apply specially to rival claimants while the construction work, often prolonged, was going on. If the first comer bona fide and diligently prose- cuted his work, his right on its completion related back to the very beginning of it; 4 otherwise the others were preferred. This method of making the appropriation was, under the early decisions, substantially the same as that now provided for this purpose, in the Civil Code of California. 5 The provisions of the Civil Code of California are merely to fix the procedure whereby a certain definite time might be established as the date at which title should accrue by relation. 8 (3d ed.) 369. Provisions Chiefly Declaratory Only. In codifying the rules governing this method in California (and the early statutes of other States based thereon), the rules laid down in the decis- ions of the court were not materially changed; for the whole code upon this subject is substantially only declaratory of the pre-existing law. 7 The innovations consist in the following: A notice expressing certain details in writing is required. 8 Before the code, notice was a requisite, but it did not have to be a written notice, 9 nor, conse- 3 "These water-right cases are pe- 594; Nevada etc. Co. v. Kidd, 37 Cal. culiar in their nature, in that the par- 282. ties are obliged to depend to so great 5 Sees. 1410-1422. an extent upon the memories of those fl De Necochea v Curti 8Q Cal who came to a new country in the ^ 2(J p&c 5g3 22 pa(j fa Weljg early days. . This- record seems v M Qg ^ M pa ' c to disclose the fact that there ex- Duckworth ' V- Wats onville Co., 158 isted in the 'minds of those who first p , Oflfi 11f . p Q97 -1-11 j "11 /"I 1 J* il * 'di. UVUfl -L J-U -L ttL., tf&lm went upon Flatwillow Creek for the ' purpose of locating, a sort of general 7 D e Necochea v. Curtis, 80 Cal. plan to take up large areas of the 397, 20 Pac. 563, 22 Pac. 198; Wells public lands, together with the water v. Mantes, 99 Cal. 583, 34 Pac. 324; necessary to irrigate the ground, so Pomeroy on Riparian Rights, sec. 96 ; that they might afterward dispose ot Blanchard and Weeks on Mining the same to the larger landowners. Claims and Water Rights, p. 696; Almost every person whose name is Kmney on Irrigation, sec. 351. mentioned in the testimony located a 8 Cal. Civ. Code, 1415. claim and took out a ditch." Wright 9 De Necochea v. Curtis, 80 Cal. v. Cruse, 37 Mont. 177, 95 Pac. 370. 397, at 406, 20 Pac. 563, 22 Pac. 4 Conger v. Weaver. 6 Cal. 548, 198; Norman v. Corbley, 32 Mont. 65 Am. Dec. 528, 1 Morr. Min. Rep. 195, 79 Pac. 1059. 400 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 370 quently, did it have to express the present required details. Acts such as would put a man on inquiry some unequivocal outward acts, such as making a preliminary survey were notice enough. 10 It became customary, however, to post a written notice, even before the code. 11 The other point" was where the code specifies that work must be begun within sixty days after posting a notice, 12 whereas before the code it was a question to be decided by the jury whether the delay was unreasonable, and no number of days was fixed. 13 The time for commencing in the absence of statute is any reasonable time. 14 (3d ed.) 370. Essential Requisites. There are four requisites in all that must be complied with, to secure the benefit of the doctrine of relation under the California method and the statutes of other States based thereon, viz.: First, a notice must be posted at the start; second, there must be an intention to apply the water to a beneficial purpose; third, the work must be prosecuted with diligence; fourth, it must be actually completed. We proceed to consider each of these separately. 15 10 Parke v. Kilham, 8 Cal. 77, 68 mons v. Winters, 21 Or. 35, 28 Am. Am. Dec. 310, 4 Morr. Min. Rep. 522; St. Rep. 727, 27 Pac. 7; Hindman v. Kimball v. Gearhart, 12 Cal. 27, 1 Rizor, 21 Or. 112, 27 Pac. 13; Low Morr. Min. Rep. 615. v. Rizor, 25 Or. 551, 37 Pac. 82; 11 See Weaver v. Eureka etc. Co., Nevada etc. Co. v. Bennett, 30 Or. 15 Cal. 271, 1 Morr. Min. Rep. 642; 59, 60 Am. St. Rep. 777, 45 Pac. and statement of reporter, in Titeomb 472. Another summing up of the v. Kirk, 51 Cal. 288, 5 Morr. Min. rules is as follows: "It seems the Rep. 10. settled law in the States where irri- 12 Cal. Civ. Code, 1419. gation problems have been dealt with 13 Infra, sec. 382 et seq. that, in order to acquire a vested right 14 Cruse v. McCauley (Mont.), y6 in the use of water for such purposes Fed. 369. from the public streams, three things is In Oregon the requisites are must concur : There must be the eon- summed up: "The rule is settled in struction of .ditches or channels for this state that to constitute a valid carrying the water; the water must appropriation of water there must be be diverted into the artificial chan- (1) an intent to apply it to some nels, and carried through them to the beneficial use, existing at the time place to be used; and it must be or contemplated in the future; (2) a actually applied to beneficial uses, and diversion thereof from a natural he flas the best right who is first in stream; and ^3) an application of it time." Gates v. Settlers Co., 19 Okl. within a reasonable time to some 83, 91 Pac. 856. useful industry." Beers v. Sharpe, As to actual application to use as 44 Or. 386, 75 Pae. 717, citing Sim- an element, see infra, sec. 495. C71 .;; Ch.17, HOW APPROPRIATION IS MADE. (3ded.) 401 C. NOTICE. (3d ed.) 371. Form of Notice. In the California Civil Code, 16 it is provided that a notice must be posted at the point of intended diversion, stating the amount and purpose and place and means of use, and be recorded within ten days. Section 1415 is as follows : "NOTICE OP 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 pres- sure; "2. The purposes for which he claims it, and the place of in- tended 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 intended diver- sion or the place of intended use or the means by which it is intended to divert the water, may be changed by the person post- ing said notice or his assigns if others are not injured by such change. This provision applies to notices already filed as well as to notices hereafter filed.". 17 16 Sections 1415, 1421. for which said water is claimed, and " En. March 21, 1872; Amd. 1903, the place of intended use; 3. The 361. A form of notice under this name of the stream, creek, spring, section that has been upheld by de- canyon, river or ravine; 4. The name cision is given in the part of this of the appropriator or appropriators ; book containing forms. Infra, sec. 5. The date of posting said notice." 1460. In Washington the statute is al- In Montana (Statutes of 1907, most identical with the California chapter 185, page 489) the statute section (See infra, sec. 741), and also provides: Sec. 4. "Any person de- provides: "A copy of the notice must, siring to appropriate water in any within ten (10) days after it is etream, creek, canyon, river or ravine, posted, be filed for record in the office wherein the rights of water therein of the county auditor of the county in have been adjudicated and decreed, which it is posted." Pierce's Code, shall post a notice in writing in a sec. 5132. conspicuous place at the point of the In Alaska, an act of Congress intended diversion, stating therein: (Alaska Act June 6, 1900, 31 Stats. 1. The flow claimed, expressed in at Large, 321, sec. 15) provides for cubic feet per second ; 2. The purpose the record of "waters and declara- Water Bights 26 402 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 372 (3d ed.) 372. Contents and Recording of Notice. What constitutes an inch of water varies in different localities. 18 The statement of a definite place of use is sufficient as to that place, though joined with an indefinite statement of intent to sell water to others for use on land not specified ; 19 and a state- ment that the means used shall be "by a six-inch pipe or by a pipe of other dimensions" is sufficient to cover a diversion of so much as a six-inch pipe would carry, within the number of inches stated in the notice. 20 Where identical notices are posted for different diversions, only one copy needs to be recorded. 21 Where two notices are posted two hundred feet apart, they are substantially both in the same place. 22 The notice is not ^ expressly required by statute to be verified, and acknowledgment has been held unnecessary, and is omitted in practice. 24 It has recently been held that the notice of appro- priation need not be acknowledged before recording it or at all. 25 The notice of appropriation is in this respect similar to location notices of mining claims on public land, which, also, do not require acknowledgment before recording. 1 The notice may be posted in a forest reserve, if the Federal requirements concerning appropriations in forest reserves are also complied with. 2 (3d ed.) 373. Purpose of the Notice. The notice is chiefly to fix the date at which the appropriator's title, on completion, shall accrue tions of water-rights," but leaving vitiates it. Duckworth v. Watsonvme their form and effect to local mining Co., 158 Cal. 206, 110 Pac. 927. district rules, and these local rules 22 Beckwith v. Sheldon (1908), 154 usually copy the California Civil QJ 393^ 97 p ac 867 Code sections. 23 Under Cal Ci Co(J ge(J 141g 18 See infra, sec. 486. The statute of 1901, page 600, in California re- 24 Another section (Cal. Civ. Code, quires measurement, in effect, under H61) requiring acknowledgment of a six-inch pressure. Quoted infra, a11 documents offered for record has sec 486. Civil Code, 1415, supra, n application. Whether this applied says four-inch pressure. to . * ? otic e of appropriation was 19 Duckworth v. Watsonville etc. ^ised in the briefs of Mr. Hall Mc- Co 150 Cal. 520, 89 Pac. 338; Same Alhster in Lux v. Haggm, but was v. Same, 158 Cal. 206, 110 Pac. 927. not touched upon m the decision be- 20 Ibid. As to contents of the no- cause the appropriation was held m- tice, see, further, Floyd v. Boulder valid on more substantial grounds, etc. Co., 11 Mont. 435, 28 Pac. 450. 25 De Wolfskill v. Smith, 5 Cal. 21 De Wolfskill v. Smith, 5 Cal. App. 175, 89 Pac. 1001. App. 175, 89 Pac. 1001. 1 Cal. Civ. Code, sec. 1159. Quaere, whether nonrecording or 2 32 Land Dee. 145. See infra, sec. varying from the recorded notice 430 et seq. 374 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 403 by relation, 3 or, as it is said, the right on completion relates back to the posting of the notice. 4 All who date their claim later than that must relinquish their claim so far as inconsistent therewith, whether the later comer is himself an appropriator 5 or a riparian owner settling on public land subsequent to the post- ing of the appropriation notice. 6 The other purpose of the notice is to set a limit upon the extent of the water-right claimed, 7 and to preserve evidence thereof by having it recorded. 8 How far an appropriator is bound by the declaration in his notice as to amount, purpose, means or place of use will be a matter for consideration later. It may be said here that the appropriator is not bound by his notice to a preliminary base line for ditches or flumes, but may later, in the course of con- struction, within a reasonable time, change his surveyed line, as necessity points out, without having to start and post a notice all over again. 9 The notice is to be liberally construed. 10 (3d ed.) 374. The Notice Operates as a Warning. The notice does not withdraw the water then and there from use by others entirely as a notice of discovery withdraws mining ground, but it warns others that later on, when you have completed your works, you will have the right to so much water. 11 It has been held that, in the meantime, anyone else can temporarily use the water, and you will have no action against him unless he inter- feres with your construction work or continues to use the water after you have actually completed your works. Until that time you have no action against him for diverting the water. In Nevada Water Co. v. Kidd, 12 the court says: "In view of this principle, suppose by way of illustration that the plaintiff has 3 Wells v. Mantes, 99 Cal. 583, 34 ^ Infra, sec. 474. Pac. 324; Duckworth v. Watsonville 8 Murray v. Tingley, 20 Mont. 260, Co., 158 Cal. 206, 110 Pac. 927. 50 Pac. 724, 19 Morr. Min. Rep. 137. 4 Cal. Civ. Code, 1418; KimbalJ v. Cal. Civ. Code, 1415; Conger v. Gearhart, 12 Cal. 27, 1 Morr. Min. Weaver, 6 Cal. 548, 65 Am. Dec. 528, Rep. 615; Nevada etc. Co. v. Kidd, 37 1 Morr. Min. Rep. 594. Cal. 282; Wells v. Mantes, 99 Cal. 10 Osgood v. "El Dorado etc. Co., 583, 34 Pac. 324. 56 Cal. 571, 5 Morr. Min. Rep. 37. 5 Cal. Civ. Code, 1414, 1418, and n "The title to the water does not cases supra. arise, as we have intimated before, 6 De Necochea v. Curtis, 80 Cal. from the manifestation of a purpose 397, 20 Pac. 563, 22 Pac. 198; to take, but from the effectual prose- Broder v. Natoma Water Co., j.01 U. cution of that purpose." N. C. & S. S. 274, 25 L. Ed. 790; Nevada etc. C. Co. v. Kidd, 37 Cal. 312. Co. v. Kidd, 37 Cal. 282. 12 37 Cal. 282. Italics inserted. 404 (3d ed.) Pt. ILL THE LAW OF PEIOE APPEOPEIATION. 374 located its site for a dam and canal and claimed the waters of the South Yuba River and commenced the construction of the dam and canal, but in consequence of the magnitude of the work, was unable for several years to divert or use the water, and in the meantime the defendants, being men of greater pecuniary ability, should consequently locate another claim above or near the plaintiff's and a canal running parallel with the plaintiff's and be in a condition to divert and use the water in half the time ; their acts, provided there was no interference with plaintiff's site and location, or obstruction to the prosecu- tion of its work, would be no injury to plaintiff or cause of action in its favor. The plaintiff in such case has, as yet, no right to the water so far perfected that a diversion or use by other parties is any interference or injury. But if the plaintiff's work should be prosecuted with diligence and completed, so as to entitle it to divert and use the waters, its right to the waters thenceforth would date by relation from the commencement of the work, and, should defendants thereafter continue to divert the waters and deprive the plaintiff of their use, an injury to their water-rights then vested and perfected would result, and a right of action for the injury to such right accrue." The case so held and has been quoted and affirmed on this point. 13 In the latter case just cited this principle was affirmed by the Federal court, the court saying: "It is obvious that a person who intends to become an appropriator under these sections cannot acquire the exclusive right to the use of the water he intends appropriating, nor maintain any suit, either at law or in equity for its diversion, until all the steps requisite to an appropriation have been made." In Montana, 14 affirming the same point, the court says that the appropriator need take no notice of intervening claimants who make temporary appropria- tions in the meantime. During the prosecution of the construction work the right does exist to use so much of the water as is necessary in the construction work, to keep the ditch or flume, etc., in repair, 15 13 Salt Lake City v. Salt Lake etc. * 4 Woolman v. Garringer, 1 Mont. Co., 24 Utah, 249, 67 Pac. 672, 61 535, 1 Morr Min. Bep. 675 See, T ' a . '. n A , also, Miles v. Butte etc. Co., 32 Mont. L. E. A. 648; Emeon etc. Co. v. Ana- 5g ' 7Q p ae 54g heim etc. Co. (C. C. S. Dist. CaL), 15 Weaver v. Conger, 10 CaL 233, 115 Fed. 543. 6 Morr. Min. Eep. 203. 375 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 405 but that is all. For all purposes except to make the temporary use of the water by others actionable, however, the right to the use of water on completion relates back to the posting of the notice, if the work has been prosec-uted diligently, and dates from the posting of the notice as against those who come later. 10 (3d ed.) 375. Failure to Post Notice. The failure to post a notice, or the posting of a faulty notice, 17 constitutes a waiver of all advantages that such a warning gives. As seen above, it is not fatal if the work is nevertheless completed before others intervene, and the appropriator may claim as an appropriator by actual diversion. 18 As against interveners, however, the failure is fatal. 19 Beginning a ditch without posting notice gives no right against another who does post notice before the completion of the former ditch, and works diligently to his own completion. 20 As between rival claimants, neither of whom has posted a notice, probably the result will be the same, giving the better right to the first who actually diverts and uses the water. 21 It may be, however, that they will be on the same footing as rivals before the code (when written notice was not needed), 22 on the ground that the code provisions were enacted for their benefit, and they, refusing to take advantage of them, waived them. In this view, the better right would, by relation, be in him who began first in a way that gave notice from his acts, provided he prosecuted the work with diligence. 23 The view of the code taken in De Necochea v. Curtis and Wells v. Mantes, 24 however, would lead one to think that no claim to the benefit of the doctrine of relation can be made whatsoever, unless the code provisions are strictly complied with. 25 16 Cal. Civ. Code, 1414, 1418; Rep. 689; Wishon v. Globe etc. Co., Maeris v. Bricknell, 7 Cal. 261, 68 158 Cal. 137, 110 Pac. 290. Am. Dec. 257, 1 Morr. Min. Rep. 601; 22 Supra, sec 369 Nevada etc. Co. v. ,KiM 37 Cal 282; 23 g A g Wells v. Mantes, 99 Cal. 583, 34 Pac. ^ for exam ^ ]e> in Ma / ris v / Brick '. rn i AKU 4 L -mQ P 1 491 Dell > 7 Cal - 261 > 68 Am - DeC - 257 'r * ,7 V ay !n r a V ' ' ' Morr - Min - W 607 > and Kimball v. . ii TUT ao n i *e* Gerhardt, 12 Cal. 27, 1 Morr. Min. 18 Wells v. Mantes, 99 Cal. 583, ,, K , S 34 Pac. 324. 19 Ibid~ and De Wolf skill v. Smith, 24 Supra. 5 Cal. App. 175, 89 Pae. 1001. 25 Such was the .result in the case 20 Ibid. of Murray v. Tingley, 20 Mont. 260, 21 Compare Cordoza v. Calkins, 117 50 Pac. 724, 19 Morr. Min. Rep. 137. Cal. 106, 48 Pac. 1010, 18 Morr. Min. 406 (3d ed.) Pt. III. THE LAW OF PKIOE APPROPRIATION. 376 (3d ed.) 376. Notice Alone not Enough. It need hardly be said that merely posting a notice is not enough unless the other requisites of a bona fide intent, diligence and completion, are also com- plied with. It is well settled that the posting of a notice gives no rights if the other requisites are not complied with. 1 D. BENEFICIAL PURPOSE. (3d ed.) 377. Necessity for Bona Fide Intention. There must be an intention to use the water for a beneficial purpose. This was a requisite from the earliest days, for all appropriations, however l "The right to the water does not exist when the notice is given and it may never vest. The most that is in esse is a right to acquire, by reasonable diligence, a future right to the water." Mitchell v. Canal Co., 75 Cal. 482, 483, 17 Pac. 246. "The amount claimed in the notice is no measure of the right." Duck- worth v. Watsonville etc. Co., 150 Cal. 520, 89 Pac. 338. "Appropriation is a much-abused word. It is often loosely spoken of as the preliminary step such as filing a notice, making a claim to the water, or the like but in its legal signifi- cance it embodies not only the claim to the water, but the consummation of that claim by actual use." Morris v. Bean (Mont.), 146 Fed. 425. "The notice of Laird's claim was of no validity A declaration of a claim to water, unaccompanied by acts of possession, is wholly inop- erative as against those who shall legally proceed to acquire a rig'-it to the same." Columbia Min. v. Holter, 1 Mont. 296, 2 Morr. Min. Rep. 14. "My intention was that, knowing that a good location was wanted for a smelter-sitej to hold it for that purpose." Having from 1889 to 1902 taken no steps beyond posting a no- tice, a nonsuit was granted against him in a suit by him against one who in the meantime had diverted and used the water. Miles v. Butte etc. Co., 32 Mont. 56, 79 Pac. 549. "The filing of the notice of ap- propriation did not alone establish the appropriation nor determine either the time or amount thereof; but the necessity, the actual diversion, and the use were all essential in acquir- ing title to the water by prior appro- priation. If these existed, title to it was acquired without notice; and, if not, the notice could not give title. Notice shows prima facie an inten- tion from the date of its posting to appropriate, and, if followed by dili- gence in the construction of the ditch and diversion of the water, the right will date from the time of giving the notice." Ison v. Sturgill (Or. 1910), 109 Pac. 579. That notice alone is not enough is held in the cases passim, throughout the subject. The following additional specific examples are cited: Thomp- son v. Lee, 8 Cal. 275, 1 Morr. Min. Rep. 610; Weaver v. Eureka Lake Co., 15 Cal. 271, 1 Morr. Min. Rep. 64; Nevada etc. Co. v. Kidd, 37 Cal. 282; Mitchell v. Amador etc. Co., 75 Cal. 464, 17 Pac. 246; Cordoza v. Calkins, 117 Cal. 106, 48 Pac. 1010, 18 Morr. Min. Rep. 689 ; De Wolf skill v. Smith, 5 Cal. App. 175, 89 Pac. 1001 ; Conley v. Dyer, 43 Colo. 22, 95 Pac. 304; Hilger v. . Sieben, 38 Mont. 93. 98 Pac. 881; Smyth v. Neal, 31 Or. '105, 49 Pac. 850; Patterson v. Ryan (Utah), 108 Pac. 1118; Kendall v. Joyce, 48 Wash. 489, 93 Pac. 1091; Miocene D. Co. v. Campion D. M. Co., 3 Alaska, 572 ; Sullivan v. Jones (Ariz.), 108 Pac. 476, O'Reilley v. Noxon (Colo.), 113 Pac. 486. 378 Ch. 17. HOW APPKOPRIATION IS MADE. (3d ed.) 407 made. 2 In one case it is said: "He did not appropriate in a legal sense any water except such as he used beneficially turn- ing more water from a stream than he used was waste, not appropriation." 3 In another case: "If the proposed appro- priator is not able to complete and finally establish his appro- priation by applying the water to, and using it for, the beneficial purpose for which it was proposed to be appropriated, either by himself or through the agency of some user, his appropria- tion fails." 4 In another: "The intention of the claimant is therefore a most important factor in determining the validity of an appropriation of water. ' ' 5 The intention must be bona fide and not for speculation, such as an intention to store water for monopoly, 6 or for irrigation of one's own land when one has no lands to be irrigated, 7 but, as appropriation may be made for use on other lands than one's own, it is not necessary to have any irrigable land when the intention is in good faith to supply water to others. 8 (3d ed.) 378. What Constitutes a Beneficial Purpose. What con- stitutes a beneficial purpose will best be seen from examples. 9 A passive acceptance of water as it flows into one's ditch when another appropriator does not wish to use it is not an appropriation if not taken into the ditch with any intent to a use at all. 10 2 See Pomeroy on Riparian Rights, 5 Power v. Switzer, 21 Mont. 523, sec. 47. Citing Dick v. Caldwell, 14 55 Pac. 32. Nev. 167; Dick v. Bird, 14 Nev. 161; 6 Weaver T. Eureka Co., 15 Cal. Crane v. Winsor, 2 Utah, 248, 11 Morr. 271, 1 Morr. Min. Rep. 642. But it Min. Rep. 69 ; Munroe v. Ivie, 2 Utah, has been held that an allegation in a 535, 8 Morr. Min. Rep. 127 ; Woolman complaint that defendant's claim was v. Garringer, 1 Mont. 535, 11 Morr. for speculative purposes is a conclu- Min. Rep. 675 ; Cal. Civ. Code, sec. sion of law, and insufficient pleading 1411. without a statement of the evidence See, also, North Am. Co. v. Adams to sustain it. Sternberger v. Seaton (Colo.), 104 Fed. 404, 45 C. C. A. etc. Co. (1909), 45 Colo. 401, 102 Pac. 185, 21 Morr. Min. Rep. 65; Nevada 168, sed qu. D. Co. v. Bennett, 30 Or. 59, 60 Am. ? Miles v. Butte etc. Co., 32 Mont. St. Rep. 777, 45 Pac. 472 ; Smith v. 56, 79 Pac. 549. Duff, 39 Mont. 382, 133 Am. St. Rep. 8 Hough v. Porter, 51 Or. 318, 95 587, 102 Pac. 984; Snyder v. Colo- Pac. 732, 98 Pac. 1083, 102 Pac. 728. rado etc. Co. (Colo. C. C. A.), 181 Cf. supra, sec. 281 and infra, sec. 395. Fed. 62 ; Cascade Co. v. Empire Co. 9 For an interesting discussion of (Colo.). 181 Fed. 1011. the point, see Cascade Co. v. Empire ^ n n IA TVT i7 Co - (Colo.), 181 Fed. 1011. 3 Dick v. Caldwell, 14 Nev. 167. 10 Smith Co. v. Colorado etc. Co, 4 Sowards v. Meagher (Utah, 1910), 34 Colo. 485, 82 Pac. 940, 3 L. R. A., 108 Pac. 1113. N. S., 1148. 408 (3d ed.) Pt. in. THE LAW OF PKIOR APPKOPEIATION. 378 A ditch for drainage does not appropriate the water in it, because of the absence of intent to use the water. 11 Where water draining from a tunnel finds its way to a stream, the tunnel owner cannot claim as an appropriator the right to reclaim the water from another part of the stream. 12 Where water drains from an abandoned well drilled for oil, the driller of the well is not an appropriator of the water, from lack of intent to use the water at the time the well was abandoned. 13 But the drainage may be only incidental to a beneficial use, or there may be a dual intent. "There was some testimony indicating a dual intent on the part of Duncan that is, a pur- pose not only to get water to irrigate his land, as stated, but also to draw off the flood water from, and prevent it flowing to, some other land owned by him on which he then had grow- ing a crop of grain. This purpose to drain one tract of land did not vitiate or destroy the right to take the water for irri- gation of other tracts, nor impair the right, acquired by such appropriation and use, to take and use it for the latter purpose. The two purposes are not inconsistent." 14 When making no application of water, quaere whether flowing it through a ditch to flush it and keep it open is beneficial use. 15 Irrigation is a useful purpose, and water may, of course, be appropriated for irrigation. 16 What is contemplated by the term 11 Eddy v. Simpson, 3 Cal. 249, 58 Semi- Tropic Co., 64 Cal. 185, 30 Pac. Am. Dec. 408, 15 Morr. Min. Rep. 623; Lux v. Haggin, 69 Cal. 255, 10 175; Maoris v. Bicknell, 7 Cal. 261, Pac. 674; Yunker v. Nichols, 1 Colo. 68 Am. Dec. 257, 1 Morr. Min. Kep. 551, 8 Morr. Min. Rep. 64; Schilling 601. v. Rominger, 4 Colo. 100; Sieber v. 12 Farmers' etc. Co. v. Rio Grande Frink, 7 Colo. 148, 2 Pac. 901; Lari- etc. Co., 37 Colo. 512, 86 Pac. 1042; mer Co. Res. Co. v. People, 8 Colo. supra, see. 38 et seq., "Recapture." 614, 9 Pac. 794; Platte Water Co. 13 De Wolfskill v. Smith, 5 Cal. v. Northern Colo. Irr. Co., 12 Colo. App. 175, 89 Pae. 1001. 525, 21 Pac. 711 ; Farmers' etc. Co. v. 14 Lower Tule etc. Co. v. Angiola Southworth, 13 Colo. Ill, 21 Pac. etc. Co., 149 Cal. 496, 86 Pac. 1081. 1028, 4 L. R. A. 767 ; Geertson v. Bar- 15 Mann v. Parker, 48 Or. 321, 86 rack, 3 Idaho, 344, 29 Pac. 42; Kirk Pac. 598. Cf. Weaver v. Conger, 10 v. Bartholomew, 3 Idaho, 367, 29 Pac. Cal. 233, 6 Morr. Min. Rep. 203. 40; Pyke v. Burnside, 8 Idaho, 487, Regarding appropriations in Wyo- 69 Pac. 477; Thorp v. Freed, 1 Mont, ming for floating logs, see Wyo. Stats. 651; Murray v. Tingley, 20 Mont. 1903, c. 16, sec. 1. 260, 50 Pac. 723; Sayre v. Johnson, 16 Basey v. Gallagher, 87 U. S. 33 Mont. 15, 81 Pac. 389; Barnes v. 670, 22 L. Ed. 452, 1 Morr. Min. Rep. Sabron, 10 Nev. 231, 4 Morr. Min. 683; Rupley v. Welch, 23 Cal. 453, Rep. 673; Dick v. Bird, 14 Nev. 161; 4 Morr. Min. Rep. 243 (approved in Dick v. Caldwell, 14 Nev. 167; Nevada Natoma etc. v. Hancock, 101 Cal. 42, etc. Co. v. Bennett, 30 Or. 59, 60 Am. 31 Pac. 112, 35 Pac. 334); Cave v. St. Rep. 777. 45 Pac. 472; Brown v. Crafts, 53 Cal. 135; Anaheim etc. v. Baker, 39 Or. 66, 65 Pac. 799, 66 378 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 409 "irrigation" appears from the following: Water increasing the growth of grass for pasturage is a beneficial purpose if turned on the land with that intent ; 17 and the water thus used may be claimed in addition to that used for crops and grain ; 18 but it is otherwise where the increase in growth of hay was merely inci- dental, and irrigation had not been intended, 19 or where there was but a purposeless flooding of land. 20 Cutting wild grass pro- duced by the overflow of a river, that is, by the water of a river coming down and spreading over the land, is not an appropria- tion of that water within the meaning of that term. 21 Culinary use and watering horse by a settler, being intended permanent, is a beneficial use, but use by driving sheep or cattle to a spring sporadically and intermittently is not an appropria- tion, being too uncertain, and not intended as an appropriation. 22 Appropriations may be made for domestic use. 23 The following is an extreme case: "The ground assumed is that the diversion of water for the mere temporary purpose of strand- ing fish is not converting it to a useful or profitable purpose, and therefore the party thus diverting it acquires no rights. Had the water been diverted by the Indians for the mere purpose of catch- ing fish upon one occasion, this position might have been right. But, as I understand the testimony, it was a permanent diversion of the water, so as to run it over flat meadows, thus enabling the Indians at any time to catch fish among the grass of the meadow- land, which they could not catch while the waters were confined in a narrow channel. I cannot see but that it is just as legitimate for an Indian to turn water over meadow-land to enable him to Pac. 193 ; Lone Tree Co. v. Eapid City 21 Walsh v. Wallace, 26 Nev. 299, Co., 16 S. D. 451, 93 N. W. 650; 99 Am. St. Rep. 692, 67 Pac. 914. Crane v. Winsor, 2 Utah, 248, 11 22 Patterson v. Eyan (Utah, 1910), Morr. Min. Rep. 69; Munroe v. Ivie, 108 Pae. 1118. 2 Utah, 535, 8 Morr. Min. Rep. 127; 23 As defined in Idaho (McLean's Hough v. Porter, 51 Or. 318, 95 Pac. Rev. Codes, sec. 3250) : "The phrase 732, 98 Pac. 1083, 102 Pac. 728. 'domestic purposes' as contained in n Sayre v. Johnson, 33 Mont. 15, this title shall be construed to in- 81 Pac. 389; Smyth v. Neal, 31 Or. elude water for the household, and a 105, 109, 49 Pac. 850; Kleinschmidt sufficient amount for the use of do- v. Gneiser, 14 Mont. 484, 497, 43 Am. mestic animals kept with and for the St. Rep. 652, 37 Pac. 5, 6; Rodgers use of the household." See infra, sec. v. Pitt, 129 Fed. 932. Or the growth 740, for definition of "domestic use." of hay. Pyke v. Burnside, 8 Idaho, Regarding stock-watering purposes, 487, 69 Pac. 477. there is a Federal statute granting 18 Rodgers v. Pitt, 129 Fed. 932. lands for reservoir purposes upon fil- 19 Power v. Switzer, 21 Mont. 523, ing maps with the Secretary of the 55 Pac. 32. Interior. A. C. Jan. 13, 1897, 29 20 Millheiser V. Long, 10 N. M. Stats, at Large, 484. See infra, sec. 99, 61 Pac. 111. 433. 410 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 378 catch fish for his subsistence as for a white man to turn it over the same land to increase the growth of grass. " 24 It has, however, more lately been held that water may not be appropriated to fill a series of small reservoirs or lakes in which to propagate fish. 25 Another extreme holding is that building a summer hotel is an appropriation of a near-by waterfall which lends beauty to the resort. 1 Storage as an aid to irrigation or other use (as opposed to specu- lation) is a useful purpose, and water may be appropriated for storage. 2 Articles of incorporation to divert water do not include building of reservoirs to store it. 3 Mining and power are useful purposes for which appropriation may be made. 4 Prospecting a placer claim, though it yields no profit, is a beneficial use. 5 Sale or public supply likewise. 6 The original case of Irwin v. Phillips 7 was such a case. Manufacture and generation of light, heat, power or electricity is beneficial use, for which an appropriation can be made. 8 But mere speculation is not allowed; e. g., a reservoir built to hold water indefinitely, without any definite use in mind, 9 or for 24 Lobdell v. Hall, 3 Nev. 507. 25 Windsor Res. Co. v. Lake Sup- ply Co., 44 Colo. 214, 98 Pac. 729. 1 Cascade Co. v. Empire Co. (Colo.), 181 Fed. 1011. 2 Water Supply Co. v. Larimer Irr. Co., 24 Colo. 322, 51 Pae. 496, 46 L. R. A. 322; Cache La Poudre Co. v. Windsor Co., 25 Colo. 53, 52 Pac. 1104; Windsor Res. Co. v. Lake Sup- ply Co., 44 Colo. 214, 98 Pae. 729. See 17 L. R. A., N. S., 329, note. 3 Seeley v. Hunting etc. Assn., 27 Utah, 179, 75 Pac. 367. 4 Irwin v. Phillips, 5 Gal. 140, 63 Am. Dec. 113, 15 Morr. Min. Rep. 178; McDonald v. Bear River Co., 13 Cal. 220, 1 Morr. Min. Rep. 626, 15 Cal. 145, 1 Morr. Min. Rep. 639; Platte Water Co. v. Northern Colo. Irr. Co., 12 Colo. 525, 21 Pac. 711; Woolman v. Garringer, 1 Mont. 535, 1 Morr. Min. Rep. 675. 5 Madigan v. Kpugarok M. Co., 3 Alaska, 63. 6 Wilterding v. Green, 4 Idaho, 773, 45 Pac. 134; Albuquerque etc. Co. v. Guitterez, 10 N. M. 177, 61 Pac. 357 ; Gutierres v. Albuquerque etc. Co., 188 U. S. 545, 23 Sup. Ct. Rep. 338, 47 L. Ed. 588; Salt Lake City v. Salt Lake etc. Co., 24 Utah, 249, 67 Pac. 672, 61 L. R. A. 648; Platte Water Co. v. Northern Colo. Irr. Co., 12 Colo. 525, 21 Pac. 711; Lone Tree D. Co. v. Rapid City etc. Co., 16 S. D. 451, 93 N. W. 650; Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 Pac. 313; Yuba Co. v. Cloke, 79 Cal. 239, 21Pac. 740; Senior v. Anderson, 130 Cal. 290, at 297, 62 Pac. 563; Souther v. San Diego etc., 112 Fed. 228; Cal. Const., art. 14, sec. 1. See note in 60 Am. St. Rep. 804, 816. Regarding public service, see infra, sec. 1245 et seq. 7 5 Cal. 140, 63 Am. Dec. 113, 15 Morr. Min. Rep. 178. 8 Speer v. Stephenson (1909), 16 Idaho, 707, 102 Pac. 365; Sternberger v. Sea ton etc. Co. (1909), 45 Colo. 401, 102 Pac. 168; Thompson v. Pen- nebaker (Wash.), 173 Fed. 849, 97 C. C. A. 591; Cascade Co. v. Empire Co. (Colo.), 181 Fed. 1011; Neb. Stats. 1893, c. 40, p. 378, Cobbey's Ann. Stats., sec. 6754. But see Shodde v. Twin Falls Co., supra, sec. 313. 9 Weaver v. Eureka etc. Co., 15 Cal. 271, 1 Morr. Min. Rep. 642; Miocene D. Co. v. Campion M. Co., 3 Alaska, 572. 379 Ch. 17. HOW APPROPRIATION IS MADE. (3ded.) 411 monopoly. 10 An appropriation can be made for a purpose con- templated in the future, such as the irrigation of land to be later acquired, if there will be no> unreasonable delay, and speculation is not intended. 11 Regarding appropriations for storage under Colorado statutes, the Colorado constitution allows an appropriation either by means of a ditch or canal for immediate irrigation, or by a reservoir for storage of whatever flow is diverted or stored for future beneficial use, but an appropriation for storage includes only one filling of the reservoir each season unless expressly intended and initiated for several fillings. In the absence of an express appro- priation for more than one filling, only a priority for . a single filling can be awarded to such appropriation ; and a subsequent appropriator may build another reservoir to store the surplus over the one filling of the prior reservoir. 12 That all pursuits are on an equal footing, whether miners, agriculturists, manufacturers, or other occupations, is a matter previously set forth. The law here again follows out the idea of "free development" upon which it is founded. The follow- ing passage from Basey v. Gallagher 13 is frequently quoted: "Water is diverted to propel machinery in flourmills, and saw- mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims, and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced." An appropriation may be made for any beneficial purpose. 14 (3d ed.) 379. Motive. Malice and ill-will toward another do not enter into the question. 15 It is usually said that an act other- wise lawful does not become unlawful merely through a malicious motive to injure another. The question is more or less an open one, however, under the new decisions concerning underground water and in that connection will be discussed later. 10 Revenue etc. Co. v. Balderston, 14 Thompson v. Pennebaker (Wash.), 2 Alaska, 363. 173 Fed. 849, 97 C. C. A. 591; Silver 11 Sowards v. Meagher (Utah, Peak Mines v. Valcalda, 79 Fed. 886. 1910), 108 Pac. 1113. See infra, sec. 15 Correa v. Frietas, 42 Cal. 339, 2 483, future needs. Morr. Min. Rep. 336;- Stone v. Bum- fa Windsor Res. Co. v. Lake Supply pus, 46 Cal. 218, 4 Morr. Min. Rep. Co., 44 Colo. 214, 98 Pac. 729. 278; Fisher v. Feige, 137 Cal. 39, 92 13 87 U. S. 670, 22 L. Ed. 452, 1 Am. St. Rep. 77, 69 Pac. 618, 59 L. Morr. Min. Rep. 683 (per Justice R. A. 333. Stephen Field). 412 (3d ed.) Pt. in. THE LAW OF PRIOR APPROPRIATION. 382 (3d ed.) 380. Evidence of Intention. How is the intention shown? First, of course, from the notice; but it may be drawn also from the appropriator's acts, the manner in which they work, the gen- eral size of the ditch, etc. 16 They aid in interpreting the notice. "But as every appropriation must be for a beneficial or useful purpose, it becomes the duty of the courts to try the ques- tion of the claimant's intent by his acts, and the circumstances surrounding his possession of the water, its actual or contemplated use, and the purpose thereof." 17 Where the appropriation is by actual diversion without notice, such evidence of surrounding circumstances is the sole evidence of the intent that is possible. 18 (3d ed.) 381. Intention Alone not Enough. It need hardly be repeated that the intent alone by itself, is not enough; the other requisites we are considering must also be complied with. 19 A design two years before to appropriate a certain creek as a con- necting link in a long canal was held 20 not to prevent another man from coming in the meantime and building a dam. In extensive operations of this kind, involving several streams, each, it appears, must be separately appropriated. The same has been held of the intention to build a reservoir in a river-bed. 21 E. DILIGENCE. (3d ed.) 382. Necessity for Diligence. There must be diligence in prosecuting the construction work. This was a requisite from the earliest days for all appropriators claiming the benefit of the doctrine of relation, and remains to the present day wherever the law of appropriation is in force. 22 36 White v. Todd's etc. Co., 8. Cal. of the ditch proprietors upon which 443, 68 Am. Dec. 338, 4 Morr. Min. it could reasonably be supposed that Rep. 536. they intended to apply it." Taugh- 17 Toohey v. Campbell, 24 Mont. 13, enbaugh v. Clark, 6 Colo. App. 235, 60 Pac. 396. 40 Pac. 153. 18 "Such intention, unless estab- 19 Ortman v. Dixon, 13 Cal. 33. lished by notice, or in some other 20 Kelly v. Natoma etc. Co., 6 Cal. public manner, could in no way be 105, 1 Morr. Min. Eep. 592. known to or control others wishing to 21 New Loveland etc. Co. v. Con- take water from the same stream, and solidated etc. Co., 27 Colo. 526, 62 such intention could only be inferred Pac. 366, 52 L. R. A. 26S. or deduced, first, from the capacity of 22 Cal. Civ. Code, sec. 1416, and the ditch at its head, and perhaps, cases herein cited below. Also High- second, the amount of irrigable land land D. Co. v. Mumford, 5 Colo. 325, 383 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 413 (3d ed.) 383. What Constitutes Diligence. The California code has specified that the work must commence within sixty days after posting of notice, and must continue thence diligently and uninterruptedly unless prevented by rain or snow. 23 Upon the point of delay because of pecuniary inability the decisions seem to conflict. In California, 24 Nevada 25 and Ore- 2 Morr. Min. Rep. 3; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901; Farmers' Highline C. & Res. Co. v. Southworth, 13 Colo. Ill, 21 Pac. 1028, 4 L. R. A. 767; Colo. Land & W. Co. v. Rocky Ford C. R. L, L. & T. Co., 3 Colo. App. 545, 34 Pac. 580; Beaver Brook Res. & C. Co. v. St. Vrain Res. & Fish Co., 6 Colo. App. 130, 40 Pac. 1066; Taughenbaugh v. Clark, 6 Colo. App. 235, 40 Pac. 153; 3 M. A. S., 1905 ed., 2265f; Gates v. Settlers' Co., 19 Okl. 83, 91 Pac. 856; Rodgers v. Pitt, 129 Fed. 932; Kelly v. Hynes (Mont.), 108 Pac. 785; Avery v. John- son (Wash.), 109 Pac. 1028. See the California Statute of 1911, chapter 406, section 4, reading: ''All water or the use of water which has been heretofore appropriated and which has not been put, or which has ceased to be put to some useful or bene- ficial purpose, or which is not now in process of being put to some useful or beneficial purpose with due diligence in proportion to the magnitude of the work necessary properly to utilize for the purpose of such appropriation such water or such use of water, is hereby declared to be unappropriated." After reviewing certain authorities, an early case says: "The principles established in the cases cited are founded in reason. The doctrine is that no man shall act upon the prin- ciple of the dog in the manger, by claiming water by certain preliminary acts, and from that moment prevent others from enjoying that which he is himself unable or unwilling to enjoy, and thereby prevent the development of the resources of the country by others. Anybody else may divert and use all the water, be it more or less, that a prior claimant is not in a present condition to use, and by lack of diligence on his part in pursuing and perfecting a prior inchoate right, may acquire rights even superior to his." Nevada C. & S. C..Co. v. Kidd, 37 Cal. 282, at 314. 23 Civ. Code, sec. 1416. As amended in 1911 (Stats., c. 730), it further pro- vides that the sixty days, on mining debris projects, shall run only from completion of the dam required by the Debris Commission; and on muni- cipal water projects, issuance of bonds within sixty days shall be equiv- alent to beginning work. Quoted in- fra, sec. 1432. See, also, the 1911 Water Power Act of California, in the next chapter, section 422. In Kansas (Gen. Stats. 1901, sec. 3501 et seq.) work must commence within sixty days and be prosecuted diligently. In Montana (Stats. 1907, p. 489) : "The work in the construction and completion of the means of divert- ing and conveying water to place of use, shall be prosecuted with reason- able diligence, otherwise no rights shall be acquired by such appropri- ator." In Oregon, for power appropria- tions, it is provided that, in deciding the question of diligence there shall be considered "the cost of the ap- propriation and application of such water to a beneficial purpose, the good faith of the appropriator, the market for water or power to be supplied, the present demands therefor, and the income or use that may be required to provide fair and reasonable returns upon the investment." Or. Stats. 1909, c. 216, sec. 70, subd. 6. In Washington (Pierce's Code 1905, see. 5133), purpose being storage, work must be commenced within three months after posting notice of appro- priation; if diversion, six months. Must be diligently prosecuted. 24 Nevada etc. Co. v. Kidd, 37 Cal. 282; Kimball v. Gearhart, 12 Cal. 27, 1 Morr. Min. Rep. 615. 25 Ophir etc. Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550, 4 Morr. Min. Rep. 640. 414 (3d ed.) Pt. HI. THE LAW OF PRIOR APPROPRIATION. 383 gon l lack of funds will not excuse delay ; but it seems other- wise in Colorado 2 and Idaho. 3 In these latter cases the courts lay stress upon the fact that the public lands have usually been taken up by poor men. In the Colorado case it is said: "Men of limited means, pioneers in a new territory, who have not only to 'grub' and clear land, but erect houses and provide means of living while making a home, should not be held to the same rule with those more favored and having abundant capital. As long as the settler in the desert does not abandon, but continues in good faith to prosecute his construction of a ditch and the application of water to his land as rapidly as his means will permit, he should be held to be within the limit of ' a reasonable time. ' ' ' Interruptions by sickness are not an excuse for delay. 4 If a ditch breaks before the water reaches the land intended to be irrigated by it, the delay is not necessarily lack of diligence; it is open to explanation. 5 The fact that another began later than you and finished sooner is evidence of lack of diligence on your part, 6 but is not conclusive. 7 What constitutes diligence must be determined on the facts of each case. It is a question of fact for the jury. 8 In an early case 9 the court says that the following statements, among others, are an accurate statement of the law: "In appropriating unclaimed water on public lands only such acts are necessary, and only such 1 Cole v. Logan, 24 Or. 304, 33 ley v. Dyer, 43 Colo. 22, 95 Pac. 304; Pac. 568. McFarland v. Alaska etc. Co., 3 2 Taughenbaugh v. Clark, 6 Colo. Alaska, 308. App. 235, 40 Pac. 153. "What shall constitute such reason- 3 Hall v. Blackman, 8 Idaho, 272, a fci e t j me is a q ues tion of fact de- 68 Pac. 19; Conant v. Jones, 3 Idaho, pending upon the circumstances con- 606, 32 Pac. 250. See, however, nected with each particular case." United States v. Whitney (Idaho), 176 Sieber v. Frink, 7 Colo. 148, 2 Pac. Fed. 593, difficulty of financing a 991, large project no excuse , Ag t what constitutes rea sonable , tr \ w 'M 1 t ' diligence must be governed by the cir- 1 Morr Mm Rep 615; Nevada etc. cun f stances of ea * h artici j ar case> Co. v Kidd, 37 Cal 282; Mitchell v. and necessari] Tarieg i ^ th each ar .' Amador Canal etc. Co, 75 Cal. 464, ticu]ar ^ ^ . g & question Qf _ w%, TT- iiT n i and must be determined from all the 9o Ta dl V ' K re y enha g en > 117 CaL evidence in the case." Gates v. Set- 'XT i aC ' * n VAA a? Pol tlers ' c ; 19 Okl - 83 > 91 Pac. 856. Nevada etc. Co. v. Kidd, 37 Cal. 2g2 Evidence of diligence considered. 7 - De Necochea v. Curtis, 80 Cal. Thorndyke v Alaska etc Co. (C. C 397, 20 Pac. 563, 22 Pac. 198; Wells A., Alaska, 1908), 164 Fed. 657, 90 v. K^enhagen, 117 Cal. 3 29 , 49 Pa, ^fi^***}""^ f 8 Weaver v. Eureka etc. Co., 15 9 Kimball v. Gearhart, 12 Cal. 27, Cal. 271, 1 Morr. Min. Rep. 642 ; Con- 1 Morr. Min. Rep. 615. 383 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 415 indications and evidences of appropriation are required as the nature of the case and the face of the country will admit of and are under the circumstances and at the time practicable; and surveys, notice, stakes and blazing of trees, followed by work and actual labor without any abandonment, will in every case where the work is completed, give title to water over subsequent claim- ants." "In determining the question of the plaintiffs' diligence in the construction of their ditch, the jury have a right to take into consideration the circumstances surrounding them at the date of their alleged appropriation, such as the nature and climate of the country traversed by said ditch, together with all the diffi- culties of procuring labor and materials necessary in such cases." Diligence does not require unusual or extraordinary efforts, but only such constancy and steadiness of purpose or of labor as is usual with men engaged in like enterprises. Matters incident to the person and not to the enterprise are not such circumstances as will excuse great delay in the work. 10 In one case, for two years work was done on the ditch for three months only, and the court said: "Diligence is defined to be the 'steady application to busi- ness of any kind, constant effort to accomplish any undertaking.' The law does not require any unusual or extraordinary effort, but only that which is usual, ordinary, and reasonable. The diligence required in cases of this kind is that constancy and steadiness of purpose or labor which is usual with men engaged in like enter- prises, a v nd who desire a speedy accomplishment of their designs. Such assiduity in the prosecution of the enterprise as will mani- fest to the world a bona fide intention to complete it within a reasonable time. It is the doing of an act, or series of acts, with all practical expedition, with no delay, except such as may be. incident to the work Rose during this time may have dreamed of his canal completed, seen it with his mind's eye yield- ing him a great revenue ; he may have indulged the hope of provi- dential interference in his favor, but this cannot be called a diligent prosecution of his enterprise." 11 On the facts involved, there was held to be diligence in the con- struction work in the following cases: Where the time elapsed 10 Ophir etc. Co. v. Carpenter, 4 n Ophir etc. Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550, 4 Morr. Nev. 534, 97 Am. Dec. 550, 4 Morr. Min. Rep. 640. See, also, Oviatt v. Min. Rep. 640. Big Four etc. Co., 39 Or. 118, 65 Pae. 811. 416 (3d ed.) Pt. III. THE LAW OF PEIOE APPEOPKIATION. 384 was from December to February, during which a survey (but nothing more) had been made. 12 Where three years had been consumed by a colonization company not desiring to complete the work before securing settlers. 13 Where one year elapsed. 14 On the other hand, it was held not diligence where two years and six months had elapsed with little done on the facts pre- sented, 15 and a sale was held to pass nothing. 16 Concerning diligence in applying the water to use after com- pleting construction work, reference is made to a later chapter. 17 (3d ed.) 384. Delay During Legal Proceedings. The California legis- lature in 1907 enacted 18 in a somewhat ambiguous amendment to the code that if the proposed appropriation will conflict with existing rights, the appropriator must within sixty days after posting notice, bring suit to have those rights settled, or to con- demn them under the power of eminent domain, and that he shall have sixty days after final judgment in which to proceed with the construction work. A somewhat similar provision appears in the Montana act of the same year. 19 This new California provision was probably intended to favor new appropriators in case of delay due to* litigation; but it would probably hinder them by forcing such litigation upon them whenever a possible conflict ap- pears. The Montana act seems aimed expressly at the latter result, rather than the former; that is, to favor existing owners by making new appropriations more difficult, rather than to favor new appropriators by an extension of time. In 1911 the Cali- fornia section was amended, dropping the above provision. 198 Delay due to proceedings before the Forest Service to get a Federal right of way over a forest reserve is not lack of diligence 12 Dyke v. Caldwell, 2 Ariz. 394, 16 See, also, Stickney v. Hanrahan, 18 Pac. 276. 7 Idaho, 424, 63 Pac. 189, fourteen is Nevada etc. Co. v. Bennett, 30 years in building a sawmill. Or. 59, 60 Am. St. Eep. 777, 45 Pac. \ W' f^jfj et se( *- . 472. Four years :Whited v. Gavin 18 ? Civ. C. ode, 1 416, as amd. in Stats. (Or. 1909), 105 Pac. 396, at 398. Two 18 JJ, 0. 429, quoted infra, sec. 1432. years in Nevada D. Co. V. Canyon etc. **" 8ia ^\ es a Met part of Co. (Or.), 114 Pac. 86. this book. Stats. 1907 c. 185, p. 489 ^ on ^ 19a Civ. Code, sec. 1416, as amended 14 Oviatt v. Big Four Co., 39 Or. b gtatg ign c 73Q The new 118, 65 Pac. 811. See also Gates v. amendment concerns appropriations by Settlers' etc. Co., 19 Okl. 83, 91 Pac. citiegj count i es O r towns, and makes it sufficient diligence if bonds are is- 15 Colorado etc. Co. v. Rocky Ford sued within six months. Quoted in- etc. Co., 3 Colo. App. 545, 34 Pac. 580. fra, sec. 1432. 385 Ch. 17. HOW APPEOPRIATION IS MADE. (3d ed.) 417 in California. In a California case, within a forest reserve, plain- tiff posted notice April 18, 1903, applied for forest permit (not stated), received permit August 30, 1906, did no work thereafter. Began suit September 21, 1906. Defendant posted notice Sep- tember 26, 1902, commenced work within sixty days diligently, applied for permit March 5, 1903, stopped by forest officer April 17, 1903, received permit July 28, 1906, worked diligently there- after. It was held that defendant was first in time, and always diligent. Delay caused by Forest Service, of three years, is not lack of diligence, being protected by Civil Code, section 1422. That section covers such delay though the notice did not in words say that the point of diversion was in a forest reserve, for the court will take judicial notice of the boundaries of forest reserves. 20 (3d ed.) 385. Failure to Use Diligence. The failure to use diligence is like the failure to post notice, and deprives the claimant of the benefit of the doctrine of relation. It is not fatal if the work is nevertheless completed before others intervene, and the former may claim as an appropriator by actual diversion. 21 Against interveners, however, it is -fatal. 22 As between rival claimants neither of whom is diligent, probably the result will be the same as discussed under the matter of notice, and both will be deprived of any benefit of the doctrine of relation, not having complied with the code. 23 20 Wishon v. Globe etc. Co., 158 not so relate, but generally dates from Cal. 137, 110 Pac. 290. the time when the work is completed See infra, sec. 430, et seq. as to ap- or the appropriation is fully per- propriations in forest reserves. fected." Ophir etc. Co. v. Carpenter, 21 Wells v. Mantes, 99 Cal. 583, 34 4 Nev. 534, 4 Morr. Min. Rep. 640. Pac. 324. 23 Such is the principle on which 22 Nevada etc. Co. v. Kidd, 37 Cal. De Necochea v. Curtis, 80 Cal. 397, 20 282 ; Wells v. Mantes, 99 Cal. 583, 34 Pac. 566, 22 Pac. 198, and Wells v. Pac. 324; Cal. Civ. Code, 1419; Cruse Mantes, 99 Cal. 583, 34 Pac. 324, were v. McCauley, 96 Fed. 369; Bear Lake decided. It may, however, be that etc. Co. v. Garland, 164 U. S. 1, 17 they will be on the same footing as Sup. Ct. Rep. 7, 41 L. Ed. 327; New rivals before the code, where the Loveland etc. Co. v. Consolidated etc. better right existed in the one who Co., 27 Colo. 525, 62 Pac. 366, 52 L. was last diligent; that is, the right R. A. 266; Colorado etc. Co. v. Rocky would relate back to the time when Ford etc, Co., 3 Colo. App. 545, 34 (if any) a new start was first made, Pac. 580; Cole v. Logan, 24 Or. 304, and the work thereafter diligently car- 33 Pac. 568; Kenney v. Carillo, 2 N. ried on. See 60 Am. St. Rep. 801, M. 493 ; Rodgers v. Pitt, 129 Fed. 932. note. "If, however, the work be not prose- Where A started work in 1897 but cuted with diligence, the right does not diligently, and then sold to B in Water Rights 27 418 (3d ed.) Pt. HE. THE LAW OF PRIOR APPEOPEIATION. 386 F. COMPLETION OF CONSTRUCTION WORK. (3d ed.) 386. Completion of Work Preparatory to Use of Water was a requisite from the earliest days. 24 "However, he never com- pleted his ditch, but abandoned it, and it remained unused for several years. No water-rights ever became vested in him on ac- count thereof." 25 There is no appropriation without the com- pletion of the actual labor necessary to take the water into possession. 1 As we have seen, the completion of the preparatory work, followed by actual diversion for a beneficial purpose, is alone enough where the doctrine of relation is not involved; the requisites of notice and diligence being merely supplementary to this, the prime factor, in order to apply the doctrine of relation between rival claimants. (3d ed.) 387. What Constitutes Completion. The California code definition of completion is that "by completion is meant conduct- ing the waters to the place of intended use." 2 It is sometimes said that there must be an actual diversion of the waters ; but this is too narrow a term, since in peculiar cases the appropriation may be accomplished without any diversion at all. Thus, straightening out a bed of a stream by dikes or dams constitutes an appropriation, though there is no diversion at all. 3 So, simply putting a large current water-wheel in the stream itself would doubtless be an appropriation of enough water to run it. It has been said, however, that domestic use made in the stream itself without diversion cannot be protected under the law of appropriation. 4 In another case simply putting current- 1903, who then used diligence, B has a * Civ - Code, sec. 1417. Copied in better right than one seeking to McLean's Idaho Rev. Codes, sec. 3251. initiate an appropriation in 1905. 3 Ke "7 v - Natoma etc. Co., 6 Cal. Thorndyke v. Alaska Perseverance Co. 105 > l Morr - Mm - Re P- 592 5 Hoffman (Alaska), 164 Fed. 657, 90 C. C. A. , ft Sto e >. 7 Cal - 4 4 = Morr. Mm Rep. 470 520; Smsun v. De Freitas, 142 Cal. 350, 75 Pac. 1092; McCall v. Porter, 24 Kimball v. Gearhart, 12 Cal. 50, 42 Or. 49, 70 Pac. 820, 71 Pac. 976. 1 Morr. Min. Rep. 615. Now required Cf. Cascade Co. v. Empire Co. (Colo.), by sec. 1416, Cal. Civ. Code. Also i$i Fed. 1011. Cal. Stats. 1911, C. 406, see. 4. 4 Hutchinson v. Watson D. Co. 25 Watts v. Spencer, 51 Or. 262, (1909), 16 Idaho, 484 133 Am. St. 94 Pac 39. Re P- 125 > 101 Pac - 10 9 ' whlch case protected such use under the common 1 Bear Lake etc. Co. v. Garland, ] aw O f riparian rights, which thereto- 164 U. S. 1, 17 Sup. Ct. Rep. 7, 41 f ore had been regarded as rejected in L. Ed. 327. toto in Idaho. 388,389 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 419 wheels in a stream was held not to be an appropriation so as to secure a continuance of conditions necessary to running them, saying that there can be no appropriation without diversion in a ditch or similar visible structure. This decision, however, is, in reality, based upon a modification of the law of appropriation, and in that aspect has been already considered. 5 A recent case holds that building a health and pleasure resort near a waterfall appropriates the waterfall, which is going pretty far in the opposite direction. 58 Usually, however, there will be no completion without diver- sion; and usually the diversion consists in carrying the water to distant lands, wherein the doctrine of appropriation has a lead- ing departure from the common law of riparian rights. 6 (d ed.) 388. Means of Diversion. Any means adapted to the bona fide consummation of the intention to apply the water to the beneficial use intended will be sufficient. A person making an appropriation of water from a natural stream need not construct any headgate at the place of diversion, and if a simple cut will accomplish the purpose of diverting the water from the stream, it is, if accompanied with a beneficial use, a good appropriation as against others making a subsequent diver- sion and use. 7 (3d ed.) 389. Diversion Alone. Where the doctrine of relation is not invoked, the diversion for a beneficial purpose is alone enough, constituting the claimant an appropriator by actual diversion as against later claimants. 8 But simple diversion, if not for a beneficial purpose, is in- effectual in any case. Where water is diverted from the bed of a stream not for use, but to clear out and drain the channel, a mere drainage ditch, there is no appropriation. 9 Likewise where 5 Supra, sees. 310 et seq., 313. Am. St. Rep. 727, 27 Pac. 7; Hough 5a Cascade Co. v. Empire Co. v. Porter, 51 Or. 318, 95 Pac. 732, 98 (Colo.), 181 Fed. 1011. Pac. 1083, 102 Pac. 728. 6 See Pomeroy on Riparian Rights, 8 Supra, sec. 364 et seq. sec. 48; Kinney.on Irrigation, sec. 9 Eddy v. Simpson, 3 Gal. 249, 58 162. Am. Dec. 408, 15 Morr Min. Rep. 7 Lower Tule etc. Co. v. Angiola 175; Maeris v. Bicknell, 7 Cal. 261, etc. Co., 149 Cal. 496, 86 Pac. 1081; 68 Am. Dec. 257, 1 Morr. Min. Rep. Simmons v. Winters, 21 Or. 35, 28 601. 420 (3ded.) Pt. III. THE LAW OF PRICE APPROPRIATION. 390 more water is diverted than can be put to any purpose, no right vests in the surplus diverted over what is beneficially used. 10 (3d ed.) 390. Use of Existing Ditches. What means may be used in making the diversion being immaterial, existing ditches or other works may be used, if lawfully obtained. They may be used and enlarged with the consent of their owner, 11 or may be abandoned ditches, to which their owner makes no claim, or any other works where the owner himself does not contest their use, and the use of which will afford no ground for opposition by strangers to such owners. 12 Such use is revocable by the owner, but good against all others. 13 In a recent case in the supreme court of California, Mr. Justice Shaw said: 14 "A person who is making an appropriation of water from a natural source or stream is .not bound to carry it to the place of use through a ditch or artificial conduit, nor through a ditch or canal cut especially for that pur- pose. He may make use of any natural or artificial channel, or natural depression, which he may find available and convenient for that purpose, so long as other persons interested in such con- duit do not object, and his appropriation so made will, so far as such means of conducting the water is concerned, be as effectual as if he had carried it through a ditch or pipe-line made for that purpose and no other." 15 10 Riverside etc. v. Sargent, 112 Lehi Irr. Co. v. Moyle, 4 Utah, 327, 9 Cal. 230, 44 Pac. 566; Senior v. An- Pac. 867. derson, 115 Cal. 496, 47 Pac. 454; In Colorado, consumers from a corn- Smith v. Hawkins, 120 Cal. 86, 52 pany's canal are regarded as appro- Pac. 139, 19 Morr. Min. Rep. 243; priators from the natural stream Bledsoe v. Decrow, 132 Cal. 312, 64 through the intermediate agency of Pac. 397. that canal. Infra, sec. 1338 et seq. To constitute an appropriation of 12 Utt v. Frey, 106 Cal. 392, 39 Pac. water there must not onty be a diver- 807. Supra, sec. 246. sion from the stream and a carrying 13 Hough v. Porter, 51 Or. 318, 95 of it to the place of use, but it must Pac. 732, 98 Pac. 1083, 102 Pac. 728. be beneficially applied, and the meas- 14 Lower Tule etc. Co. v. Angiola tire of appropriation does not depend etc. Co., 149 Cal. 496, 86 Pac. 1081. alone upon the amount diverted and 15 Citing Hoffman v. Stone, 7 Cal. carried, but the amount which is ap- 49, 4 Morr. Min. Rep. 520; Butte C. plied to a beneficial use must also be & D. Co. v. Vaughan, 11 Cal. 150, 70 considered. Woods v. Sargent, 43 Am. Dec. 769, 4 Morr. Min. Rep. 552 ; Colo. 268, 95 Pac. 932. Simmons v. Winters, 21 Or. 35, 28 See infra, sec. 481 et seq. Am. St. Rep. 727, 27 Pac. 9; McCall 11 Water Supply Co. v. Larimer etc. v. Porter, 42 Or. 56, 70 Pac. 822, 71 Co., 24 Colo. 322, 51 Pac. 496, 46 L. Pac. 976; Richardson v. Kier, 37 Cal. R. A. 322; North Point Co. v. Utah 263. See, also, Evans D. Co. v. Lake- Co., 16 Utah, 246, 67 Am. St. Rep. side D. Co., 13 Cal. App. 119, 108 Pac. 607, 52 Pac. 168, 40 L. R. A. 851; 1027. 5393 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 421 Where existing works of others are used, the statutes for post- ing notices need not be followed where there is no delay in the diversion; for no claim is then made to the doctrine of relation; nor, in Colorado, need the statutes for filing maps be followed. 16 But the appropriation, whether notice is posted or not, is a new one by actual diversion, standing in its own shoes, and can claim nothing from the original appropriation through the same works. 17 The appropriator in such case has no need to invoke the doctrine of relation, since no time needs to be lost in con- struction work. His appropriation need not proceed under the statutory formalities in such a case ; he claims as an appropriator by actual diversion. 18 But the appropriation consequently dates from the new use, not from the original building of the ditch. The new appropriation cannot claim to tack on to the old one. 19 In Utt v. Frey, 20 the court said: "If one animated by a like desire to appropriate water under like circumstances finds a ditch already constructed to hand, takes peaceable possession thereof, and appropriates the water for a like or similar useful purpose, he thereby acquires a like right as against all the world, except the true owner or those holding "under or through him. If nature or art has furnished the medium of appropriation he may avail himself of the gift or labor, without being held liable to those having no interest therein and in nowise connected therewith. To the owner of a ditch thus possessed and used, such apprppri- ator must account until his possession and user ripens into a title by prescription or adverse user. His right in such case will depend for priority as against other appropriators of water from the same stream, upon the date of his possession and appropria- tion, and not upon the date of the original construction of the ditch, and appropriation by some other person under whom he does not hold, and between whom and himself there is no privity of estate. His appropriation in such a case is a new and inde- pendent one,. and must stand or fall upon its own merits." 21 16 Water Supply Co. v. Larimer etc. Cal. 152, 54 Pac. 726 ; Tubbs v. Rob- Co., 24 Colo. 322, 51 Pae. 496, 46 L. rts, 40 Colo. 498, 92 Pac. 220. R. A. 322. 19 McGuire v. Brown, 106 Cal. 660, 17 Union etc. Co. v. Dangberg 39 Pac. 1U60, 30 L. R. A. 384. (Nev.), 81 Fed. 73. 20 106 Cal. at 396, 39 Pac. 807. 18 Ante, sec. 364 et seq. ; Brown v. 21 Cf., however, McRae v. Small, 48 Newell, 12 Idaho, 166, 85 Pac. 385; Or. 139, 85 Pac. 505. Utt v. Frey, 106 Cal. 392, 39 Pac. In Chiatovich v. Davis, 17 Nev. 133, 807; Wood v. Etiwanda etc. Co., 122 136, 28 Pac. 239, 240, the court, in 422 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 391 Where one uses an existing ditch abandoned by the original appropriator, his right does not succeed to the old one, but stands upon the extent of his own actual use. Any surplus in the ditch may be appropriated by others, or they may take the surplus from the natural stream before it reaches the ditch. 22 Special reference is made to. a preceding section. 23 (3d ed.) 391. Same. The use of existing works against the will and objection of the owner when contested by him raises an entirely different question, however, and as to him the appropriation is invalid, in the absence of condemnation proceedings. The Oregon court recently said: 24 "Plaintiff in error also forgets that it is just as necessary to the creation and preservation of a water-right to provide means for the continual diversion of the water from its natural channel and for conducting it to the place where it is applied to some beneficial purpose, as it is to apply it to the bene- ficial purpose. And he cannot arbitrarily seize and use another's ditch, or interest in a ditch, for that purpose." "No consent to divert the water from the ditch was ever secured, but Gage arbi- trarily seized and used the conduit constructed across patented land, and hence plaintiff, as his successor in interest, never ac- quired any right by appropriation to the use of water from Reeves' Creek." The question here is the same as that involved in the discussion of whether an appropriation can be made by entry on private land, which need not here be repeated. To enlarge a ditch on another's land, like building a new one thereon, is a taking of an interest in his property, and can only be done against his protest by condemnation for a public use, or otherwise acquiring a valid easement. 25 considering this question, said: "The Colo. 601, 606, 19 Pac. 761; Gould plaintiff testified that early in the on Waters, sec. 234; Black's Pomeroy year 1876 he appropriated all of the on Water Rights, sec. 60; Kinney on waters of the creek. Before that time Irrigation, sec. 253 ; Union M. Co. v. these waters had been used to irri- Dangberg, 81 Fed. 73; Sternberger gate plaintiff's land, but as he has not v. Seaton etc. Co. (1909), 45 Colo, in anywise connected himself in in- 401, 102 Pac. 168; Head v. Hale, 38 terest with those who first cultivated Mont. 302, 100 Pac. 222. the land and appropriated the water, See infra, sec. 555, parol sale, his own appropriation in 1876 must 22 Tubbs v. Eoberts, 40 Colo. 498, be treated as the inception of his 92 Pac. 220. right." To the same effect, see Salina 23 Supra, sec. 246. Creek Irr. Co. v. Salina Stock Co., 7 24 McRae v. Small, 48 Or. 139, 85 Utah, 456, 27 Pac. 578; Smith v. Pac. 503; citing McPhall v. Forney, O'Hara, 43 Cal. 371, 1 Morr. Min. 4 Wyo. 556, 35 Pac. 773. Rep. 671; Burnham v. Freeman, 11 25 Supra, sec. 221, et seq. 392,393 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 423 Under the recent decision of the supreme court of the United States in Clark v. Nash, 1 the statute of Utah permitting con- demnation to enlarge another's ditch to carry water to one's own .private estate for irrigation was held constitutional. Similar statutes have for some time stood on the statute books of other States. These and possibly similar statutes, enacted to declare the doctrine of Yunker v. Nichols, 2 will probably be held valid by construing them as. providing for condemnation. At all events, statutes under the permission of Clark v. Nash are likely to be passed hereafter similar to the Utah statute, and the result will be general in the arid regions that an irrigator may build his ditch over the land of another or enlarge another's ditch, without his consent, after due notice and payment of compensation. A further discussion may be * left to the chapter upon eminent domain. 3 (3d ed.) 392. Changes in the Course of Construction. Slight changes may be made, and the original surveyed line departed from. 4 G. RELATING BACK. (3d ed.) 393. Origin of the Doctrine. The question at what date the right accrues as between rival claimants was first before the court in Conger v. Weaver. 5 The court said: "But, from the nature of these works, it is evident that it requires time to complete them, and from their extent, in some instances, it would require much time ; and the question now arises, at what point of time does the right commence, so as to protect the undertaker from the subsequent settlements or enterprises of other persons. If it does not commence until the canal is completed, then the license is valueless, for after nearly the whole work has been done, any- one, actuated by malice or self-interest, may prevent its accom- plishment; any small squatter settlement might effectually destroy it. But I apprehend that, in granting the license which we have presumed for the purpose before us, the State did not intend that it should be turned into so vain a thing but designed 1 198 TJ. S. 361, 25 Sup. Ct. Rep. Am. Dec. 528, 1 Morr. Min. Rep. 594; 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. Parker v. Kilham, 8 Cal. 77, at 80, 68 2 Supra, sec. 223. Am. Dec. 310, 4 Morr. Min. Rep. 522 ; 3 Infra, sec. 607 et seq. Cal. Civ. Code, sec. 1415. 4 Conger v. Weaver, 6 Cal. 548, 65 56 Cal. 548, 1 Morr. Min. Rep. 594. 424 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 393 that it should be effectual for the object in view; and it conse- quently follows that the same rule must be applied here to protect this right as in any other. Possession and acts of ownership are the usual indications of a right of property, and these must be judged according to the nature of the subject matter. One is in possession of an empty house who has the key to its door in his pocket ; of a horse, when he is riding it ; of cattle pasturing upon his ground ; so a miner, who has a few square feet for his mining claim which he cannot directly occupy, has possession, because he works it, or because he has staked it off to work it, if his acts show no intention to abandon ; building a dam is taking possession of water as a usufruct. So, in the case of constructing canals, under the license from the State, the -survey of the ground, plant- ing stakes along the line, and actually commencing and diligently pursuing the work, is as much possession as the nature of the sub- ject will admit, and forms a series of acts of ownership which must be conclusive of the right." In Sieber v. Frink the Colorado court said: 6 "We accept the rule adopted in California and Nevada in this connection. This rule is stated as follows: 'Although the appropriation is not deemed complete until the actual diversion or use of the water, still if such work be prosecuted with reasonable diligence, the right relates to the time when the first step is taken to secure it.' " In Alaska there appears to be no statute governing the making of an appropriation, but the right is held to relate back to the commencement of the work, nevertheless, since the rule always existed under the decisions of courts from the beginning of the doctrine of appropriation, before the passage of statutes. 7 7 Colo. 148, 2 Pac. 901. handle Co., 11 Idaho, 405, 83 Pac. 7 Miocene Ditch Co. v. Jacobsen, 347; Head v. Hale, 38 Mont. 302, 100 146 Fed. 680, 77 C. C. A. 106; Me- Pac. 222; Wright v. Cruse, 37 Mont. Farland v. Alaska etc. Co., 3 Alaska, 177, 95 Pac. 370; Hough v. Porter, 308. See Van Dyke v. Midnight Sun 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, Co. (Alaska), 177 Fed. 90, 100 C. C. 102 Pac. 728; and cases cited through- A. 503. out this section. The doctrine of relation was also "In determining the question of applied inter alia in Irwin v. Strait, the time when a right to water by 18 Nev. 436, 4 Pac. 1215 ; Nevada etc. appropriation commences, the law Co. v. Bennett, 30 Or. 59, 60 Am. St. does not restrict the appropriator to Rep. 777, 45 Pac. 472; Water Supply the date of his use of the water, but, Co. v. Larimer etc. Co., 24 Colo. 322, applying the doctrine of relation, fixes 51 Pac. 496, 46 L. R. A. 322 ; Whited it as of the time when he begins his v. Gavin (Or. 1909), 105 Pac. 396; dam or ditch or flume, or other appli- Beckwith v. Sheldon, 154 Cal. 393, 97 ance by meansx)f which the appropri- Pac. 867 ; Sandpoint etc. Co. v. Pan- ation is effected, provided the enter- 394 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 425 The doctrine is enacted in the California Civil Code 8 and in the statutes of all the Western States in one form or another. 8 With regard to the doctrine of relation under the Federal Eight of Way Acts, reference is made to a later chapter. 10 (3d ed.) 394. Effect of Relation. The doctrine of relation is invoked to protect bona fide appropriators during the time they are build- ing ditches and other preparatory works; and at the same time to give no comfort to those who, not bona fide, try to monopolize water for speculative purposes. It gives a qualified protection to the former. His right in any case comes into existence only on completion of the work. But his claim is a preferred one. The fact that he posted his notice first and worked diligently gave him a preference over others; a kind of option, though his title did not ripen until the option was with diligence exercised by a complete diversion. This was decided after much discussion in the case of Nevada etc. Co. v. Kidd, 11 holding in effect that the doctrine of relation does not vest a water-right at the time of posting notice, with a condition subsequent, as is often thought, but vests the right upon actual diversion, with a preference to him who first posted notice and worked diligently. 12 It gives a preference to certain appropriators from the time of completion, thence into the future; it does not completely carry prise is prosecuted with reasonable dil- 3120, 3121, provides that upon com- igence." Union Min. Co. v. Dangberg, pliance with the statute the date of 81 Fed. 73, citing: Ophir Silver Min. priority relates back to the time when Co. v. Carpenter, 4 Nev. 534, 544, 97 the work, excavation or construction Am. Dec. 550, 4 Morr. Min. Rep. 640 ; commenced. The rule is much the Irwin v. Strait, 18 Nev. 436, 4 Pac. same under State Water Codes in the 1215; Kimball v. Gearhart, 12 Cal. next chapter. See statutes in Part 28, 1 Morr. Min. Rep. 615; Canal Co. VIII, below. v. Kidd, 37 Cal. 283, 311; Osgood v. 10 Infra, sec. 435. Mining Co., 56 Cal. 571, 578, 5 Morr. n 37 Cal. 282. Quoted supra, sec. Min. Rep. 37; Sieber v. Frink, 7 Colo. 374. 149, 154, 2 Pac. 901 ; Woolman v. 12 Accord, De Necochea v. Curtis, Garringer, 1 Mont. 535, 1 Morr. Min. 80 Cal. 398, 20 Pac. 563, 22 Pac. 198, Rep. 675; Kinney on Irrigation, sees. and Wells v. Mantes, 99 Cal. 583, 34 160, 161; Black's Pomeroy on Water Pac. 324. Rights, sec. 55. "The possession of the unfinished 8 Sec. 1418, below quoted. dam and canal, or of the site, is not 9 In Washington, Pierce's Code, sec- the possession and enjoyment of the tion 5134, provides that the right re- water, but merely the possession of lates back to posting of notice. the means of acquiring, by the exer- South Dakota Statutes of 1907, chap- cise of due diligence, a right to the ter 180, section 2, does the same as to water in the future. This is the doc- rights, before passage of the act. In trine of this court, as established by Texas, Sayles' Civil Statutes, articles a long series of decisions. The right 426 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 394 title as owner of the water-right back to the date notice is posted. Consequently, in the interim between posting notice and actual completion (which may be a considerable time) anyone else may divert the water. There is no right of action for such diversion ; there is as yet no water-right acquired. 13 But after completion, the rights of the rival claimants for future purposes are consid- ered as relating back to the date of notice. The priority of appropriation for future purposes is determined by looking back to that date. All of these propositions are laid down in Nevada etc. Co. v. Kidd, 14 a case since frequently cited and approved. 15 The appropriator need not take notice of the interveners. His right relates back and he is not under a duty to prevent others from attempting to acquire temporary rights in the meantime. 16 If an appropriator, after duly posting a notice, and while prose- cuting his work with diligence, posts a second notice of appropria- tion of the same water, the right may still relate back to the first notice. 17 to the water, or water-right, as it is commonly called, is only acquired by an actual appropriation and use of the water. The property is not in the corpus of the water, but is only in the use. The latter doctrine was laid down in Eddy v. Simpson, 3 Cal. 249, 15 Morr. Min. Rep. 175, and has been often repeated since. In Kidd r. Laird, 15 Cal. 179, 4 Morr. Min. Rep. 571, our predecessors said: 'Un- til a claimant ifr himself in position to use the water, the right to the water, or water-right, does not exist in such sense that the mere diversion and use of the water by another, is a ground of action either to recover the water, or for damages for the diver- sion.'" Nevada C. & S. C. Co. v. Kidd, 37 Cal. 282, at 310, 311. . 13 "A party may to-day take up a site for a dam and canal, and claim the waters of a river, to be diverted at that point, and immediately com- mence work with a view of appro- priating the water to his use for min- ing purposes, and yet, although labor- ing with all diligence, be unable actually to use the water for any pur- pose for years to come. Until he can use it, another party may divert the whole water and use it, provided he can do so without injury to the plain- tiff's dam or canal, or the progress of his work"; but adding that, after the former is ready to use the water, then his right will thereupon "for the pur- poses of priority and of redressing any injuries that may thereafter accrue, date by relation from the first act in selecting the location and making the claim." . Nevada C. & S. C. Co. v. Kidd, 37 Cal. 282, at 310. "We have before seen, that until plaintiff is in a condition to use the water, the defendants are entitled to divert and use it, provided they can do so without obstructing the plaintiff in the construction of its own works with an intention to make a future actual appropriation and use; and that there can be no right of action against defendants for diverting the water in its own ditch, which does not interfere with plaintiff's work, till the plaintiff is itself in a condition to divert and use it." Nevada C. & S. C. Co. v. Kidd, 37 Cal. 282, at 319. 14 37 Cal. 282. 15 See supra, sec. 374. 16 Woolman v. Garringer, 1 Mont. 535, 1 Morr. Min. Rep. 675. 17 Pomeroy on Riparian Rights, sec. 51; Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059; Osgood v. Eldorado etc. Co., 56 Cal. 571, 5 Morr. Min. Rep. 37. 394 Ch. 17. HOW APPROPRIATION IS MADE. (3d ed.) 427 The doctrine of relation is enacted in the Civil Code of Cali- fornia: 18 "By a compliance with the above rules the claimant's right to the use of the water relates back to the time notice was posted." There is no reason to think that this will not be con- strued in accordance with the decision in Nevada etc. Co. v. Kidd, 19 as to intervening use, though the point of temporary intervening use has not been under actual decision since the adop- tion of the code. The doctrine of relation was also applied in an early Nevada case, 20 with a dictum that relation was to the com- mencement of actual work not necessarily to the notice. 21 The point is settled in California by the code provision quoted above, and in the arid States by statutes dating priority from the date of filing application with the State Engineer. 22 Notice by relation prevails over the riparian rights of an inter- vening settler, both as to water-rights and ditch-rights. 23 Where an appropriator posted notice, and thereafter a settler homesteaded the land on which the stream arose (from artesian wells), it was held that the appropriator, with diligence, was entitled to con- tinue building his ditches, though not entitled to develop any new water by digging new wells. 24 E-elation back may preserve a ditch-right over a mining claim interveningly located before the ditch was completed. 25 But it will not put the ditch under an intervening mortgage. 1 The doctrine of relation as applied to the acquisition of rights of way and reservoir sites has been held inapplicable against the United States, which may hence withdraw the reservoir site from acquisition any time before the completion of the reservoir, though preliminary filings had been made. 2 18 Sec. 1418. 23 De WolfskiU v. Smith, 5 Cal. 19 See De Necochea v. Curtis, 80 A PP- 175 , 89 Pac. 1001. Cal. 396, 20 Pac. 563, 22 Pac. 198; 4 D WolfskiU v. Smith, 5 Cal. Burrows v. Burrows, 82 Cal. 564, 23 A PP- 175 > 89 Pac. 1001. Pac. 146; Wells v. Mantes, 99 Cal. Miocene etc. Co. y. Jacobsen, 583 34 Pac. 324. 146 Fed. 680 > 77 C - C - A - 106 - As to f\.oif ia TV TT AW A. rel ation back of a ditch on public land 20 Irwin v. Strait, 18 Nev. 436, 4 when conflicting with a to ^ nsite loca . ^ ac- - 1 1&t tion, see Baker etc. Co. v. Baker City 21 The dictum is disapproved by (Or.), 113 Pae. 9. Pomeroy on Riparian Rights, sec. 54, i Bear Lake etc. Co. v. Garland, note, and Kinney on Irrigation, sec. 164 U. 8. 1, 17 Sup. Ct. Rep. 7, 41 168. See Whited v. Cavin (Or. 1909), L. Ed. 327. 105 Pac. 396. 2 United States v. Rickey, 164 Fed. 22 Infra, see. 421. 496. 428 (3d ed.) Ft. III. THE LAW OF PRIOR APPROPRIATION. 395 H. ACTUAL APPLICATION. (3d ed.) 395. Necessity for Actual Application and Use Under the Possessory Origin of the Law. Water must be continually ap- plied to a beneficial use under the doctrine of appropriation. It was the theory on which the law arose, however, that actual use was not itself an element in the creation of the right, but that nonuse would defeat a right; that actual application was not a condition precedent, but matter subsequent, operating by way of abandonment. Historically, an appropriation was simply the taking possession of the stream (a "possessory right" on the public domain), so that diversion was the last step to such possession, and the last step in completing the appropriation. Consequently the Cali- fornia Civil Code says: 3 "By completion is meant conducting the waters to the place of intended use," ignoring actual application as an element of completion of the right. This is but one illustration of the possessory origin of the law of appropriation. As a possessory right upon the public domain (though turned into a freehold on the public domain by the act of 1866, and California still confines the law of appropriation to the public domain), the right took on typical possessory charac- teristics. It consisted in possession of the flow of the stream; diversion constituted the appropriation because it constituted possession, whence the rule protecting appropriators "by actual diversion" and likewise the enforcement of the doctrine of rela- tion upon completion of construction work and diversion ; capac- ity of ditch, as the amount in possession, measured the right; the right, as one to possession of the stream, was independent of place or mode of use ; nonuse did not cause loss of right without voluntary abandonment of possession ; injunctions were granted to protect the flow in possession though no damage to use had arisen. 4 Beneficial use was represented in the acquisition of the right by the requisite of bona fide intention, already set forth. The actual accomplishment of this intention was necessary, but the lack of its accomplishment was regarded as matter subse- quent, working by way of defeasance, on the principles of aban- donment; the right being complete on diversion, that completing 3 Section 1417. * See cross-references supra, sec. 139. 396 .. Ch. 17. HOW APPKOPRIATION IS MADE. (3d ed.) 429 the formalities equivalent to taking possession of the stream. The actual application and use of the water need not follow im- mediately. The appropriator had a reasonable time in which to prepare his fields or the place of use. An unreasonable delay was simply evidence of abandonment of a right acquired by a diver- sion made in good faith. 5 It is necessary to appreciate this historical view, for otherwise it is not possible to understand many early decisions in this and other connections (such as those measuring the amount appro- priated by the capacity of the ditch as well as by beneficial use). 6 (3d ed.) 396. Same Under the View Now Developing. But the law of appropriation in recent years (especially under the Colo- rado doctrine, where it is the sole law of the State and not con- fined, as under the California doctrine, to the public domain), has been throughout departing its possessory origin and character- istics. It is rapidly changing from a possessory to a specific use system, regarding less the possession of a definite part of the flow of the stream, than the requirements of a specific use, such as the irrigation of a specific tract of land. In some respects this change is fairly well established ; the Colorado doctrine no longer re- gards the right as springing from a possessory right on the pub- lic domain, but usually considers it obtained from the State; capacity of ditch has been almost wholly displaced by beneficial use as measuring the right; nonuse ipso facto is causing loss of right without regard to any question of intention not to abandon the flow; injunctions are not granted to protect the flow, but only where use is damaged. 7 In these matters the change is fairly well established ; in others not quite so established ; that is, the possessory characteristic of being independent of place or mode of use is still rather strongly maintained; although there is a strong movement at the same time to make the right (for irriga- tion) inhere in the land irrigated. With regard to the present matter, the change is about in a middle course; in some respects actual application to use is fully held an element in creating a right. The Colorado court, which has very largely departed from the possessory origin of the law, 5 See infra, sec. 483, future needs; 6 See, generally, supra, sec. 139. and sec. 567 et seq., abandonment; 7 See cross-references, supra, sec. and sec. 575 et seq., forfeiture. 139. 430 (3d ed.) Pt III. THE LAW OF PEIOE APPEOPEIATION. 396 interpreted the rule as being that actual application of the water to the use intended is a condition precedent to the creation of the right, and not necessarily matter subsequent ; 8 and this has been followed generally in the desert States and became the accepted form of statement, viz., that there can be no appropriation until the actual use is made. 9 ''No principle in connection with the law of water-rights in this State is more firmly established than that the application of water to beneficial use is essential to a completed appropriation," 10 expressly holding that the question is not one of abandonment. And yet, while this is the general form of statement to-day, the matter is really in a state of transi- tion, as may be seen from some differing rulings made when the point is called into actual decision. It is ruled in Colorado that a consumer from a distributing company is the true appropriator, and not the company, because actual use is made by the consumer, until which there is no ap- propriation. In a leading Colorado case, 11 it is said: "To con- stitute a legal appropriation, the water diverted must be applied within a reasonable time to some beneficial use. That is to say, the diversion ripens into a valid appropriation only when the water is utilized by the consumer ' ' ; and it is hence ruled in Colorado that the consumers own the natural water resources. 12 Then in other jurisdictions, while actual use is declared an element in 8 Thomas v. Guiraud, 6 Colo. 533; pleted valid appropriation of water, Wheeler v. Northern Irr. Co., 10 Colo. is the application of it to a beneficial 582, 3 Am. St. Rep. 603, 17 Pae. 487; purpose. Whatever else is required to Platte etc. Co. v. Northern Irr. Co., be or is done, until the actual appli- 12 Colo. 531, 21 Pae. 711; Farmers' cation of the water is made for a etc. Co. v. Southworth, 13 Colo. Ill, beneficial purpose, no valid appropri- 21 Pae. 1029, 4 L. E. A. 767; Combs ation has been effected." Sowards v. v. Agric. D. Co., 17 Colo. 146, 31 Am. Meagher (Utah, 1910), 108 Pae. 1113. St. Eep. 275, 28 Pae. 966; Fort Mor- Accord, Hagerman Co. v. McMurray gan etc. Co. v. S. Platte etc. Co., 18 (N. M.), 113 Pae. 823. Colo. 1, 36 Am. St. Eep. 259, 30 Pae. In Idaho it is said (dictum") that 1032; Cash v. Thornton, 3 Colo. App. actual application to use is "The final 475, 34 Pae. 268; Farmers' etc. Co. v. act of appropriation." City of Poca- Agricultural etc. Co., 22 Colo. 513, tello v. Bass (1908), 15 Idaho, 1, 96 55 Am. St. Eep. 149, 45 Pae. 444; Pae. 120. Larimer etc. Co. ?. Cache La Poudre 10 Conley v. Dyer, 43 Colo. 22, 95 etc. Co., 8 Colo. App. 237, 45 Pae. Pae. 304. 525 ; Town of Sterling v. Pawnee etc. H Wheeler v. Northern Irr. Co., 10 Co., 42 Colo. 421, 94 Pae. 341, 15 Colo. 582, 3 Am. St. Eep. 603, 17 L. E. A., N. S., 238; Conley v. Dyer, Pae. 487. See the opinion contra in 43 Colo. 22, 95 Pae. 932; Park v. Wyatt v. Larimer Co. (1892), 1 Colo. Park (1909), 45 Colo. 356, 101 Pae. App. 480, 29 Pae. 906 (overruled in 406. 18 Colo. 298, 36 Am. St. Eep. 280, 33 9 "The final step, and the most Pae. 144). essential element, to constitute a com- 12 Infra, sec. 1338. 396 Ch. 17. HOW APPROPRIATION IS MADE. (3ded.) 431 creation of the right as in Colorado, yet the opposite conclusion is reached regarding the position of the water title; the canal company 13 the one held to be the appropriator even though it does not personally make the use. Thus, in Oregon 13 Judge Wolverton quotes statements in the authorities based upon posses- sory origin that only the intent to apply to a beneficial use is the element of creation of appropriation (the application to use being matter subsequent to the creation of the right) and other state- ments in Colorado authorities that the consummation of the appli- cation to beneficial use is the element ; but when it comes to actual decision in the case, decides in accordance with the former (the original or possessory) view, and holds that a distributing company is the appropriator, because it has the intent to accomplish a bene- ficial use whether immediate or through the mediation of others (whereas the Colorado cases hold the consumer to be the appro- priator because he alone consummates the actual use). The court said: "The water of a public stream is eventually applied to a beneficial use, and the general purposes of such appropriations ac- complished." And adds that beneficial use is enforced under this theory not as a condition precedent, but by the penalty of suffering an abandonment or forfeiture for waste. 14 And even in Colorado the distributor is regarded as the appropriator when it comes to adjudicating rights upon streams ; that is, decrees are rendered only between the canals leading from the stream itself, and not between consumers. 15 Again, in Colorado, though actual use is laid down as the essen- tial prerequisite, yet the possessory principle is followed regarding change of use, and the right is held not to inhere inseparably in the 13 Nevada D. Co. v. Bennett, 30 Or. the appropriator." Likewise Nevada 59, 60 Am. St. Rep. 777, 45 Pac. 472. D. Co. v. Canyon etc. Co. (Or.), 114 H In a later Oregon case it is said : Pac. 86, holding the user to be the "Whatever may be the rule elsewhere, agent of the company to make the use this question is set at rest in the very (whereas the Colorado cases say the clear and able opinion by Mr. Justice canal company is, on the contrary, the Wolverton, in Nevada Ditch Co. v. agent of the consumers to make the Bennett, 30 Or. 59, 60 Am. St. Rep. diversion). And yet, in Oregon, per- 777, 45 Pac. 472, where this feature mits under the act of 1909 will not be was prominent among the many points issued for selling water, but only for relied upon. It was there held that storage. See, also, Cookinham v. a bona fide intention to devote the Lewis (Or.), 114 Pac. 88. water to a useful purpose, which is See, also, Sowards v. Meagher required of an appropriation, may (Utah, 1910), 108 Pac. 1113; Leavitt comprehend the use to be made by or v. Lassen Irr. Co., 157 Cal. 82, 106 through other persons and upon lands Pac. 404. and possessions other than those of 15 Infra, sec. 1229. 432 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 397 specific use made ; and likewise it is held, as quoted in the opening sections of this chapter, that an appropriation may be made by one who owns no land of his own. So, also, former Colorado decrees were measured by capacity of ditch, leaving nonuse to operate by abandonment (though recent rulings read the qualification of beneficial use into them as a. condition precedent to the right). In appropriations for future use (which are generally upheld if bona fide], also, this divergence of views will probably cause diffi- culty. The original theory, considering the appropriation complete on completion of the construction work and diversion (the taking of possession of the water) necessitates the enforcement of the doc- trine of relation from that time, whereas, when the acquisition of the right is delayed until actual application, it will keep open and uncertain for years (under frequent decisions) the doubt whether an appropriation exists, as some States allow years to pass (if a reasonable time) before the application need be made; 16 and after those years of uncertainty, will cut off the intervening rights of other claimants. 17 These matters are mentioned to bring out that while actual ap- plication to the use intended is generally to-day stated as an element in creation of the right as well as the bona fide intention, yet it is a departure now going on from the possessory origin of the law, not yet complete, and consequently leaving inconsistent decisions. In view of the California code section above quoted, it is diffi- cult to see how it can be denied that the possessory test of comple- tion of the right remains in force in California and that diversion (with a bona fide intention) there completes the right, the question of consummation of the use operating as matter subsequent, by abandonment or forfeiture of possession. The question of actual application of the water will be matter for consideration again, in discussing the amount an appropriator can divert for future needs, without any present application there- of. 18 (3d ed.) 397. Federal Requirements. In California, the law of ap- propriation is confined to waters upon the public lands, and the is Infra, sec. 483, future needs. 18 Infra, sec. 483. 17 See Seaweard v. Pacific etc. Co., 49 Or. 157, 88 Pac. 963. 398 Ch. 17. HOW APPEOPRIATION IS MADE. (3d ed.) 433 foregoing rules grew up under the permission of the act of Con- gress of 1866. 19 That act is still upon the statute books. But the Federal departments are building a new system based upon rights of way, in numerous matters affecting the foregoing, especially within the forest reserves. In California, nearly all the remaining streams on public land are in whole or part within forest reserves, and section 1422 of the California Civil Code requires that a permit from the Forest Service be obtained. Also on unreserved public land the new Federal System governing rights of way is of great importance. Consequently, as the law of appropriation in Cali- fornia applies only to waters on public lands, and as settlement and other private acquisition have taken out of the public domain the greater portion of the agricultural lands in California, and as the remaining public land along streams is subject to the new Federal System governing rights of way, it seems that the method of ac- quiring water-rights described in this chapter is of rapidly diminish- ing importance in California. Regarding the Federal requirements, reference is made to a later chapter. 20 (3d ed.) 398. Recapitulation. To sum up: The doctrine of appro- priation in California applies only to water on public land. An appropriation may be made under the California method (the original method) by actual diversion of the water for a beneficial purpose without more, and is good against all claimants (appro- priators or riparian patentees in California) who seek to initiate a title subsequent to the date of diversion ; but no claim can be made to the benefit of the doctrine of relation so as to found any right antecedent to the diversion. To secure the benefit of the doctrine of relation, there must be posted a notice of appropriation (which must be recorded), there must be a bona fide intention to use the water for a beneficial pur- pose, there must be diligence in the construction work, and the work must be completed (that is, the waters conducted to the place of intended use). These requisites, as at present prevailing under the California method, are substantially the same as those estab- lished in the early days by the customs of miners and decisions of l See historical chapters. 20 Infra, sec. 430 et seq. Water Bights 28 434 (3d ed.) Pt. III. THE LAW OF PBIOR APPROPRIATION. 398 the courts. They are founded upon the proposition that the right to water by appropriation was a member of the large class of posses- sory rights on the public domain (and in California still is confined to the public domain), and these requisites are the equivalent of taking possession. Actual application of the water is not a pre- requisite, under the orginal theory, to the vesting of the right. The right is complete when possession has been taken. The water must be actually applied to a beneficial use within a reasonable time or the right will cease by abandonment ; but application is not a prerequisite to invoking the doctrine of relation under the orginal theory. But in most States actual use has been added as itself an element in the creation of the right, as well as the bona fide intention; that is, the intention must be actually consummated by use within a reasonable time before an appropriation has any exist- ence as such. When the requisites stated have been completed, the right to the water relates back to the date of posting notice, in order to deter- mine priority between conflicting claims, and gives the appropriator a better right than all claimants subsequent to the notice. It does not, however, carry back any right to complain of intervening use by others in the meantime such temporary use by others is al- lowed ; it establishes priority against them only for future purposes. If the requisites stated have not -been strictly complied with, all benefit of the doctrine of relation is forfeited, and the claimant will have no right against those who actually divert the w r ater before he does, and will have only a temporary right against those who have posted a notice and are working diligently ; a temporary right which ceases when the others have completed their construction work and are themselves in a position to divert and use the water. If the appropriation is within (or must cross) a forest reserve or other withdrawn public land, compliance with rules and regulations of Federal departments is required. 399-407. (Blank numbers.) S 408 Oh. 18. HOW APPROPRIATED STATE CODES. (3d ed.) 435 CHAPTER 18. HOW AN APPROPRIATION IS MADE UNDER STATE WATER CODES. 408. The Wyoming method. 409. Authority of State Engineer. 410. Vested rights protected. 411. Exclusiveness of the statutory method. 412. Application for permit. 413. Fees and royalties. 5 414. Examination of application and issuance of permit. 415. Eejection of applications. 416. Same. 417. Nature of a permit. 418. Prosecution of the work. 419. Cancellation of permits for failure of work. 420. Issuance of certificate of appropriation. 421. Date of right. 422. California Water-power Act of 1911. 423. Federal requirements. 424-429. (Blank numbers.) (3d ed.) 408. The Wyoming Method; One of the essential features of the new legislation is the adoption of a comprehensive method of making appropriations hereafter. The statutes in this respec,t are all much alike, though varying in detail. This method is to-day enacted in Idaho, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, and Wyoming, and to some extent in Colorado. (It is not in force in California, Mon- tana or Washington, except for the 1911 Water-power Act in Cali- fornia, set forth at the end of this chapter.) This method arose in Wyoming, 1 and is, with the administrative law centering about the office of the State Engineer, called "the Wyoming system." It is based on the original principles set forth in the preceding chapter, merely adapting them to a methodical system of filings and records. In the main, the essentials of this method consist in (1) an application for a permit; (2) an examina- tion thereof and issuance of permit; (3) provisions governing the prosecution of the work; (4) issuance of a certificate of appro- priation on completion of the work; (5) numbering of the certi- 1 See Pool v. Utah etc. Co., 36 Utah, 508, 105 Pac. 289. 436 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 409 ficates successively according to the date of the application for permit, and dating priority by relation to that date. In some States the matter is carried one step further, providing for the actual application and beneficial use of the water before the final certificate issues. This method must be followed whatever the purpose of the appropriation whether for irrigation or other uses. The method' prescribed sometimes applies likewise to changing or enlarging an appropriation, or else a similar method is specially provided; while in Colorado a change of point of diversion must be made in a method similar to that provided for determination of priorities. 2 Whether necessary for an irrigator to own or locate land under these statutes before appropriating has been discussed elsewhere. 3 Reference should also be made to later chapters upon Adminis- trative Systems and Adjudication of Rights. 4 (3d ed.) 409. Authority of State Engineer. These statutes give the State Engineer a general authority over the making of appropria- tions (except in Colorado where the office is merely to receive and keep filings, without power of rejection). 5 As between private parties the State legislature has power to confer this authority upon the State Engineer. 6 This authority exists over riparian owners as well as others in States rejecting riparian rights. 7 What will be their effect upon riparian owners in States upholding riparian rights is elsewhere considered. 8 As considered in another place, the power of the State Engi- neer is held to be ministerial, and hence the statutes are not unconstitutional as conferring upon him judicial powers ; and like- wise his acts may be contested in court like those of any adminis- 2 Infra, e. 22, change of mode of 1889, p. 372, sec. 3, requiring approval enjoyment. of State Engineer for dams over ten 3 Supra, sec. 282; infra, sec. 509. feet high. 4 Infra, Part VI. 6 Idaho etc. Co. v. Stephenson 5 The first Colorado act for maps (Idaho, 1909), 16 Idaho, 418, 101 and filings was held unconstitutional Pac. 821. because of a defective title. Lamar As to how far this State legislation etc. Co. v. Amity etc. Co., 26 Colo. 370, will prevail on public lands should 77 Am. St. Rep. 261, 38 Pac. 600; Congress hereafter pass statutes upon Rio Grande etc. Co. v. Prairie etc. the matter, reference is made to a pre- Co., 27 Colo. 225, 60 Pac. 726; Beaver ceding chapter. Supra, sees. 151-187. etc. Co. v. St. Vrain etc. Co., 6 Colo. 7 Idaho etc. Co. v. Stephenson, 16 App. 130, 40 Pac. 1066. See Colo. Idaho, 418, 101 Pac. 821. Rev. Stats. 1908, see. 3323, laws 8 Supra, see. 126. 410,411 Ch. 18. HOW APPROPRIATED STATE CODES. (3ded.) 437 trative officer acting in excess of authority. Not only may a party aggrieved by his decision appeal therefrom in the method provided by the statute, but he may be heard in court in the other usual ways, such as by injunction against the permit holder. The action of the State Engineer is held not to control the courts further than the acts of other administrative officers. Reference in this regard is made to a later chapter. 9 (3d ed.) 410. Vested Rights Protected. A permit from the State Engineer is of no avail against existing owners if it infringes their rights. Holders of such infringing permits may be enjoined; the permit grants nothing as to them. In this regard, also, reference is made to a later chapter, where the matter is considered in chief and authorities cited. 10 (3d ed.) 411. Exclusiveness of the Statutory Method. Under the original method of appropriating, discussed in the last chapter, the statutory method by posting notice is not exclusive ; an appro- priation by actual diversion without notice may be as valid as one with notice. Will this principle be applied under the new water-code method? The statutes for applications and filings have been held in Colorado n not to apply to a ditch taking water from an exist- ing ditch ; 12 nor to apply between rivals neither of whom has made filings, holding it no defense to a wrongdoer (at least one diverting the water in another State) that plaintiff has not com- plied with the laws for filings and other matters, so long as plaintiff was in possession of the water for beneficial use. Pos- session is enough against a wrongdoer showing no better right. 13 In the Federal court for Montana, construing Wyoming law, the court also applies the rule of appropriation by actual diver- sion, though Wyoming to-day ha's these statutes varying from the California method, which seem to negative this. Judge Whitson supports appropriation by actual diversion on prin- ciple, saying that actual diversion is as much notice to later 9 See infra, Part VI, where the mat- 12 Water Supply Co. y. Larimer etc. ter is considered in chief and author- Co., 24 Colo. 322, 51 'Pac. 496, 46 ities cited. See especially sec. 1192 L. R. A. 322. et seq. 13 Hoge v. Eaton, 135 Fed. 411, and Infra Part VI esoeciallv sec cf ' Morris v ' Bean ' 146 Fed " 425 ' ' ' P affirmed in 159 Fed. 651. 86 C. C. A. 519; Denver Co. v. Dotson (Colo.), 20 " Under sec. 2265, M. A. S. Colo. 304, 38 Pac. 322. 438 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 411 comers as is the statutory notice or the application for permit. 14 In Idaho and Utah it has been left open "whether the right to appropriate water from the streams of this State can be acquired in any method other than that pointed out by the statute. ' ' 15 These holdings seem to follow in the line of cases cited in the preceding chapter upholding appropriations by actual diversion. It is probable that the new statutes intended to prevent that. The older statutes, based on the California Civil Code, were merely to regulate the doctrine of relation, while the new stat- utes described in this chapter are not limited to that purpose, and seem to aim at a comprehensive and exclusive method of appropriating. But it would seem necessarily, upon general principles of law, that between two parties, neither of whom has a permit, prior possession must prevail, at least until one or the other is approved by the State Engineer. 16 That, also, was the basic principle upon which the law of appropriation originally arose upon public lands, where neither party had a patent from the United States. 17 These new statutes, consequently, may. pos- sibly come to be construed in conformity with the old decisions, so that the new method of appropriating will differ from the original one in form only, and not in substance. Other exceptions are that the statutes requiring permit do not a Pply to rights initiated (though not completed) before the acts were passed, but such rights are governed by the law at the time of their initiation ; 18 nor do they, in South Dakota, apply to "dry draws" flowing less than twenty miner's inches, as to which the old method of posting and recording notice remains ; 19 nor do they apply in New Mexico to water-tanks or wells for water- ing stock. 20 And it has been held in general terms that they apply only to watercourses and not to diffused surface or percolat- 14 Morris v. Bean (Mont.), 146 permit a crime. Then, being in pari Fed. 425, affirmed in 159 Fed. 651, 86' delicto, neither could get relief. C. C. A. 519, affd. in - - U. S. , 17 Supra, sec. 82 et seq. May 29 1911 Followed in Nielsen v. 18 g Lockwood v . Freema n, 15 Parker (Idaho, 1911), 115 Pac. 488. gg ^ The But statutes usually say: Rights uteg ( hems ' elves usuall go provide; shall be acquired under this act and g _ utah L&wg ^J c * g4 not otherwise"; and fees for permit > Qr 1Q > 216, sec. 70 would otherwise be lost by the State. , , '_ 15 Speer v. Stephenson (1909), 16 Idaho, 707, 102 Pac. 365. See Sow- 19 S. D. Stats. 1907, c. 180, sec. 31, ards v. Meagher (Utah, 1910), 108 Stats. 1911 c. 263, p. 468. So in Pac 1113 Idaho, of lakes on private land under W infra, sec. 626 et seq.; except five acres. Stats. 1911, c. 230. where statute makes diversion without 2 <> N. M. Stats. 1909, p. 149. 412 Ch. 18. HOW APPROPRIATED STATE CODES. (3d ed.) 439 ing water ; 21 and that the State Engineer has no control over waters until they enter his State. 21 * (M ed.) 412. Application for Permit. In all these States application in duplicate must be filed with the authorities. In all but one the application must be made before beginning any work. The exception is Colorado, where it must be filed within sixty days after beginning. The application is filed with the State Engineer. The form for these applications is usually furnished by the State Engineer, and in most of the States must be sworn to. It con- tains a statement of the plan of the work, the details of descrip- tion required varying in the different States. Duplicate maps must accompany the application in Colorado, 22 Idaho, and Wyoming, and in most of these States. In four, however, the filing of maps is postponed until after the approval of the applica- tion. 23 If applicant is a corporation, the application must con- tain matters in description of the corporation also. In all, great discretion is allowed the State Engineer in calling for additional information. It is in all the duty of the State Engineer (Board of Irrigation in Nebraska) to examine the application. For the statutory provisions, reference is made to Part VIII of this book. 24 Special provisions usually appear for large dams and reservoirs, some examples of which are given in the note; and usually the statutes go into considerable detail. 25 A permit is required of all appropriators (even of riparian owners, in States rejecting riparian rights), and even if a power-house is put in the stream itself and involves no other diversion. In order to apply the water sought to be appropriated to a beneficial use, it was held necessary to change it from the way that it would naturally flow down said stream, and that the act of the legislature was intended to and does cover all such 21 Vanderwork v. Hewes (N. M.), 24 Infra, Part VIII. 110 Pac. 567. 25 Colorado. Special provisions for A special statute in Nebraska re- reservoirs having a capacity of over quires permit of State Engineer in seventy-five million cubic feet, etc., drainage of lakes. Neb. Stats. 1909, are contained in 3 M. A. S., 1905 ed., p. 525. 2270a et seq., 2286d et seq., M. A. m i -n /-vr \ 11 A S., 2270. Dams over ten feet in Pac 27S 'LI' ^^34^' "a hei ^ ht re <* uire a PP roval of State En- ,e supra, sec. 6 *q. gineer Rey gtatg igQ ^ ge(j 3 2 The duplicate must be recorded. Laws 1889) p 372> sec 3 The same applies to enlargements. Nebraska. Dams over ten feet high 23 Infra, sec. 418. require approval of State board. 440 (3ded.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 412 cases. 1 "Whenever its natural condition is changed, and it is taken from its natural flow in the stream and applied to a beneficial use, the law steps in and provides the procedure and the things to be done and the fees to be paid in perfecting its appropria- tion." 2 The statutes usually expressly declare that making filings of maps or applications does not alone constitute an appropriation (and beginning work under them is made criminal), if not approved by the proper officials, nor if not followed, when approved, by the succeeding requisites, prosecution of the work, and actual completion as the statutes may require. 3 This is in accord with the rule under the original method of appropriation set forth in the previous chapter. 4 Forms for applications and filings are* given at the end of this book. Concerning the practical operation of applications and filings, the following is quoted from Bulletin 168 of the Office of Exper- iment Stations of the United States Department of Agriculture: Idaho. "Most of the applications made have to be returned to the applicants for correction, and as a rule they are corrected in accordance with the suggestions of the engineer and returned. Many applicants employ attorneys to make out their papers, but Comp. Stats. 1903, sees. 6447, 6464; Cobbey's Ann. Stats., sec. 6792. North Dakota. Stats. 1905, c. 34, sec. 19, concerning dams over thirty feet in height. Utah. Stats. 1905, c. 108. A special provision covers the building of dams (in sections 3 to 10). Duplicate plans, etc., for any dam over five feet in height across the natural chan- nel of a running stream, or any other dam over ten feet, shall be submitted to the State Engineer for his ap- proval; one copy to be returned with his approval or disapproval. Failure of persons to comply with this re- quirement is a misdemeanor. The work must be done under the super- vision of the State Engineer. Wyoming. Concerning dams over five feet in height, -Rev. Stats., 931, and Stats. 1903, p. 74, c. 69. l Idaho etc. Co. v. Stephenson (1909), 16 Idaho, 418, 101 Pae. 821; Speer v. Stephenson (1909), 16 Idaho, 707, 102 Pac. 365. , 2 Idaho etc. Co. v. Stephenson (1909), 16 Idaho, 418, 101 Pac. 821. 3 Sowards v. Meagher (Utah, 1910), 108 Pac. 1113. Consult, generally, Jarvis v. State Bank, 22 Colo. 309, 55 Am. St. Rep. 129, 45 Pac. 505 ; United States v. Rickey, 164 Fed. 496; Ras- mussen v. Blust, 83 Neb. 678, 120 N. W. 184;.Conley v. Dyer, 43 Colo. 22, 95 Pac. 304; Whalon v. North Platte etc. Co. (Wyo.), 71 Pac. 995; Pool v. Utah etc. Co., 36 Utah, 508, 105 Pac. 289. 4 "We think the filing of a written application with the State Engineer, as required by the statute, is but de- claring, or the giving of a notic'e of, an intention to appropriate unappro- priated public water." Sowards v. Meagher (Utah, 1910), 108 Pac. 1113. 413 Ch. 18. HOW APPBOPRIATED STATE CODES. (3d ed.) 441 as a rule these do not meet the requirements any better than the others." Wyoming. "Although a blank on which to make this application is furnished by the office, nearly one-half of those received have to be returned for correction Parties, who have no well- defined idea of constructing ditches file applications for permits simply because it costs nothing The tendency of recording speculative filings is only one of the evils. The more aggravating one is the carelessness with which many of the statements are pre- pared." (3d ed.) 413. Fees and Royalties. Filing fees must be paid tho State Engineer by the applicant according to the schedule con- tained in the statutes. 5 In an Idaho case the plaintiff constructed a dam across Snake River at a point near where its power-house is situated, placed its power-house on a rock foundation or small island in the channel of the river, and placed its penstock in the river, and conducted the water from the dam to its water-wheels. It was held that plaintiff is required to pay the same fees it would have to pay if it had diverted the water frpm its dam by a ditch or flume and carried it for a distance on the bank of the river and then turned it into its penstock, and through that on to its water-wheels and back into the river; that the legislature did not intend to exempt from the operations of said act the per- son or corporation or riparian owner that placed its power-house in the bed of the stream itself. 6 In Utah a statute exempts the United States Reclamation Service from payment of fees. The Oregon Statute of 1909 7 contains the first State require- ment of payment in the nature of a license tax or royalty. 8 It appears that the Oregon State Engineer requires a deposit of these fees in advance, accompanying the application for a permit. 9 5 Infra, Part VIII, "Statutes." 5tf far 100-1,000 acres. 6 Idaho etc. Co. v. Stephenson 1^ for 1,000 acres and over. (1909), 16 Idaho, 418, 101 Pac. 821. p . schedule is- 7 Given in the part of this book containing statutes, infra, Part VIII. Graduated fees based upon capacity l*v for 100-1,000 II. P. or size of the works now exist in some 5 v f r 1,000-2,000 H. P. other States. E. g., Utah Stats. 1911, 2 ? for 2 > 00 ' H - p - an as amd - in 1911 > c - 64 also works of United States, State, or (House Bill 123). municipalities. In Utah the State Engineer rules 10 See statutes in Part VIIT, below. that applications resubmitted after 11 Young v. Hinderlider (N. M.), the expiration of sixty days will be 415 Ch. 18. HOW APPROPRIATED STATE CODES. (3d ed.) 443 Upon a contest, the statutes usually provide an appeal from the decision of the State Engineer to court. 13 But his decision is open to collateral inquiry in court without such appeal, it has been held, since, as elsewhere considered, 14 the proceeding before the State Engineer to contest a permit is administrative and not judicial in its nature. In one case the proceeding is dis- tinguished from actions brought in the courts because the pro- ceeding before the State Engineer is informal; the rules of evi- dence do not apply; the State Engineer is authorized to make personal examination, and may be governed thereby; no injury to the petitioner or his property is required to be alleged or proved; the action does not result in the issuance of any writ or process known to the law, and the proceeding is held adminis- trative to aid in carrying out and administering the law regulating and governing the appropriation and application of water to a beneficial use, not judicial in character or effect. Consequently this case held that under the Idaho statute requir- ing notice to be sent by the State Engineer to interested parties, since the proceeding is not of the binding nature of judicial proceedings, it is sufficient to send notices to the last post- office address which such parties have left with the State Engineer, and is sufficient if sent by registered mail, and need not be sent to assignees or transferees of permits when such transfers do not appear on the State Engineer's records. 15 (3d ed.) 415. Rejection of Applications. An example of the pro- vision for refusal of applications is the following: "If, in the opinion of the State Engineer, there is no unappropriated water treated as new applications in all re- difficulty in the latter holding is spects. See Sess. Laws Utah 1907, whether it would not open the con- sec. 36, c. 156. See Poole v. Utah verse of the usual question, and make etc. Co., 36 Utah, 508, 105 Pac. 289. the statute unconstitutional as plac- In New Mexico, appropriations in- ing administrative duties upon judicial itiatecl under the act of 1907 are officers. granted an extension of time by the 14 Infra, sees. 1192, 1194. Statutes of 1909, page 374. 15 Speer v. Stephenson (1909), 16 13 Whether an appeal from him to Idaho, 707, 102 Pac. 365, saying: "To court, as allowed by statute, is a require that notice should be given to judicial suit, quaere. So held in all assignees or transferees of the Waha Co. v. Lewiston Co. (Idaho), permit when no system is provided for 158 Fed. 137. But in Willey v. recording the same or method pro- Decker, 11 Wyo. 496, 100 Am. St. Tided by which the assignees or trans- Rep. 939, 73 Pac. 210, it was held ferees could be ascertained would be not a judicial suit, but a continuation demanding of the office an impossible of the administrative hearing. A task." 444 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 415 available, he shall reject such application. He shall decline to order the publication of notice of any application which does not comply with the requirements of the law and the rules and regulations thereunder. He may also refuse to consider or approve an application or order the publication of notice thereof, if, in his opinion, the approval thereof would be con- trary to the public interest. ' ' 16 Some States, following Colorado, provide that the right to' appropriate unappropriated water "shall never be denied." 17 It has been questioned how far the State Engineer's refusal to issue a permit is binding under such a provision. 18 Some States provide that "it shall be the duty of the State Engineer to ap- prove all applications made in proper form which contemplate the application of water to a beneficial use." 18a The Wyom- ing declaration modified this by providing that no appropriation shall be denied "except when such denial is demanded by the public interests." 19 And the more recent statutes contain the general power of denial given in the example first quoted, in which "public interest" is merely one of the grounds for denial. 20 Power of denial on the ground of public interest has recently been extensively used by the Territorial Engineer of New Mexico. In November, 1910, he rejected twelve applications (the total number then pending) to appropriate upon the Pecos River, conflicting with the plans of the United States Reclama- tion Service. In Young v. Hinderlider 21 an application for an irrigation project financed by outside capital was contested by local capital which subsequently applied for the same project on the ground that it was more in the public interest to have 18 S. D. Stats. 1907, c. 180, sec. 23. is not for the most beneficial use of 17 Colo. Const., art. 16, sec. 6. See the water. Utah Laws 1911, c. 103, list supra, sees. 108, 109. See stat- p. 143, amending Comp. Laws of 1907, utes in Part VIII, below. sees. 1288x5 and 1288x10,, and amend- is See Speer v. Stephenson (1909), ing Laws of 1909, c. 62. See Or. 16 Idaho, 707, 102 Pac. 365. Stats. 1911, e. 224, p. 404. iSa E. g., Idaho Rev. Codes, sec. w Wyo. Const., art. 8, sec. 3. 3254, as amd. by Stats. 1911, c. 64 20 See supra, sec. 313. (House Bill 123). A Utah statute 21 N M., 110 Pac. 1045. A recent of this year provides that the State Oregon ease rules that the State En- Engineer must approve all applica- gineer may reject as against public tions except where they will conflict interest, an irrigation project that with existing rights, or where, after could be better handled under the submission of the question to court, Carey Act. Cookinham v. Lewis the court decides that the application (Or.), 114 Pac. 88. 415 Ch. 18. HOW APPROPRIATED STATE CODES. (3d ed.) 445 the work owned by local than by outside men and for other reasons. The supreme court of New Mexico held that the public interest referred to in the statute is not confined to cases of menace to health or safety, and that the question of what is the public interest was not one of law, but of fact for the trial court. The case is very interesting. Public interest is much a matter of individual opinion, upon which philosophers and statesmen have disagreed from time immemorial. The State Engineer had rejected the first and approved the second applica- tion; the board of water commissioners, to which appeal was taken, reversed him and upheld the original application on the ground that it was first made, and it is to the public interest to uphold the law of prior appropriation and to invite and give security to the investment of outside capital, and that the local applicants were not financially equal to the undertaking; the trial court, to whom appeal was then taken, affirmed the board of water commissioners; the supreme court, upon appeal to it, held that it was a question of fact what constituted public interest, and considered that the trial court had taken a proper view of the public interest upon the facts presented, but remanded the case to give contestants an opportunity to offer further evidence in proof of what the public interest really was in the matter. A late Oregon statute gives the State Engineer power to reject applications for use outside the State if the outside State refuses diversions for use in Oregon ; but otherwise requires him to approve all applications for use outside the State. 218 The statutes usually expressly allow appeal to the courts from a State Engineer's rejection of an application. 22 As above noted, this is held not to exclude taking the question to court in the other usual ways of testing the action of administrative officials. The late Utah statute cited above requires rejections on the ground that the use applied for is not the most beneficial one possible, to be submitted to court by the State Engineer in the first instance, be- fore the rejection can take effect, and the conservation commission 2ia Or. Stats. 1911, e. 224, p. 404. days after notice of rejection) ; Utah 22 E. g., Idaho Stats. 1903, p. 223, Comp. Laws 1907, sec. 1288x10, sec. 12; X. D. Stats. 1905, c. 34, sec. amended in Laws 1909, c. 62, p. 84; 23; Nev. Stats. 1907, p. 30, sec. 27 Utah Comp. Laws 1907, sec. 1288x14. (must be commenced within sixtj 446 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 416 is to inquire and report upon what uses of streams are most in the public interest. 22 * (3d ed.) 416. Same. Concerning the rejection of applications in practice it is said in Bulletin 168, United States Department of Agriculture (published in 1906) : Idaho. "As has been shown in the previous pages, there is no provision for securing a complete list of all rights to water from any stream, and without such a list neither the engineer nor the applicant can tell from the records whether there is unappropriated water in any stream. In many cases it will, of course, be a matter of common knowledge that a stream is or is not fully appropriated, and there may be little danger of injustice so far as the applicant is concerned. ' ' 23 Nebraska. "The rejection of applications seems to be much more common in Nebraska than in the other States. The report of the secretary for 1899 and 1900 states 24 that in those two years two hundred and ten applications were allowed and one hundred and twenty-six dismissed. In the succeeding two years seventy-four were allowed and seventeen dismissed. The right of the board to reject applications has never been passed upon by the courts. In the one case of appeal from the secretary this question was not passed upon. This right has been denied in Utah and Idaho 25 and in Wyoming is seldom exercised. ' ' Wyoming. "While the engineer has authority to reject an ap- plication when there is no unappropriated water in the source of supply mentioned in the application, and this has sometimes been done, it is not the usual practice. There is usually some flood water, and always the possibility of an increased supply from seepage or more economical use by the holders of prior rights, and consequently permits are frequently granted when the records of the engineer's office show little unappropriated water Since the adoption of the present system of acquiring rights a number of canals have- been built without complying with the law regarding making ap- plication to the State Engineer. ' ' 1 22a Utah Stats. 1911, ee. 103, 137. 25 See pages 53, 69. 23 This is the reason usually given 1 It is, however, the practice in in support of the old rule for appro- Wyoming to deal with the matter by priation by actual diversion. sending a notification to the applicant, 24 Page 9. declaring, "The records of the State 416 Ch. 18. HOW APPROPRIATED STATE CODES. (3ded.) 447 General. "Wyoming, the pioneer State in providing for the public supervision of the acquirement of rights, gives the engineer authority to reject applications which are contrary to public policy. This has been followed by most of the States which have adopted codes in recent years. This provision is so general in its terms that it may be interpreted to mean much or little. In Wyoming the exercise of this authority has given him a great deal of trouble. The engineer of Nevada holds that this provision gives him no authority to reject applications which conform to the general rules of the office. The Utah engineer held that this provision gave him authority to choose between possible uses and refused an application for a use which in his opinion was not for the best possible use of the water. Appeal was taken to the courts, the engineer was over- ruled in this matter, and at the next session of the legislature the law was repealed. In the other States which have adopted this provision the law is not effective. It appears, therefore, that this law is either ineffective or unpopular with both the engineers and the public The flow of a stream is not fixed, but increases and decreases from year to year, the flow in the latter part of the season almost universally increasing as the lands along its banks are irrigated, while the water requirements of land under irrigation have a tendency to decrease. The engineer is not, therefore, in a Engineer's office show the waters of the later permits cannot interfere .... to be largely appropriated. with the earlier rights. I do not know The appropriator under this permit is whether other States have encountered hereby notified of this fact and that the same problems we have here or the issuance of this permit grants not. Each month we receive appli- only the right to divert and use the cations which provide for the recla- surplus or waste water of the stream, mation of the same tract of land. In and confers no rights which will in- cases of this kind it would seem that terfere with or impair the use of some public officer should have some water by prior appropriators." And discretion in the issuance of the per- the State Engineer of Wyoming takes mit. Under the law we can examine exception to the statements contained the financial standing of the various in the Department Bulletin. In a applicants, scrutinize the plans sub- communication to the author he says : mitted by each, and issue the permit "Here in Wyoming applications are which seems to provide for the best not rejected unless the plans are methods of construction, which we faulty or the lands to be irrigated believe is in the interests of the pub- conflict with other permits. On some lie. This procedure appears to me streams we request parties to provide as being much wiser than to issue con- stored water before permits are is- flicting permits, and to allow the con- sued, but we realize that the flow of struction companies to engage in per- streams fluctuates throughout the year, petual warfare, duplicating ditches and that the total discharge of streams and reservoirs, and thus increasing the is different from one year to another. price of water-rights." (From a let- Applications are, therefore, not re- ter to the author under date of Au- jected because of the water supply. gust 31, 1908.) The principal reason for this is that 448 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 417 position to state that there is at any time no unappropriated water in a stream to which rights can be acquired." Since this was written, some statutory changes have been made, as already noted. (3d ed.) 417. Nature of a Permit. A permit is the equivalent of the notice posted under the original method. "As a substitute for the notice thus provided for, the legislature in 1903 provided that a person or corporation contemplating the appropriation of water should make application to the State Engineer, and receive a permit from him to construct certain works and appro- priate and apply the water to a beneficial use. The permit thus provided for took the place of the posting of notice as required under the act prior to 1903, and merely gave the applicant an inchoate right which could ripen into a legal and complete appropriation only upon the completion of the works and the application of the water to a beneficial use. The right given by the permit is merely a contingent right, which may ripen into a complete appropriation, or may be defeated by the fail- ure of the holder to comply with the requirements of the statute. The permit, therefore, is not an appropriation of the public waters of the State. It is not real property under the statute." 2 The court holds: "A permit, however, is the consent given by the State to construct and acquire real property." 3 Permits may be sold or assigned; and the purchaser thereof will succeed to the rights under the permit. 4 The assignment is usually required to be recorded in the office of the State Engineer. Filings under an unconstitutional statute are void. 5 A veri- fied statement filed and introduced in evidence is not evidence 2 Speer v. Stephenson (1909), 16 8 Speer v. Stephenson, supra. Idaho, 707, 102 Pac. 365, citing Rev. 4 g Stenhenson suvra Codes, sec. 3056 ; Ada County Farm- ^^ ^^SSTSi S^U T?V, 70^' arm Gon %"? S^'A Wyo. 313, 71 Pac. 995. See, also, Idaho, 793, 51 Pac. 990, 40 L. R. A. TT J , n *r n * ra IQA-T . WOQ^IT 48 ^ SPP also Sowards v Meae-her Utah Com P- Laws ld '> sec - 1288x1 1, 480. oee, aiso, oowarus v. meagner ompn^pH hv TJIWSI 1QOQ P fi2 n 84 (Utah, 1910), 108 Pac. 1113; Pool v. am l by **** i9Uy ' C> bZ ' p> 84> Utah etc. Co., 36 Utah, 508, 105 Pac. 5 Great Plains etc. Co. v. Lamar 289; Whalon v. North Platte etc. Co., etc. Co., 31 Colo. 96, 71 Pac. 1119; 11 Wyo. 313, 71 Pae. 995. Lamar etc. Co. v. Amity etc. Co., 26 Compare supra, sec. 376, under the Colo. 370, 77 Am. St. Rep. 261, 58 original method; and infra, sec. 433 Pac. 600; Mohl v. Lamar Canal Co., et seq., under the Federal Right of 128 Fed. 776. Way Acts. 418 Ch. 18. HOW APPROPRIATED STATE CODES. (3d ed.) 449 of title, and cannot be held to be constructive notice of the existence of such ditch, if the statute under which the same was filed has been declared unconstitutional. 6 A permit when issued is not conclusive of the holder's right, which is open to contest in court by any injured party as set forth in the preceding sections. 7 (3d ed.) 418. 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 Colorado maps must be filed within sixty days after beginning work. In Texas, within ninety days. In Nebraska, Nevada 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 appli- cation. 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 days; if over that capacity, a bond must be filed within sixty days in an amount fixed by the State Engineer not exceeding $10,000. 8 The Blake v. Boye, 38 Colo. 55, 88 and provide for 1,496.31 miles of main Pac. 470, 8 L. R. A., N. S., 418. canal and ditches. The total esti- " The former State Engineer of mated cost is $5,012,549. During the Wyoming, Mr. Clarence T. Johnston, a two years ended September 30, 1906, pioneer in this field, says in a letter 1127 permits were issued for new to the author: "The permit when ditches. These permits describe a issued is simply a privilege given by total of 1,315,011.87 acres of land to the public, which owns the water, to be reclaimed and provide for 2,083.16 someone who proposes to make a bene- miles of main canals and ditches. The ficial use thereof. A permit protects total estimated cost of construction is a party while construction is in prog- $4,427,275.40. "Three hundred and ress and while the lands are being forty-three reservoir permits have been reclaimed. If the party holding the issued during the same period. Only permit fails to comply with its pro- 575 reservoir permits had been issued visions, it is canceled. If work is in the fourteen years preceding during carried on under the provisions of the which the law has been in operation." permit, the division superintendent 8 Stats. 1903, p. 223, sees. 2, 3, as makes an inspection, takes the testi- arc-ended 1905, p. 357 ; Rev. Codes, sec. mony of the water-user under the 3254, as amd. by Stats. 1911, e. 64, permit and submits the same to the (House Bill 123). "The provision State Board of Control, which issues for filing bond conditioned on com- tlie final certificate of appropriation." pletion of the work was enacted in In Wyoming during 1905 and 1906, 1905, and there has been little op- 346 enlargement permits were issued. portunity to observe its workings. These describe 462,206.74 acres of land Its natural result will be to prevent Water Rights 29 50 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 418 work must be completed, in Idaho, North Dakota, Oklahoma, 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 Engineer may name a shorter time. In Idaho, North Dakota, Oklahoma, South Dakota and Utah 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 9 specify the same requirement in the absence of statute upon the point. In Nevada an affidavit must be filed with the State Engineer within thirty days after the time required by such permit for the commencement of work there- under, stating the time when, the place where, and the amount of such work which has been done under said permit. 10 Proof of completion of the work must be made. In Idaho and Utah, for example, there are special methods for making this proof. In the former it must be filed with the State Engi- neer on a form provided by him, and, if the works exceed a capacity 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 certificate of completion. In Utah, a sworn statement and proof must be filed with the State Engi- neer on a form provided 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 dis- cretion 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 Territories, 11 where the final certificate is not issued until a'ctual application of the water to a beneficial use, and Colorado, where the first certi- ficate (issued on original application to appropriate) ends the appropriator's connection with the office of the State Engineer. The appropriator must pay specified fees. filings for the purpose of blocking 9 See statutes and forms in Part some other enterprise or for the pur- IX, below. pose of selling worthless 'rights' based 10 Nev. Stats. 1909, p. 31. only on a permit from the engineer." H Idaho, North Dakota, Oklahoma, Bulletin 168, U. S. Dept. Agric. and South Dakota. 419 Ch. 18. HOW APPROPRIATED STATE CODES. (3ded.) 451 It is enacted in Idaho that one who fails to be on time with the work, proofs, etc., "shall be deemed to have abandoned all right under his permit." 11 * The statutes which stop at completion of work regard actual use as not entering into making the appropriation, but as mat- ter subsequent, nonuse operating by way of abandonment or forfeiture, in accordance with the possessory theory of the law of appropriation. 12 References to the statutes are given in Part VIII of this book. (3d ed.) 419. Cancellation of Permits for Failure of Work. The statutes usually give the State Engineer power to cancel permits for failure to comply with the above conditions regarding prosecution of work. Some rulings in that regard have been made by the courts. 13 It has been held that if the State Engi- neer revokes a permit for failure of one-fifth of work, and an appeal is taken from him to the State court, the case is not really an appeal but becomes a judicial suit, and is removable to the Federal courts. 14 In Idaho it is held that the effect given by the statute to the action of the State Engineer in canceling or refusing to cancel a permit is that such action is thereby fixed as a time from which the statute of limitations begins to run against a suit in the district court, or against an appeal ; but that it does not pre- vent such action entirely, the court saying that : ' ' Hearing the con- test and canceling the permit are pure matters of administration. He is in no way authorized to decide or determine what rights, if any, the permit holder has acquired under the permit, or by virtue of any acts taken in connection with the construction of the works authorized by the permit, or the diversion or appropriation of water in connection therewith." 15 In Utah it is held that the State Engineer may extend the time for completion of work as often as he sees fit, and under such Ha Idaho Rev. Codes, sec. 3254, as Idaho, 707, 102 Pac. 365; Idaho Co. amd. by Stats. 1911, c. 64 (House v. Stephenson, 16 Idaho, 418. 101 Bill 123). Pac. 821; Pool v. Utah Co., 36 Utah, 12 See supra, sec. 139. 508, 105 Pac. 289; Sowards v. 13 See, generally, Trade Dollar Co. Meagher (Utah), 108 Pac. 1113; Van- v. Eraser, 148 Fed. 587, 79 C. C. A. derwork v. Hewes (N. M.), 110 Pac. 37; Waha Co. v. Lewiston Co., 158 567. Fed. 137; Lockwood v. Freeman, 15 14 Waha Co. v. Lewiston Co. Idaho, 395, 98 Pac. 295; City of (Idaho), 158 Fed. 137. Pocatello v. Boss, 15 Idaho, 1, 96 15 Speer v. Stephenson, 16 Idaho, Pae. 120; Speer v. Stephenson, 16 707, 102 Pac. 365. 452 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 420 conditions as he may require, up to the maximum time limit fixed by the statute. Short of such maximum, he may regard any time fixed by him for the work as provisional only. 16 In this case the State Engineer granted a permit to appropriate water for power, and fixed a time for completion, and then, before that time expired, granted a second permit to another for the same purpose and stream. The former, though working diligently, did not finish within the time stated and inadvertently failed, when the time expired, to apply for an extension, but secured one from the State Engineer soon after, and worked thence diligently to actual com- pletion of the work, investing large capital. It was held that the former prevailed ; that as the statute did not expressly make time work a forfeiture, the State Engineer had power by extension of time to save the first claimant's rights against the second appli- cant, though the extension was granted after the. original time limit had expired. In effect, this is a holding that the right on completion relates back (as to priority against other claimants) to the date of application, 'if the work is done diligently, and if the State Engineer, in his discretion, does not declare the con- trary; that, in the absence of positive action by the State En- gineer to the contrary, the old law as to relating back to com- mencement of work applies. 17 Since this decision the Utah statutes were amended to provide that cancellation can be made only after an order to show cause and a hearing. 18 (3d ed.) 420. 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 original application for a permit, thus preserving the doctrine of relation, which was one of the chief 16 Questioning, however, whether, tion of law, and has discretion to ex- after the cessation of work amounts tend it in other cases also to a total of to an abandonment, the State En- not exceeding fourteen years from gineer could extend the time as approval of application ; or he may de- against an intervening applicant for clare a forfeiture. Within sixty days the same water. after his decision any party may bring 17 Pool v. Utah etc. Co. (Utah, suit to have the matter tried in court. 1909), 105 Pac. 289. See, also, Sow- Utah Laws 1911, c. 3, p. 2, amending ards v. Meagher (Utah, 1910), 108 Comp. Laws of 1907, sec. 1288x14. Pac. 1113. See, also, Stats. 1911, c. 103, p. 143, 18 Sixty days' notice must be given, and Stats. 1909, c. 68. p. 84. See, and the State Engineer must extend also, Idaho Stats. 1909, p. 300, sec. the time if delay was caused by opera- 223. 421 Ch. 18. HOW APPROPRIATED STATE CODES. (3d ed.) 453 features of the law of appropriation as it originally arose in Cali- fornia. Upon the proof of completion of work the State Engineer issues a certificate to the appropriator under his seal stating details varying in different States. A record of this is made in his office. The appropriator is required to record this with the recorder or county clerk 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. In Colorado, the approval of the original application constitutes the only certificate issued. 19 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. Protests 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 States. 20 In Oregon, certificates issued for rights to the use of water for power development acquired under the provisions of this act shall limit the right or franchise to a period of forty years from date of application, subject to a preference right of renewal. 21 (3d ed.) 421. Date of Right. The doctrine of "relation," as it arose under the original method of appropriating water, is preserved by making the right date from the filing, with the State Engineer, of the application to appropriate. 22 This is evidenced by num- 3 M. A. S., 1905 ed., sees. 2265a, Nevada. Stats. 1907, p. 30, sec. 29. e i * -D 4. ^TTTT v i North Dakota Stats. 1905, p. 274, See statutes in Part VIII, below. 1 9 , n 21 Or. Stats. 1909, c. 216, sec. 53. 22 For example (the list is not com- Oregon. Stats. 1909, c. 216, sec. 54. Pl So.-Stats. 1903, p. 223, sec. 8; South Dalcota.-Stzt*. 1905, p. 201, Stats. 1907, p. 314. ' cs ' Z ' M ' Nebraska. Comp. Stats. 1903, sec. Utah. Stats. 1905, c. 108, see. 46, 6439; Cobbey's Ann. Stats., sec. 6785; and subsequent statutes. Laws 1895, c. 69, p. 254, see. 31. Wyoming. Eev. Stats., sec. 929. 454 (3d ed.) Pt. HI. THE LAW OF PRIOR APPROPRIATION. 422 bering all certificates consecutively. One holding a permit will, by relation back, prevail over another who commenced work earlier without a permit. 23 In Idaho, on enlargement or on a grant of extra time, priority dates from the application for permission to make such enlarge- ment or to have such extra time. 24 The formality attending appropriation under these statutes is not unlikely to somewhat hinder any but large enterprises, and tend somewhat to prevent small appropriators from acquiring rights. Evidently it is intended that large companies shall be formed to supply consumers, rather than that consumers should supply themselves directly, as heretofore. 25 (3d ed.) 422. California Water-power Act of 1911. In 1911 Cali- fornia adopted a statute applying the Wyoming system to water- power appropriations. 1 A Board of Control is created of five members (with the gov- ernor and the State Engineer as ex-officio members), until a pub- lic service commission is created, after which the latter is to act, and the Board of Control shall cease to exist (section 20). Refer- ence should also be made to other 1911 California statutes, creat- ing a'department of engineering, 2 a conservation commission, 3 and proposing a constitutional amendment to create a State public ser- vice commission. 4 Before commencing (or enlarging) work to develop power, one must apply to the board for a permit (section 6), stating details pre- scribed in section 7, with maps and other data prescribed by the board. A copy of the application must, within ten days after filing, be also recorded in the office of the recorder of the county where the proposed works are to be erected (section 7). The board may return the application to be corrected, and priority is re- tained if the application is returned to the applicant within thirty days. The board may reject the project within six months, if it 23 Whalon v. North Platte etc. Co., l Stats. 1911, c. 406. See, also, 11 Wyo. 313, 71 Pac. 995. Ibid., c. 407, amending Civ* Code, sec. 24 Stats. 1903, p. 223-, sees. 5, 8; 1410; and Ibid., c. 730, amending but see Stats. 1907, p. 314, and Rev. Civ. Code, sec. 1416. ?m d f' S !5- ,i 2M a |>-^o^ by StatS> 2 Cal. Stats. 1911, c. 409. 1911, c. 64 (House Bill 123). 25 "The present law is destined to 3 Cal. Stats. 1911, c. 408. be a great aid in the construction of . ~ , Q , . inni , extensive canals." Bulletin 168, U. * Cal. Stats. 1911, Senate Amend- S. Dept. Agric. ments > c ' 60 ' 422 Ch. 18. HOW APPROPRIATED STATE CODES. (3ded.) 455 deems that . public interest so demands. Approval or rejection is indorsed upon the application and it is returned to the applicant. If approved, he is to record it in the office of the county recorder where the works lie, and may then proceed (section 9). Work must begin within six (6) months from approval and be prosecuted with diligence, or the board may revoke its approval. The work must be completed in a time fixed in the permit, not exceeding five years, unless, for cause, the board extends the time not over one (1) year more (section 10). Upon completion, if satisfactory to the board, it issues a license for a term not over twenty-five years, the contents of the license being specified in section 13. Renewal may be applied for in the next to last year before expiration, and is to be granted for another term of not over twenty-five years, under such laws as may then be in force. , The amount of water granted is limited by actual use (section 8), and by capacity of works (section 16). The water-right does not vest until final permit (section 9). Licenses are to be num- bered consecutively as to each stream or other source, according to date of filing application (section 12). Licenses are subject to fees and charges, viz., ten ($10) dollars upon filing application, and one hundred ($100) dollars upon receiving a license; and thereafter annually ten (10) cents per theoretical horse-power in excess of one hundred (100) horse-power. These charges can be increased or decreased by the board at any time (section 18). Annual reports must be made to the Board of Control (section 26). Section 28 contains an anti-trust clause similar to that in Federal permits below set forth. Violations of this act, or of the board's orders, is a crime (section 29). From the operation of the act are excepted municipal corpora-' tions, irrigation districts generating' electricity for use within the district, and lighting districts (section 30). Nor shall the act im- pair existing rights (section 14). Another act of the same year prohibits extraction of minerals from waters without obtaining a State permit, but does not pro- vide any method for obtaining a permit. 5 These acts are printed in full in the collection of statutes in Part VIII, below. Reference should also be made to the Forest Service requirements in the next chapter. 3 Cal. Stats. 1911, c. 454. A method for mineral waters on State lands is provided in Stats. 1911, c. 612. 456 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 423 (3d ed.) 423. Federal Requirements. The preceding rules are com- plete in themselves, and if on public land, the right thus acquired under local law is secured to the appropriator, so far as Federal legislation is concerned, by the act of 1866, now sections 2339, 2340, Revised Statutes of the United States. But the Federal de- partments are building a new system based upon rights of way, in numerous matters affecting the foregoing, especially within the forest reserves, as considered in the next chapter. 424-429. (Blank numbers.) 430 Ch. 19. HOW APPROPRIATED FEDERAL SYSTEM. (3ded.) 457 CHAPTER 19. HOW AN APPROPRIATION IS MADE NEW FEDERAL SYSTEM. 430. Introductory. A. RULES OF THE FOEEST SEEVICE FOB RIGHTS OF WAY, ETC. 431. Rules for rights of way, etc. 432. Revocable Forest Service permits. B. FEDERAL RIGHT OF WAY ACTS. 433. Appropriations under the Federal Right of Way Acts. 434. Nature of rights acquired under the Right of Way Acts. 435. The doctrine of relation. 436. Bonds, stipulations and royalties. 437. Forfeiture. 438. Conflicts with settlers. 438a. Water-power regulations of 1911 of the Forest Service. C. RELATION OF THE NEW FEDERAL SYSTEM TO THE ACT OF 1866 AND LOCAL LAW. 439. Upon reserved land. 440. Upon unreserved land. 441. Recent tendency away from the act of 1866. 442. Conclusion. 443-451. (Blank numbers.) (3d ed.) 430. The foregoing systems of local law are based (at least so far as they involve rights of way) upon the act of Congress of 1866. 1 But the Forest Service considers that the act of 1866 and local law do not govern within the forest reserves, which now cover much of the Western area containing streams. The forest system of control over access to the streams, 2 through rights of way and reservoir sites, is affecting the foregoing local method of acquiring rights upon reserved public land and substituting the following Federal system, which is gradually being extended also to unre- served public land. We here consider the rules now being worked out by the Forest Service and General Land Office. The departments regard this system as applying to changing old works as well as to building new ones. 1 U. S. Rev. Stats., sees. 2339, 2340. 2 Supra, sees. 54, 225. 458 (3ded.) Pt. III. -THE LAW OF PRIOR APPROPRIATION. 431 A. RULES OF THE FOREST SERVICE FOR RIGHTS OF WAY, ETC. (3d ed.) 431. Rules for Rights of Way, etc. Forest Service require- ments for rights of way are published in the Use Book issued by the Forest Service. 3 A*s below considered, vested easements may be obtained for irrigation, mining (power?), and municipal enterprises. But there are delay, expense and formality in obtaining them. The individual farmer, prospector, or settler does not, the writer is informed, avail himself thereof; and they cannot be obtained for any pur- pose other than just named. Consequently, to people living within the forests, as a rule, the following apply: The act of Congress of June 4, 1897, 4 creating the Forest Service, provides: ''The Secretary .... may make such rules and regulations .... as will insure the objects of said reserva- tions, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction"; and upon this authority, the Service will grant ''special use" permits under the general authority to make rules and regulations within the reserved areas. Such permits are granted for any purpose at the discre- tion of the forester, and under such terms as he may designate; and this may include permits for irrigation, mining, municipal or power purposes where the claimant does not proceed under the special acts below mentioned. Application is required to be made to the local forest supervisor. A charge for the permit or any renewal thereof will be made (excepting, so far as concerns us here, irrigation, mining, municipal or sawmill plants), and applicants must, "before a permit is issued, make all required pay- ments and agree that any necessary construction work will com- mence within some definitely stated time ; that the work will be completed within a certain period, and that beneficial use of the permit will be made for at least a certain stated period each year. Such time is to be reckoned from the date the permit is issued." Being revocable, such permits are probably destroyed by home- stead, mining or other locations passing the fee, as well as by act of the forest officers. 3 The following is taken from the other uses is now in preparation, but "Use Book" for 1908. See, also, not yet issued. "Water Power Use Book of 1911," * 30 Stat. 11. infra, sec. 438a. A new Use Book for 432 Ch. 19. HOW APPROPRIATED FEDERAL SYSTEM. (3ded.)459 (3d ed.) 432. Revocable Forest Service Permits. The following are some of the rules in the Use Book of 1908 : 5 "Reg. 6. Permits are necessary for all occupancy, uses, opera- tions, or enterprises of any kind within national forests, whether begun before or after the national forest was established, except: (a) Upon patented lands; (b) upon valid claims for purposes necessary to their actual development and consistent with their character; (c) upon rights of way amounting to easements for the purposes named in the grants; (d) prospecting for minerals, transient camping, hunting, fishing, and surveying for lawful projects. "Reg. 7. Permits for the use of the national forests, unless otherwise specifically fixed by regulation, may be granted by the forester for any term consistent with national forest interests. .The forester may also make a reasonable charge for any permit, right, or" use. (Preference in the use of national forest lands and resources will be given to local residents.) "Reg. 8. Permits are not assignable, and abandonment in favor of another necessitates new application and permit. In case of abandonment and issuance of new permit, the original permittee may sell his improvements to the new permittee, and any payments made by him may apply on the new permit, in the discretion of the forester. "Reg. 9. Occupancy under permit secures no right or claim against the United States, either to the land or to any improve- ments upon it, beyond the uses conferred by the permit. Im- provements made by the permittee, except fences, may not be removed except with the written consent of the supervisor. ' ' Reg. 10. Renewals rest in the discretion of the forester. Reg. 11. Forbids, among other things, the construction of ditches, dams, canals, pipe-lines, flumes, tunnels or reservoirs without a permit or in violation of the terms of a permit "except as allowed by law and national forest regulations, and except upon patented land or upon a valid claim for the actual develop- ment of such claim, consistent with the purposes for which it was initiated." These revocable permits appear to be the general practice for people living in the mountains, the aim being that the Federal 5 See the new power regulations, infra, sec. 438a. 460 (3d ed.) Pt. III. THE LAW OF PBIOB APPBOPEIATIOX. 433 government should no longer allow fee simple rights if it can be avoided. 6 It had been contended that the Forest Service requirements were laws rather than regulations, and exceeded the power conferred by Congress, or that Congress could confer; that if regulations, the Constitution ** requires them to be made by Congress itself, and that if laws, Congress cannot delegate its law-making power to executive officers. The rules were held valid for civil purposes in a number of cases, 6b and also sustained in criminal prosecutions in a number of cases, 6 " while some other cases held them invalid upon the grounds stated. 7 Their validity has now been established by the supreme court of the United States in two rulings just handed down. 8 B. FEDERAL BIGHT OF WAY ACTS. (3d ed.) 433. Applications Under the Federal Right of Way Acts. The foregoing general revocable permit system has been built upon the clause in the act of 1897, above quoted, for making rules and regulations to preserve the reservations. There are also acts of Congress specifically applying to rights of way and reservoir sites within reserved land; chiefly the acts of March 3, 1891, February 15, 1901, and February 1, 1905, and March 4, 1911. These, and others, are quoted below. 9 A considerable body of regu- lations has been adopted by the departments, and for further de- tails the reader should make application to the Forest Service for the "Use Book" and to the Land Office for "Regulations Concern- ing Rights of Way. ' ' There is little to be found in the statutes or decisions. All that the writer has been able to discover of such nature is collected in the following sections. "I do not believe that a single 156 Fed. 687; United States r. Biz- acre of our public lands should here- zinelli, 182 Fed. 675. after pass into private ownership ex- 7 United States v. Blasingame, 116 cept for the single purpose of home- Fed. 654; United States v. Matthews, stead settlement." Speech of Theo- 146 Fed. 306 ; Dent v. United States, dore Boosevelt, at Denver, Colo., Aug. 8 Ariz. 138, 71 Pac. 920; United States 29, 1910. v. Grimaud, 170 Fed. 205. 6a Article 4, sec. 3. 8 Grimaud v. United States, 31 Sup. 6b Dastervignes v. United States, Ct. Sep. 480 (May. 1, 1911) ; Light v. 122 Fed. 30. 58 C. C. A. 346; United United States, 31 Sup. Ct. Bep. 485 States v. Dastervignes, 118 Fed. 199; (May 1, 1911). Upon first argument United States v. Shannon, 151 Fed. the court had been divided and no de- 863; Same v. Same, 160 Fed. 870. cision had been reached. United See, also. 38 Land Dee. 67. States v. India, 216 U. S. 614, 30 Sup. 6c United States v. Deguirro, 152 Ct. Bep. 576, 54 L. Ed. 639. Fed. 568; United States v. Domingo, 9 Infra, sec. 1428, Federal statutes. 152 Fed. 566; United States v. Bale, 433 Ch. 19. HOW APPROPRIATED FEDERAL SYSTEM. (3ded.) 461 Under these acts, the appropriates must comply with the State law for acquiring water-rights 10 (how far he must comply with State law regarding rights of way is considered below), and fur- ther, must file with the Secretary of Interior a copy of its articles of incorporation (if a corporation), and also maps and statements describing the proposed right of way, and these must be approved by the Secretary of the Interior, who will hear protests from other parties before giving his approval. (Upon reserved land, he must file also with the chief of the reserved department, as hereafter considered.) Maps may be received of canals already constructed at the time of the passage of the act, as well as new canals. 11 If an application is made under the wrong act, it may be considered under such act as it might properly come under. 12 The acts do not apply to Alaska. 13 The Secretary of the In- terior has ruled that he may make withdrawals of land from operation of the Right of Way Act of March Z, 1891. 14 Upon unsurveyed land, the supreme court of New Mexico has held that the act of March 3, 1891, does not require filings, nor approval by officials, and a right vests upon completion of work (as under the act of 1866) ; filings being sufficiently timely if 10 "While these acts grant rights of vice Water Power Use Book" says: way over the public lands necessary "Occupancy and use of national for- to the maintenance and use of ditches, est lands is the sole privilege granted canals and reservoirs, the control of under a water-power permit. In the the flow and use of the water is, so issuance of such permits no attempt far as this act is concerned, vested in will be made to adjudicate water- the States or Territories, the juris- rights since water-rights are acquired diction of the Department of the In- under State laws and adjudicated by terior being limited to the approval of the courts. Therefore, no protests maps carrying the right of way over against the granting of an applica- the public lands. If the right of way tion, if based upon alleged lack of applied for under this act in any water-rights, will be considered; nor, wise involves the appropriation of in general, will any allegation that the natural sources of water supply, the time of beginning or completion of damming of rivers, or the use of construction has been, or is delayed lakes, the maps should be accompanied by litigation over water-rights be ac- by proof that the plans and purposes cepted as a sufficient reason for grant- of the projectors have been regularly ing any extensions of time." submitted and approved in accord- n 15 Land Dec 578 ance with the local laws or customs 12 Northern Cal p ' QweT c 3? governing the use of water in the ^ d D &Q x c } W / C o., State or Territory in which such right ^ Land D * Applications can^ of way is located. No general rule b ffl . th / s p ig CQm . can be adopted in regard to this mat- Anderson v. Spencer, 38 Land ter. Each case must rest upon the showing filed." Circular of Land Office Regarding Rights of Way, ap- 26 Land Dec. 305; 35 Land Dec. proved June 6, 1908. Reg. L. 5 of the new "Forest Ser- 1* 39 Land Dec. 105. 462 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 434 made within twelve months after the government has surveyed the land. 15 In the year 1909-10, reports on applications for rights of way over public domain for reservoirs, canals, ditches, etc., were ren- dered on two hundred and twenty-nine applications, forty-one of which were adverse and one hundred and eighty-eight were favorable. 15 * (3d ed.) 434. Nature of the Right Acquired Under the Right of Way Acts. Under the act of 1891 for irrigation, the estate acquired is a vested easement or base fee during beneficial use. 16 Only irrigation companies were within the terms of the act of 1891, 17 and the Secretary of the Interior refused to approve filings of companies seeking to build canals for electric lighting, water power, 18 or city water supply, 19 or floating lumber, 20 or domestic, manufacturing or hydraulic purposes. 21 By the act of May 11, 1898, irrigation companies are permitted to make filings though they also proposed other subsidiary uses, if the subsidiary uses is United States v. Lee (N. M.), 110 Pac. 607. I5a Report of 1910 of Commissioner of the General Land Office, p. 9. 16 38 Land Dec. 211; 38 Land Dee. 493; 37 Land Dec. 6; Whitmore v. Pleasant Valley Co., 27 Utah, 284, 75 Pac. 748; Nippel v. Forker, 9 Colo. App. 106, 47 Pac. 766; Same v. Same, 26 Colo. 74, 56 Pac. 577; United States v. Whitney (Idaho), 176 Fed. 593; Rasmussen v. Blust (1909), 85 Neb. 198, 133 Am. St. Rep. 650, 122 N. W. 862; United States v. Lee (N. M.), 110 Pac. 607. "The right granted is not in the nature of a grant of lands, but is a base or qualified fee. The possession and right of use of the lands are given for the purposes contemplated by law, but a reversionary interest remains in the United States, to be conveyed by it to the person to whom the land may be patented, whose rights will be subject to those of the grantee of the right of way." Regulations of June 6, 1908, pp. 4, 5. "The act of March 3, 1891, is gen- eral and permanent in its character, and operates continuously to convey the title to public lands to all persons complying with its provisions." United States v. Whitney (Idaho), 176 Fed. 593, saying the act is in this similar to the Railway Right of Way Act of March 3, 1875, and cit- ing cases. A similar comparison to the Railway Act is made in United States v. Lee (N. M.), 110 Pac. 607; De Weese v. Henry Inv. Co., 39 Land Dec. 27. See, as to the Railway Act, Rio Grande etc. Co. v. Stringham (Utah), 110 Pac. 868, holding that on approval by the Secretary of the In- terior of the profile of a proposed railroad through public lands in ac- cordance with act of March 3, 1875, the title to the right of way vested in the railroad company, and a subse- quent patent of land including the right of way, though not made sub- ject thereto, did not devest the title so acquired. See, also, Minidoka Co. v. Weymouth (Idaho), 113 Pac. 455. 17 32 Land Dec. 452. 18 18 Land Dec. 573. 19 20 Land Dec. 154, 464. 20 21 Land Dec. 63. 21 25 Land Dec. 344. 434 Ch.19. HOW APPROPRIATED FEDERAL SYSTEM. (3ded.) 463 are of a public nature, 22 but the original application must still be primarily for irrigation. 23 Under the act of 1905 for municipal or mining purposes the estate acquired is also a vested easement or base fee, like the act of 1891. 24 But it was ruled by the departments that only irriga- tion, municipal and mining purposes are covered by the foregoing acts, and that vested rights could be acquired for no other purpose. Other purposes (of which "commercial power purposes" is the most important) were considered only under the act of 1901. 25 Under the act of 1901, the right acquired is considered to give only a permit revocable at will by the forester or other depart- ment head, 1 and probably revoked by subsequent homestead, mining or other title to the fee. 2 The revocable character of the estate under the act of 1901 is illustrated by revocations under 22 32 Land Dec. 462; 35 Land Dec. 154. . 23 32 Land Dec. 462. 24 Circular of Land Office, infra; Use Book of Forest Service for 1908, pp. 67, 68; see, also, 37 Land Dec. 80, saying it is unnecessary there to decide. "The right granted is not in the nature of a grant of lands, but as a base or qualified fee, giving the pos- session and right of use of the land for the purposes contemplated by the act, during the period of beneficial use. When the use ceases, the right terminates, and thereupon proper steps will be taken to revoke the grant. No right whatever is given to take any material, earth or stone for construc- tion or other purposes, nor is any right given to use any land outside of what is actually necessary for the construction and maintenance of the works." Regulations concerning rights of way; approved June 6, 1908, sec. 48, under A. C. February 1, 1905 (33 Stat. 628). 25 The act of May 11, 1898, amend- ing the act of 1891, is ambiguous regarding how far irrigation rights may be used for other purposes of a public nature, and the departments rule that commercial power companies come only under the act of February 15, 1901, and not under either 1891 or 1905, e^en though they propose to furnish power to irrigators who pump water for irrigation (Kern River Co., 38 Land Dec. 302). To come under the act of 1891 or 1905 the power use must be only incidental, and not the main object of the en- terprise (Inyo Consolidated Water Co., 37 Land Dec. 78; Northern Cal. Power Co., 37 Land Dec. 80; Kern River Co., 38 Land Dec. 302). 1 Ibid., and 31 Land Dec. 13; 32 Land Dec. 461. Before the Senate Committee on Public Lands, February 16, 1910, Mr. Garfield spoke of this act of 1901, and said: "The amendments which we sug- gest clear away the difficulty that has arisen in administering that act, by authorizing a lease good for fifty years, instead of a revocable permit, which is the only kind of permit that can be issued under the law as it stands to-day." 2 There is some contention that it is discretionary with the departments to bring all uses under the revocable permit system of 1901 and that the act of 1891 be declared repealed by that of 1901, thereby making irriga- tion rights of way revocable, and bringing irrigation under Federal in- stead of State control. The supreme court of New Mexico held that the act of March 3, 1891, is not repealed by the act of 1901. United States v. Lee (N. M.), 110 Pac. 607. See 39 Land Dec. 105. 464 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 435 Secretary Garfield. 3 By an act approved March 4, 1911, the de- partment head is authorized to grant a fifty year easement for power development. (This act may be availed of by persons previ- ously holding revocable permits, as well as new projects.) (3d ed.) 435. The Doctrine of Relation. Under the acts granting easements, it is not yet settled at what point of time vesting of the right occurs. Against the United States, upon unsurveyed land, it has been held that the right vests upon completion of work, filings being unnecessary until twelve months after government survey is made, whereupon approval of the Secretary is simply confirmation of existing right. 4 But the United States may withdraw the land under withdrawal act of Congress any time before completion; that is, the right does not relate back to beginning of work as against the United States ; the doctrine of relation does not apply against the United States so as to prevent withdrawing the land before completion, for the Reclamation Service 5 or for a national park. 6 Upon surveyed land, or between rival private parties, until ap- proval, the filings give no vested right. 7 But the general view seems to be that the right vests when there is an approval. 8 It has been said to vest upon approval even before beginning work ; 9 3 The following is the statement * United States v. Lee (N: M.), 110 appearing in 192 North American Pac. 607. Review, 495, in an article criticising 5 United States v. Rickey, 164 Fed. the action: 496, permitting such withdrawal be- " . . . . Two days before Mr. Gar- fore completion of work though after field was to go out of office, there was approval of application, issued a list of what is called the 6 Sierra D. & W. Co., 38 Land Dec. 'Decisions of March 2, 1909,' by which 547, permitting such withdrawal while 'Permits issued by the Secretary of application was pending but before the Interior under act of February approval of application. 15, 1901,' were revoked. This list 7 De Weese v. Henry Inv. Co., 39 covers forty different plants. The Land Dec. 27. names of these plants are withheld, 8 Authorities cited supra with re- because it would only serve to compli- gard to the nature of the estate, and cate titles, but it is worth while to infra as to the necessity for action know that these revocations were is- to declare a forfeiture. But see 37 'sued without advising with, or grant- Land Dec. 6, to the effect that ap- ing any hearing whatsoever to, the rep- proval under the act of 1891 gives no resentatives of any of the water-power right where work was never begun companies. Some of the plants had thereunder. been completed and were in operation, 9 Rasmussen v. Blust (1909), 85 and upon others hundreds of thou- Neb. 198, 133 Am. St. Rep. 650, 122 sands of dollars had been, expended." N. W. 862. 436 Ch. 19. HOW APPEOPBIATED FEDERAL SYSTEM. (3ded.) 465 though it -has also been held that the right does not vest until work has been actually completed. 10 The last ruling is more in line with the previous local laws, which held the right to vest upon completion of work only, then relating back to posting of notice or filing of application with the State Engineer; 11 but rulings of the land office and the authorities generally are to the effect that the estate vests upon approval of the application, sub- ject only to action in court to declare a forfeiture for failing to complete the work within the time allowed. 12 Between rival claimants, the first in activity, and not the first in making filings, is first in right to the Secretary of the Interior's approval. 13 When vested, it dates, to determine priority between rival claimants, from the beginning of the survey, and not from filing application in the land office. 14 The grant under the act of 1891 includes a width up to fifty feet (only so much as is necessary) on each side of the center line of the canal. It also includes the right to use adjacent materials (timber, stone, etc.) in constructing the canal, but this applies only to the original construction, and not to additions or repairs. 15 What is "adjacent" depends upon the facts of each case. 16 The approval of filings under the act of 1891 gives no exclusive right to a canyon or defile, and a right of way may also be granted, if practicable, to other parties. 17 (3d ed.) 436. Bonds, Stipulations and Royalties. The Forest Service at present does not charge for "special use permits" for irriga- tion, mining, municipal or sawmill uses, but this does not neces- sarily indicate no charge hereafter. In any event, it charges all persons for wood cut in clearing, etc. In case of large enterprises for any purpose, bonds and stipu- lations are required, a copy thereof being printed below in the 10 United States v. Rickey, 164 Fed. land office diligently made, and will 496, and see 37 Land Dec. 6. prevail over a rival applicant begin- 11 Supra, sees. 393 et seq., 421. ning a survey three days later but 12 Infra, sec. 437. getting his application first on file in 13 D e Weese v. Henry Inv. Co., 39 the land office. Anderson v. Spencer, Land Dec. 27. 38 Land Dec. 338. See, also, United 14 It was ruled that, under the States v. Lee (N. M.), 110 Pac. 607. acts of 1891 and 1901, priority for 15 34 Land Dec. 213; 14 Land Dec. the right of -way relates back to the 566. beginning of the survey, if work was W 28 Land Dec. 439. diligently done and application in the 17 35 Land Dec. 637. Water Rights 30 466 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 436 part of this book relating to forms. The power to-do this is deduced from the discretion to refuse entirely. If the permit or easement may be entirely refused, it is ruled that it may be granted upon any condition. 18 The bonds cover payment for timber cut or injured; 19 and, in the case of power companies, royalties to the United States and (it was proposed) stipulations as to rates to be charged, and for control of the power plant by the forest officer. 20 An elaborate set of stipulations was made in the revocable permit to San Francisco for a municipal water plant. 21 In the case of railways over power sites, a ruling for- merly required a stipulation to move the tracks when required to do so by the Federal department ; but the present ruling is that either the railway permit will b granted absolutely, or the land will be withdrawn absolutely for conservation. 22 These requirements are, as yet, based upon the general statutes giving the officials discretion to make rules and regulations or to refuse permits. They are not, as yet, contained in more specific statutory form. It is contended, on the authority of United States v. Gratiot, 23 that Congress may enact them specifically, and further may provide a general leasing system for disposal of the public lands. These requirements are as yet further confined mostly to the forest domain. In national parks one Secretary of Interior ruled that no rights of any kind would be granted to private enterprises. 24 The previous secretary had granted a per- mit through Yosemite Park to a city for water supply, 1 but its revocation remains under consideration. In a previous case, how- ever, rights had been granted in the Sequoia National Park, and a charge by way of royalty was imposed of two and one-half per cent of the gross receipts; and in the Coeur D'Alene Indian Reservation the Interior Department imposed a royalty charge. 2 Further consideration is given in a following section. 3 18 United States v. Bailey (S. D.), railway located since 1890, which de- 178 Fed. 302. partment ruling is disapproved in 19 Ibid. Minidoka Co. v. Weymouth (Idaho), 20 See 26 Op. Atty. Gen. 421, where 113 Pac. 455. Attorney General Bonaparte advised 23 14 p e t 526 10 L Ed 573 in favor of the power to make these 24 ^^ B allinger in Sierra D. stipulations. Stipulations as to rates & w Q 38 ' Land D * 547 to be charged seem to be omitted in ' the new form below considered. l Mr - Garfield in City of San Fran- 21 City of San Francisco, 36 Land C1SCO > 36 Land Dec. 409. Dec. 409. 2 Mr. Garfield before the Senate 22 39 Land Dec. 86, 89, 209. See, Committee on Public Lands, February also, 36 Land Dec. 482, as to United 16, 1910. States Reclamation Service ditch over 3 Infra, sec. 438a. 437 Ch. 19. HOW APPROPEIATED FEDERAL SYSTEM. (3ded.) 467 So far as these Federal contracts control service to the public of a State, reference is made to a later chapter. 4 (3d ed.) 437. Forfeiture. Under the act of 1891, applying to irriga- tion, the work must be completed within five years; 5 under the act of 1897, applying to livestock reservoirs, the work must be completed within two years. 6 Under the act of March 4, 1911, for power, the period is two years. If not completed on time, the Interior Department cannot extend the time to the disadvantage of an intervening adverse claim ; 7 nor, on the other hand, can the Interior Department itself declare a forfeiture, since it is ruled that, by approval by application, a vested right has passed, and the Interior Department loses jurisdiction, nor can the Interior Department treat it as null and approve another person's appli- cation for the same reservoir site; but the Interior Department will have suit brought in court to declare the forfeiture. 8 The same is ruled where application has been approved by mistake. 9 The suit may be brought by the attorney general of the United States 10 without special act of Congress so instructing, and without the necessity for an act expressly declaring the forfeiture by congressional action. 11 Between private parties, perhaps, the privileges will be held forfeited in a State court in a suit between 4 Infra, sees. 1260 et seq., 1323. 266, 30 Sup. Ct. Rep. 97, 54 L. Ed. 5AC. March 3. 1891, sec. 20. 19 - a A n -d u iQ 100-7 oo , . ing with the State corporation laws. .. 26 . The following letter to the an- 38 T a 1 D r 74 thor is printed here with permission: See United States v. Conrad Inv. "Office of the Forester. Co., 156 Fed. 123, seeming to regard the act of 1866 as still in force on "Washington, February 11, 1910. reserved land, so far as the dam is "Your letter of January 4th is re- not so placed as to interfere with gov- ceived. The questions you propound ernment occupancy (p. 128; but see concerning the effect of the act of p. 131). ' See, also, Denver Co. v. Ry. 1866 (U. S. Rev. Stats., sees. 2339, Co., 30 Colo. 204, 69 Pac. 568, 60 L. 2340) are recognized here as pecu- Rv A. 383. liarly difficult ones 25 United States v. Hydro-Electric "The act of 1866 does not in terms Co. (report of Master in Chancery H. apply to reserves of any kind. The M. Wright, Oct. 17, 1910), ruling free and uncontrolled location of that a power right of way, though rights of way for ditches, etc., is crossing only a small corner of a inconsistent with the proper control forest reserve, cannot be acquired ex- and regulation of national forests by 474 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 440 In California, concerning appropriation in national reserves, it is provided 1 that the notice of appropriation shall state that the appropriation is within such reserve, and the claimant shall then make and diligently prosecute an application to the Federal authorities for a permit, and shall commence work within sixty days after obtaining it, and prosecute the work thence diligently to completion under the Federal regulations. In other words. California has left the entire matter of acquisition of rights of way within forest reserves (whether the act of 1866 were there in force or not) with the Forest Service. 2 Hence cases arising in California do not actually involve the question how far the act of 1866 is in force within reserves. (3d ed.) 440. Upon Unreserved Land. Acts creating reservations or authorizing withdrawals of course would not be an implied repeal of the act of 1866 for unreserved or unwithdrawn land. As to such land there is nevertheless some contention, under stress of the recent change of Federal policy from "development" to "conservation," that an implied repeal exists there also, owing to the right of way acts passed since 1866. At present, however, the weight of authority is against the contention. the department. The act of 1891, which does apply to reserves, pro- vides, with reference to irrigation rights of way, that they shall not 'be so located as to interfere with the proper occupation by the govern- ment of any such reservation.' The act of June 4, 1897 (30 Stat. 11), which we call the Forest Administra- tive Act, authorizes the Secretary of the Interior (now Agriculture) to 'make such rules and regulations and establish such service as will insure the objects of such reservation, namely, to regulate their occupancy and use and to preserve the forest thereon from destruction.' These and other statutory provisions, especially as construed by Attorneys General Moody and Bonaparte (22 Op. 13, 26 Op. 421), show a legislative intent that the creation of a national forest shall remove the lands embraced therein from the operation of the right of way provisions of the act of 1866. "The Forest Service has no juris- diction over unreserved lands, and, of course, has had no occasion to form an opinion as to whether the act of 1866 remains in force thereon. "I may say further that this de- partment some time ago, in determin- ing questions coming before it, reached the conclusion that the act of 1866 does not authorize the use of the lands of the United States for the conveyance of water for the genera- tion of electricity for commercial power purposes. We hold that such a purpose was not then contemplated by Congress and, besides, under estab- lished rules of construction, is not within the terms of the grant. More recently the Department of the In- terior in two cases reached the same conclusion. [Citing rulings below quoted.] "Very truly yours, "HENRY S. GRAVES, Forester." 1 Civ. Code, sec. 1422. 2 See Wishon v. Globe etc. Co., 158 Oal. 137, 110 Pac. 290. 440 Ch. 19. HOW APPROPRIATED FEDEBAL SYSTEM. (3ded.) 475 The later Eight of Way Act of 1891 was, at the time of its passage, intended to aid large enterprises by providing an alter- native and securer method than the act of 1866 afforded. The act of 1866 made the grant upon simply taking possession under local law. The later act gave capital the additional security of a Federal record and documentary title, without making this obligatory upon appropriators ; for ordinary purposes the act of 1866 was generally accepted at the time, and for large installations additional security was to be accorded. While Congress has never attempted to grant patents to water-rights, there is, in the later Right of Way Acts, some approach to carrying to patent, as con- cerns right of way, the grant contained in the act of 1866, but not displacing that act as a grant in cases of small enterprises, nor, in fact, any enterprises which were satisfied to rest under the con- firmation contained in the act of 1866, without going to patent. This history is traced fully in the historical chapters. The supreme court of New Mexico recently said: 3 "It has long been the policy of the government to encourage irrigation in the arid and semi- arid West. Congress in its wisdom has enacted such laws as will enable rights of way to be acquired for such irrigation works over the public lands, and thus encourage the development of the coun- try. The tendency has been toward more liberal laws in that re- gard, and it is a matter of common knowledge that in this territory it has been the custom for years to enter on the unsurveyed public lands of the United States and construct such ditches, canals, pipe- lines, and reservoirs as were necessary to put the waters of the streams to a beneficial use for agricultural and kindred purposes. .... It would appear as a serious step backward to now hold that such irrigation systems could not be constructed and rights of way acquired upon unsurveyed land without first seeking the consent of the Secretary of the Interior, thus involving long and tedious de- lays, which in such cases would be absolutely unavoidable under the law." Consequently for unreserved land it is ruled that failure to comply with the later Right of Way Acts merely results in a loss of the additional privileges; the right of way or reservoir site nevertheless vests (subject to local law) under the act of 1866, 3 United States v. Lee (N. M.), 1891. See, also, supra, ce. 5, 6; es- 110 Pac. 607, a case arising under pecially see. 92 et seq. the Right of Way Act of March 3, 476 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 440 whether the ditch was built before the passage of the later act, 4 or after, 5 or even if filings were attempted under a later act but re- jected by the Land Office. 6 For unreserved land the history and the present state of the authorities is that the later Right of Way Acts are only cumulative to the act of 1866 without displacing it; that the right of way still vests (when the local law has been complied with) under the grant contained in the act of 1866, if the appropriator does not insist upon the added privileges of the later acts. In a ruling of the Interior Department rendered some years ago it is held that the rights of claimants under section 2339 of the Revised Statutes are not dependent upon the later Right of Way Acts, nor upon an approval of such maps or filings as are re- quired by the act of March 3, 1891. "The act of March 3, 1891, in respect to this, was primarily to extend to such claimants the right to place their claims of record with the Land Department 4 Lincoln etc. Co. v. Big Sandy Co., 32 Land Dec. 463. The claim under Revised Statutes, 2339, was for a ditch built prior to the act of 1891. 5 In Cottonwood etc. Co. v. Thorn (1909), 39 Mont. 115, 104 Pac. 281 (S. C., 101 Pac. 825, indicates that the ditch was built after 1891), the Montana court said, per Mr. Justice Smith, that the act of 1866, "granted a right of way for the construction of ditches across the public domain, and that the respondent's rights, ac- quired by virtue thereof, were not forfeited by a failure to comply with the provisions of the act of 1891." 6 Rasmussen . v. Blust (1909), 85 Neb. 198, 133 Am. St. Rep. 650, 122 N. W. 862. The point was left open in United States v. Rickey, 164 Fed. 496, where it was held that a reservoir site could not be acquired under the act of 1866 after the site is expressly reserved by the United States from entry. Among other rulings of the Depart- ment of Interior it has been laid down that the act of 1866 was not repealed by the later right of way acts (spe- cifically, the act of 1891), Re Cache Valley Co.. 16 Land Dec. 192, 196; and that filings under the later acts (specifically the act of 1891) add nothing to a right of way confirmed under the act of 1866 (Silver Lake etc. Co. v. City of Los Angeles, 37 Land Dec. 152); and that the differ- ence between the act of 1866 and the act of 1891 is that the latter requires approval by an official before begin- ning work, while the former requires no official's approval, but merely "ac- knowledges and confirms" after the work is actually completed. Re Mc- Millan Reservoir Site, 37 Land Dec. 6. See generally, Silver Lake etc. Co. v. City of Los Angeles, 37 Land Dec. 152; Re McMillan Reservoir Site, 37 Land Dec. 6; Lincoln etc. Co. v. Sandy etc. Co., 32 Land Dec. 463; Re Santa Fe etc. R. R. Co., 29 Land Dee. 213; Re South Platte etc. Co., 20 Land Dec. 155; Re Cache Valley Co., 16 Land Dec. 192; Re Pecos Irr. etc. Co., 15 Land Dec. 470, 578; Bald- ridge etc. Co. v. Leon etc. Co., 20 Colo. App. 518, 80 Pac. 477; Whitmore v. Pleasant Valley Co., 27 Utah, 284, 75 Pac. 748; Nippel v. Forker, 9 Colo. App. 106, 47 Pac. 766; S. C., 26 Colo. 74, 56 Pac. 577; United States v. Con- rad Inv. Co., 156 Fed. 123; United States v. Rickey, 164 Fed. 496; Cot- tonwood D. Co. v. Thorn, 39 Mont. 115, 101 Pac. 825; Same v. Same. 104 Pac. 281 ; Rasmussen v. Blust, 85 Neb. 198, 133 Am. St. Rep. 650, 122 IN. W. 862; United States v. Lee (N. M.), 110 Pac. 607. 441 Ch. 19. HOW APPROPRIATED FEDEBAL SYSTEM. (3ded.) 477 for their better protection. It may be, too, that it enlarged the privileges conferred by section 2339 of the Revised Statutes, in that it gave the right to the use of fifty feet of land on each side of the marginal limits of canals, ditches and reservoirs a privilege not carried by said section but however this may be, it surely did not operate to make the continued enjoyment of rights conferred by said section dependent upon the filing of the maps provided for in the act." Ca (3d ed.) 441. Recent Tendency Away from the Act of 1866. But the policy of development under local law enacted by the act of 1866 is inconsistent with the policy of Federal conservation as instituted by Mr. Pinchot and the Forest Service. Consequently the contention first mentioned (that the act of 1866 is not in force for unreserved land any more than for reserved land) is gathering force in the Land Office. 7 Recently the Interior Department has ruled that the .act of 1866 never applied initially (neither upon reserved nor unreserved land) to rights of way for power pur- poses. 8 Heretofore the rulings of half a century under the act 6a Lincoln Co. v. Big Sandy Co., supra. 7 The writer received the following letter from the General Land Office a few years ago: "General Land Office, "Washington, D. C., March 26, 1908. "In reply to your letter of March 12, 1908, you are advised that the question as to whether rights of way may be obtained under Sections 2339 and 2340 of the Eevised Statutes since the passage of the act of March 3, 1891 (26 Stat. 1095), apparently has not been decided specifically by the Department, bat it may be in a short time. "It is better for the applicant in every case who contemplates construct- ing works for irrigation, etc., in- volving a large expenditure of money to have some record evidence of his right of way, such as is the case when applications are filed under the provi- sions of the right of way acts. No more definite information as to whether parties must file under the act of 1891 or whether they may construct and obtain rights under said sections can be given at this time. For regulations under the act of March 3, 1891, see Vol. 34 of the Land Decisions, page 212. "Very respectfully, '^S. V. PROUDFIT, "Assistant Commissioner." 8 In Kern Eiver Co., 38 Land Dec. 302, the Land Office ruled: "It is too obvious for argument that in 1866, the date of the original act consti- tuting this law, Congress did not con- template power companies because they were not in existence at that time." In Sierra Buttes Co., Nov. 19, 1909 (not officially reported), the act of 1866 is said to be restricted mainly to mining uses, relying upon a passage in Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240, 4 Morr. Min. Rep. 504, where the court had merely held that the act of 1866 conferred no rights to enter private or occupied land. See, also, Montana Water Electric Power & Mining Co., decided by the Interior Department November 12, 1909 (not reported). 478 (3d ed.) Pt III. THE LAW OF PBIQB APPROPRIATION. 442 of 1866 have been that it applied to any beneficial purpose, 9 for the sake of developing the resources of the country. (3d ed.) 442. Conclusion. The Federal system here considered is just developing. Though nominally based only upon reservoir sites and rights of way, yet as waters can seldom be used without ditches or other conduits (that is, a right of access 10 ), it has many features of a body of water law also. In any event, it leaves room for much conflict between the Forest Service and the State Engineer and the general State water administrations, upon matters so intimately connected as rights of way and water-rights. In this matter, as throughout the policy of conservation, the conflict be- tween State and Federal jurisdiction, elsewhere considered, 11 is becoming marked; and the law is in an uncertain and formative stage. The foregoing, regarding acquisition of rights, is a different question from the regulation of service rendered to the public. 12 9 Supra, sec. 378, beneficial purpose. n Supra, c. 8. 10 Supra, sec. 54. 12 Infra, sec. 1260 et seq. 443-451. (Blcmk numbers.) 452,453 Ch.20. MEANS OF USE. (3ded.)479 CHAPTER 20. OF USE RESERVOIRS, DITCHES, FLUMES, PIPES AND OTHER STRUCTURES. A. AETIFICIAL WATER CONDUITS, ETC. 452. General. 453. Use without diversion. 454. Use in artificial water structures Ditches, flumes, pipes in general. 455. The ditch, etc., is an easement. 456. Ditch and water-right distinguished. 457. Water in artificial waterworks or structures. B. USE OF AETIFICIAL CONDUITS, ETC. 458. Contracts concerning ditches. 459. Joint use of ditch. 460. Repair of ditches. 461. Damage from breaking ditches, etc. 462. Same Floods. 463. Same. ,464-472. (Blank numbers.) A. ARTIFICIAL WATER CONDUITS, ETC. (3d d.) 452. General. We now leave the questions arising out of the obtaining of water-rights, and take it as granted that a valid water-right has 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 concerning the means of enjoyment; (2) concerning the amount of water; (3) concerning changes in the mode of enjoyment. These are considered in successive chapters. (3d ed.) 453. Use Without Diversion. Where use is by water-wheels, if the power-house is in the stream-bed it. was held to be an appropriation in one case; 1 while in another, 2 putting current- wheels in a stream was in effect held not to be a proper method 1 Idaho etc. Co. v. Stephenson, 16 207. See Colo. Rev. Stats. 1908, see. Idaho, 418, 101 Pac. 821. 3180; Gen. Stats., sec. 1727; Gen, 2 Schodde v. Twin Falls etc. Co. Laws, sec. 1377. (Idaho), 161 Fed. 43, 88 C. C. A. 480 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 454 of appropriation. The real meaning of this latter decision, how- ever, we have already considered. 3 A few other cases have held use without diversion to constitute appropriation. 4 A dam is not improper per se, but becomes such when it is the means of taking an excess of water over the quantity to which the dam owner is entitled. 5 (3d ed.) 454. Use in Artificial Water Structures Ditches, Flumes, Pipes, in General. Conveyance in ditches, flumes, pipes, etc., is the means usually adopted in putting the water to use. In mining, where the doctrine of appropriation arose, and also in irrigation, the water is ditched, flumed, or piped long distances, sometimes fifty or more miles. A ditch is an artificial water- course. 6 It is real estate. 7 (3d ed.) 455. The Ditch, etc., is an Easement. That a ditch is an easement has been frequently declared. 8 The essence of the right to a ditch is the right of way to conduct water over another's land, and confers no ownership of the land itself, and the ditch 3 Supra, sec. 313. 8 Among other cases: Gregory v. < Supra, sec. 366, settling on banks Nelson, 41 Cal. 278, 12 Morr. Min. of stream. Rep. 124; Campbell v. West, 44 Cal. 5 Arroyo D. etc. Co. v. Baldwin 646, 1 Morr. Min. Rep. 218; Quinlan (1909), 155 Cal. 280, 100 Pae. 874. v. Noble, 75 Cal. 250, 17 Pac. 69; Regarding use in storage reservoirs, Allen v. San Jose etc. Co., 92 Cal. see Index. 138, 28 Pac. 215, 15 L. R. A. 93;' 6 Lower Kings River etc. Ditch Co. Bean v. Stoneman, 104 Cal. 49, 37 v. Kings etc. Co., 60 Cal. 408. So Pac. 777, 38 Pac. 39; Burris v. Peo- is a pipe. Standart v. Round Valley pie's Ditch Co., 104 Cal. 248, 37 Pac. W. Co., 77 Cal. 399, 19 Pac. 689. 922; Mesnager v. Englehardt, 108 Cal. 7 Clark v. Willett, 35 Cal. 534, at 68, 41 Pac. 20; Joseph v. Ager, 108 549, 4 Morr. Min. Rep. 628 ; Bashore Cal. 517, 41 Pac. 422 ; Dixon v. Seher- v. Mooney, 4 Cal. App. 276, 87 Pac. meier, 110 Cal. 583, 42 Pac. 1091; 556. Water conduits are real estate. Jacob v. Day, 111 Cal. 571, 44 Pac. Cal. etc. Co. v. County of Los Angeles 243; North Fork etc. Co. v. Edwards, (1909), 10 Cal. App. 185, 101 Pac. 121 Cal. 662, 54 Pac. 69; Los An- 547. An easement is real estate. geles v. Pomeroy, 125 Cal. 420, 58 Corea v. Higuera, 153 Cal. 451, 95 Pac. 69; Mayberry v. Alhambra etc. Pac. 884, 17 L. R. A., N. S., 1018. Co., 125 Cal. 444, 54 Pac. 530, 58 A ditch, by means of which the Pac. 68; Oliver v. Agasse, 132 Cal. waters of a natural stream are di- 297, 64 Pac. 401 ; Anaheim W. Co. verted, is not itself governed by the v. Ashcroft (1908), 153 Cal. 152, 94 law of natural watercourses. Simmons Pac. 613 ; Blake v. Boye, 38 Colo. v. Winters, 21 Or. 35, 28 Am. St. Rep. 55, 88 Pae. 470, 8 L. R. A., N. S., 727, 27 Pac. 7. See definitions of a 418; Smith v. Colorado etc. Co., 34 "ditch" in Nev. Stats. 1909, pp. 91, Colo. 494, 82 Pac. 940, 3 L. R. A., 247. N. S., 1148. 455 Ch. 20. MEANS OF USE. (3ded.)481 is not land. 9 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 ejectment would lie for a ditch, and it has been frequently cited and relied on. 10 The ownership of a ditch includes no ownership of the soil, 11 nor any fee in the land. 12 Nor, consequently, does it include the right to build a house alongside the ditch ; 13 but ownership of a ditch merely consists in right of way. 14 "In plaintiff's plea of former judgment the allegation is that it had been adjudicated that she was the owner of a 'ditch and waterway' across the lands of defendant for the purpose of conveying waters. In the foregoing discussion we have treated this allega- tion as meaning no more than that she owned an easement or right to carry waters over his lands through a ditch or water- way, and such, we think, is the proper construction of the language quoted. ' ' 15 Changes that are burdensome to the servient tenement cannot be made, following the usual law of easements. 16 The rights and duties of repair follow the law of easements. 17 The right to maintain a ditch arises' like any easement, and if on public land, it arises by government grant under the act of 1866, on the same principle that the water-right itself is a grant; and the 9 Mt. Carmel Fruit Co. v. Webster, 14 Ibid., and Bashore v. Mooney, 4 140 Cal. 183, 73 Pac. 826; the facts Gal. App. 276, 87 Pac. 556. of this' case are stated infra, sec. 537. 15 Sloss, J., in Hoyt v. Hart, 149 10 Reed v. Spicer, 27 Cal. 57, 4 Cal. 722, 87 Pac. 569. The civil law Morr. Min. Eep. 330. Eelied on in In- classed the right to conduct wate-r tegral Co. v. Altoona Co., 75 Fed. 383, over another's land as the same as a 21 C. C. A- 409; Ada Co. v. Farmers' right of way. Institutes of Justinian, Co., 5 Idaho, 799, 51 Pac. 990, 40 lib. III. "Rusticorum praediorum iura L. R. A. 485; Pomeroy on Riparian sunt haec; iter, actus via, aquae Rights, sec. 57; Kinney on Irrigation, ductus Aquae ductus est ius sec. 224. In Dondero v. O'Hara, 3 aquae decendae per fundum alienum. Cal. App. 633, 86 Pac. 985, ejectment .... Item praediorum urbanorum for a ditch was allowed. The point servitutes sunt hae: . . . . ut stilli- was not raised. But compare Swift cidium vel flumen recipiat quis in v. Goodrich, 70 Cal. 103, 11 Pac. 561. aedes suos, vel in aream, vel non re- 11 Lyman v. Arnold, 5 Mason, 195, cipiat." Fed. Cas. No. 8626. 16 Infra, sec. 501 et seq. 12 Whitmore v. Pleasant Valley Co., So long as a tract remains in one 27 Utah, 284, 75 Pac. 748 ; Nichols ownership, there can be no dominant v. New England etc. Co., 100 Mich. and servient tenements as between dif- 230, 59 N. W. 155 ; Hayward v. Mason f erent portions of the tract, and the (1909), 54 Wash. 649, 104 Pac. 139; owner may rearrange the quality of Hayward v. Mason (Wash. 1909), 104 any possible servitude. Oliver v. Bur- Pac. 141. nett, 10 Cal. App. 403, 102 Pae. 223. 13 Whitmore v. Pleasant Valley Co., 17 Infra, see. 460 et seq. 27 Utah, 284, 75 Pac. 748. Water Rights 31 i82 (Sded.) Pt. III. THE LAW OF PRIOR APPEOPBIATION. 456 burden of the ditch attaches to the land if the land later passes into private title. 18 But a new ditch cannot be built over pri- vate land, nor an old one changed, without the consent of the land owner, unless by prescription or condemnation under the power of eminent domain. 19 Excepting government ditches, a right of way for which has been reserved from all patents granted since 1890. 20 Formerly Colorado 'decisions allowed the building of private irrigation ditches over another's land without his consent; but now in Colorado as elsewhere this is not permitted. After title to land has passed from the government, the land can be bur- dened with a right of way for water only by consent of, the owner, or by condemnation proceedings. The Colorado rule in this respect has already been discussed at length. 21 The early Colorado partiality to irrigation ditches is similar to that urged in California in the early days for mining ditches, which finally the court rejected in California also. 22 The building of a ditch over private land by condemning an easement of right of way is discussed under the topic of eminent domain. 23 It has been held that a water-right must be obtained before a right of way for a ditch can be obtained. 24 Some cases speak of "servitude upon a ditch" or "easement in a ditch" to express the right of consumers from irrigation companies, though a servitude upon a servitude or an easement in an easement seems an anomalous form of expression. 25 (3d ed.) 456. Ditch and Water-right Distinguished. The water- right itself, as a flow and use, is not an easement. It is a thing in itself, not a servitude upon some other thing ; whereas the right 18 U. S. Rev. Stats., sees. 2339, 21 Supra, sec. 223 et seq. 2340; Gregory v. Nelson, 41 Cal. 278, 22 Supra, sec. 85. 12 Morr. Min. Rep! 124; Smith v. 9 , Tnf ^ Kr >A ,, . . ,-, /i i TOO xo -n AKO ^ Infra, sec. b04. Hawkins, 110 Cal. 122, 42 Pac. 453; Jacob v. Day, 111 Cal. 571, 44 Pac. 24 Nippel v. Forker, 26 Colo. 74, 243; Le Quim v. Chambers (1908), 56 Pac - 577 5 Castle Eock Co - v - Ju " 15 Idaho, 405, 21 L. R. A., N. S., 76, risch, 67 Neb. 377, 93 N. W. 690. 98 Pac. 415 (a pipe-line). Supra, sec. Contra, however, State ex rel. Kettle 257. Falls etc. Co. v. Superior Court, 46 19 Supra, sec. 221 et seq. Wash. 500, 90 Pac. 653. See infra, 20 Green v. Wilhite, 14 Idaho, 238, sec. 615. See O'Reilley v. Noxon 93 Pac. 971; Same v. Same, 156 Fed. (Colo.), 113 Pac. 486. 755. 25 See infra, sees. 1324, 1338. 450 Ch. 20. MEANS OF USE. (3d ed.) 483 to a ditch or other artificial watercourse is an easement. 1 "The right to the use of water in a natural stream is in no sense an easement, but its use by diversion, in an artificial watercourse, is strictly an easement. ' ' 2 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. 3 An injury to a water-right cannot be proved under a count for an injury to a ditch, or vice versa. 4 A canal may well be granted, reserving the water-right. 5 They may be condemned separately on eminent domain proceedings. 6 An abandonment of a ditch does not necessarily include an abandonment of the owner's water-right. 7 A decree as to the one does not neces- sarily govern as to the other. 8 Revocation of a license to build a ditch does not necessarily affect the right to the water car- ried by the ditch. 9 "Ownership of a ditch and the water-right for waters to flow through the ditch may, and often do, exist in different parties. The existence of the one right does not necessarily imply the existence of the other right in the same party." 10 It is said in another case: /'But the water-right, when acquired, although intimately related to and connected with the site for a dam and canal, and dam and canal commenced, etc., is a different thing, even though each may be necessary to make the other available or useful. They are capable of several and distinct injuries, giving rise to separate and distinct causes of action, for which there are separate and distinct remedies. The dam and canal may be trespassed upon, broken down, destroyed or 1 See Zimmler v. San Luis Co., 57 10 Wash. 157, 38 Pac. 875; Ada etc. Cal. 221 ; McLear v. Hapgood, 85 Gal. Co. v. Farmers' etc. Co., 5 Idaho, 793, 555, 24 Pac. 788; Natoma etc. Co. 51 Pac. 990, 40 L. E. A. 485. v. Hancock, 101 Cal. 42, 31 Pac. 112, 6 Schneider v. Schneider, 36 Colo. 35 Pac. 334 (semble contra); Dixon 518, 86 Pac. 348. v. Schermeier, 110 Cal. 582, 42 Pac. 7 Nichols v. Mclntosh, 19 Colo. 22, 1091; Jacob v. T)ay, 111 Cal. 571, 34 Pac. 278. 44 Pac. 243; Mayberry v. Alhambra 8 Parke v. Boulware, 7 Idaho, 490, etc. Co., 125 Cal. 444, 54 Pac. 530, 63 Pac. 1045. 58 Pac. 68. 9 Ison v. Sturgill (Or. 1909), 109 2 Yale on Mining Claims and Pac. 579. Water Eights, p. 204. 10 Swank v. Sweetwater etc. Co., 15 Zimmler v. San Luis Co., 57 Cal. Idaho, 353, 98 Pac. 297, citing Ada 221. County Farmers' Irr. Co. v. Farmers' 4 Nevada etc. Co. v. Kidd, 37 Cal. Canal Co., 5 Idaho, 793, 51 Pac. 990, 282. 40 L. E'. A. 485; Stocker v. Kirtley, 5 Eogers v. Eiverside etc. Co., 132 6 Idaho, 795, 59 Pac. 891; Parke v. Cal. 9, 64 Pac. 95; Wold v. May, Boulware, 7 Idaho, 490, 63 Pac. 1045. 484 (3d ed.) Pt. III. THE LAW OF PKIOE APPROPRIATION. 457 taken into possession under a claim of right, without taking away the water, or preventing its use in any other mode or place, or without questioning plaintiff's right to it, and plaintiff may have its action for the trespass, or to recover the possession of the land constituting the dam and canal, or their site ; and the water may also be diverted and taken away without in any way disturbing or interfering with the dam and canal. ' ' n 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 may pass as an appurtenance in the conveyance of the ditch. 12 In one case 13 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. 14 Where, however, the ditch is not made up of distinct parts the water-right is appurtenant to every part of the ditch, however long. 15 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 entered the ditch. There would seem to be a conflict between this rule that a water-right is appur- tenant to the ditch, and the rule 16 that an injury to the water- right (diversion) cannot be proved under a count for injury to the ditch. In one case 17 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. (3d ed.) 457. Water in Artificial Waterworks or Structures. This is a matter fully considered elsewhere. 18 n Nevada C. & S. C. Co. v. Kidd, 15 Lower Kings River etc. Co. v. 37 Cal. 282, 309. Kings etc. Co., 60 Cal. 408; Willey* v. 12 Lower etc. Co. v. Kings etc. Co., Decker, 11 Wyo. 496, 100 Am. St. 60 Cal. 408; Williams v. Harter, 121 Rep. 939, 73 Pac. 210. Cal. 47, 53 Pae. 405. See infra, sec. i Nevada etc. Co. v. Kidd, supra. 550 et seq. 17 Jacobs v. Lorenz, 98 Cal. 332, 33 13 Reynolds v. Hosmer, 51 Cal. 205, Pac. 119. See, also, Cascade etc. Co. 5 Morr. Min. Rep. 6. v. Railsback (Wash.), 109 Pac. 1062. 14 Accord. 6 Wall. 561. Also Jarvis See, also, Nippel v. Porker, 26 Colo, v. State Bank, 22 Colo. 309, 55 Am. 74, 56 Pac. 577. St. Rep. 129, 45 Pac. 505, of a ditch 18 Supra, sec. 30 et seq. made up of distinct parts. 458 Ch. 20. MEANS OF USE. (3d ed.) 485 B. USE OF ABTIFICIAL WATEE CONDUITS, ETC. (3d ed.) 458. Contracts Concerning Ditches. There is no limitation upon the right to deal with or dispose of this kind of property, and the usual law of contracts applies. 188 A covenant to allow a neighbor to take the water from a stream and build two ditches across one's land runs with the land. 19 A license for a pipe-line does not cover a defective pipe-line. 20 A sale of a ditch may carry with it a water-right as an appurtenance ; 21 but a grant may be made of a canal reserving the water-right ; 22 and a water-right will not always pass as an appurtenance with the grant of a ditch-right if such was not the intent. 23 They may be sold separately. 24 Ditches and water-rights are subject to mechanics' liens, 25 or execution, 1 or mortgage. 2 In equity, parol licenses and contracts are sometimes given an effect which they would not have at law, as to which more hereafter ; but in gen- eral, conveyances of ditches or agreements regarding them are within the statute of frauds. 3 Recording of a grant to build a ditch is not necessary inter paries or purchasers with notice. 4 A grant of right of way for a pipe-line without specifying dimensions means a reasonable width, 5 and becomes fixed when a definite one is thereunder located and used. 6 An express grant of a right of way to lay pipes without specifying number and size becomes fixed by laying a ten-inch pipe with the acquiescence of both parties, and more or larger pipes cannot be laid thereafter in the absence of special matter in the instru- I8a Infra, sec. 536 et seq. 1 Gleason v. Hill, 65 Cal.' 17, 2 19 Weill v. Baldwin, 64 Cal. 476, Pac. 413. 2.Pac. 249. 2 Mitchell v. Canal Co., 75 Cal. 464, 20 Graham v. Redlands etc. Co., 3 17 Pac. 246. Cal. App. 732, 86 Pac. 989. 3 Prentice v. McKay, 38 Mont. 114, 21 Infra, sees. 508, 550. 98 Pac. 1081; Oliver v. Burnett, 10 22 Rogers v. Riverside etc. Co., 132 Cal. App. 403, 102 Pac. 223. See Cal. 9, 64 Pac. 95. infra, sec. 555 et seq. 23 Zimmler v. San Luis etc. Co., 57 4 Little v. Gibb, 57 Wash. 92, 106 Cal. 221. See infra, sec. 550 et seq. Pac. 491. See infra, sec. 542. 24 Miller v. Vaughan, 8 Or. 333, 5 Everett etc. Co. v. Powers, 37 and supra, sec. 456. Wash. 143, 79 Pac. 617; Ballard v. 25 Reynolds v. Hosmer, 51 Cal. 205, Titus (1910), 157 Cal. 673, 110 Pac. 5 Morr. Min. Rep. 6; Bear Lake etc. 118. Co. v. Garland, 164 U. S. 1, 17 Sup. 6 Winslow v. Vallejo, 148 Cal. 725, Ct. Rep. 7, 41 L. Ed. 327; Creer v. 113 Am. St. Rep. 349, 84 Pac. 191, Cache Valley Co., 4 Idaho, 280, 95 5 L. R. A., N. S., 851, 7 Ann. Gas. Am. St. Rep. 63, 38 Pac. 653; Jarvia 851; Kern etc. Co. v. Bakersfield, 151 v. State Bank, 22 Colo. 309, 55 Am. Cal. 403, 90 Pac. 1052. St. Rep. 129, 45 Pac. 505. 486 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 458 ment of grant providing for such change. 7 Under a license to enter on plaintiff's land to construct a pipe-line of a specified capacity of good substantial material and workmanship for the conveyance of water to the licensees' premises, the latter were not entitled to enter on the land to construct a pipe-line which was substantially defective in character and likely to be pro- ductive of unnecessary damage to plaintiff. 8 Where one has a grant of right in general terms to build a ditch over another's land, he must build it subject to the restriction to create the least practical interference with the servient freehold. 9 It has been held that a grant of a right of way for a pipe-line includes by implica- tion a right to build a telephone line along it to be used in maintain- ing the canal. 9 * A reservation of a "right of way" does not include the right to dig trenches and lay trenches for the conduct of water. 10 In one case an association reserved to itself, its members and alienees ''a reasonable right of way in and across" the lands which it granted. It was held that "the phrase 'right of way' as thus used has a well-defined meaning. It contemplates a right of ingress and egress to and from the grantee's lands. It does not contemplate the right to dig trenches and lay pipe- lines for the conduct of water." 11 The right to erect a dam and lay a four and one-half inch pipe therefrom does not convey a right to change such dam, at will, nor to lay an eight-inch pipe across any portion of the land which might be desired. Having made its first location under its grant, a water company was bound thereby, and had no right to go where it would, and lay any pipe it saw fit across any desired part of the land. 12 Water in a pipe is a commodity, and if conveyed in a pipe, the pipe may belong to one person and the water to another. 13 1 Winslow v. City of Vallejo, 148 10 San Rafael Co. v. Ralph Rogers Cal. 723, 113 Am. St. Rep. 349, 84 Co., 154 Cal. 76, 96 Pac. 1092. Pac. 191, 5 L R. AN. S., 851, 7 n g fw , CQ y Ral fa ^ ton Gas. 851 (Sloss J.) c (190g) 154 Cl 1Q ^ p * 8 Graham v. Redlands Heights ,.? ^ " Water Co. et al., 3 Cal. App. 732, 86 Pac. 989. 12 Rhoades v. Barnes (1909), 54 9 Tarpey v. Lynch (1909), 155 Cal. Wash. 145, 102 Pac. 884. 4 JS Pa *' 1 ' 4i 13 New Jersey Co. v. Town of Har- a City of Portland v. Metzger . 72 XT T L 194 62 Atl 767 (Or.), 114 Pac. 106. > i& *' J ' ^ ' U " ' 07< 459 Ch.20. MEANS OF USE. C3ded.)487 Further reference is made to the general chapter hereafter de- voted to contracts, conveyances and appurtenances. (3d eL) 459. Joint Use of Ditch. Ownership of an easement over another's land is not necessarily inconsistent with a like use by the landowner, of the servient tenement, so long as such use is subordinate to the easement, and does not restrict or limit its exercise. 14 In the case just cited Mr. Justice Sloss said: "There is no inconsistency between the portion of the decree declaring that plaintiff has an easement in these ditches, and that portion which grants to defendant the right to use the ditches jointly with plaintiff for the purpose of carrying his waters. The ease- ment is a right to use the lands of the defendant for conduct- ing her waters to her lands. It can coexist with a right in the defendant or anyone else to use the same waterways, so long as such use does not restrict or interfere with the right owned by the plaintiff. It would not be claimed that merely because A has a right of way over B's land, B cannot, under any cir- cumstances, use the portion of his land affected by the easement in a manner which does not infringe upon the exercise of such easement. It is well settled, as a general proposition, that the owner of the servient estate may use his property in any man- ner and for any purpose consistent with the enjoyment of the easement." 15 The same is true when the right to the ditch has been obtained by prescription. 16 One might acquire a pre- scriptive right to use an irrigation ditch to convey a limited quantity of water to his land, while another retained the right also to use the ditch for his own purposes to the extent of its remaining capacity. 17 Regarding joint ownership of ditches see, further, a previous chapter. 18 14 Hoyt v. Hart, 149 Cal. 722, 87 142 Cal. 396, 76 Pac. 60, 61) ; Bashore Pac. 569. . v. Mooney, 4 Cal. App. 276, 87 Pac. 15 Accord, Colegrove Water Co. v. 55,3. City of Hollywood, 151 Cal. 425, 90 Bashore M oonev 4 Cal ADD Pac. 1053, 13 L. R. A., N. 8., 904; " SfvSfinui ?> Hayward v. Mason (1909), 5 Wash. "> * 649, 104 Pac. 139. is Supra, sec. 320, tenants in corn- is Smith v. Hampshire, 4 Cal. App. mon. 8, 87 Pac. 224 (citing Abbott v. Pond, 488 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 460 (3d ed.) 460. Repair of Ditches. As in the case of any easement, the ditch-owner, as the dominant, has the duty of keeping the ditch in repair, and not the landowner. 19 Correspondingly he has a right of entry upon the servient estate to make the repairs 20 and to clean out the ditch, and if the landowner inter- feres, injunction lies. 21 The landowner, on his part, cannot remove the lateral or subjacent support to which the ditch is entitled. 22 Otherwise he is free to use his land in the ordinary way, such as for pasturing sheep, though they trample the ditch. It is the ditch-owner's duty to fence or otherwise keep the ditch in repair against damage from the ordinary use of the land by the landowner. 23 And per contra if the cattle drown in the ditch, the ditch-owner is not liable to the landowner. 24 The owner of the servient estate may erect fences along the sides of a ditch or artificial watercourse. Unless it is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances of the case that such was the intention of the parties, the owner of the servient estate may also erect gates across the way, provided they are so located and constructed as not unreasonably to interfere with the use of the ditch. 25 Where ditch crosses ditch, the later claimant must adjust the crossings so as not to interfere with the prior i Fraler v. Sears etc. Co., 12 Cal. Watson D. Co. (1909), 16 Idaho, 484, 556, 73 Am. Dec. 562, 12 Morr. Min. 133 Am. St. Rep. 125, 101 Pac. 1059. Rep. 98; Richardson v. Kier, 34 Cal. 21 Stufflebeem v. Adelsbach, 135 63, 91 Am. Dec. 681, 4 Morr. Min. Cal. 221, 67 Pac. 140. Rep. 612 ; Richardson v. Kier, 37 Cal. ^ Gre or v Ne i son 41 C al. 278, 263; Durfee v. Garvey, 78 Cal. 546, 12 Morr 6 Min R m Lorenz y> 21 Pac. 302; Bean v. Stoneman, 104 Waldron 96 Cal 943 31 Pac . 54. Cal. 49, 37 Pac. 777, 38 Pac 5 39; 23 Cattle trampling -ditch. Durfee Niday v. Barker (1909), 16 Idaho, y G 7g Cal 5 | 6 21 Pac 3Q2 73, 101 Pac. 254. See 15 L. R. A., Keller v ^' Fink (Cal) ; 37 Pac 4n N. S., 992, note. Cattle pointing ditch. City of Belle- 20 Pico v. Colimas, 32 Cal. 578; vue v. Daly, 14 Idaho, 545, 125 Am. Ware v. Walker, 70 Cal. 591, 12 Pac. St. Rep. 179, 94 Pac. 1037, 15 L. R. 475; City of Bellevue v. Daly, 14 A., N. S., 992, 14 Ann. Cas. 1136. Idaho, 545, 125 Am. St. Rep. 179, 94 Contra, however, Bileu v. Paisley, 18 Pac. 1037 (dictum). See 15 L. R. Or. 47, 21 Pac. 934, 4 L. R. A. 840. A., N. S., 992, note, 14 Ann. Cas. 24 Messinger v. Gordon, 15 Colo. 1136. This right, however, must be App. 429, 62 Pac. 959. exercised with due care and diligence 25 Utah etc. Co. v. Stevenson, 34 and not arbitrarily. Hutchinson v. Utah, 184, 97 Pac. 27. 461 Ch. 20. MEANS OF USE. (3ded.) 489 ditch. 1 Repairs may be made on a ditch slightly changing its grade. 3 Regarding maintenance and repair of distributing systems as between company and consumers, reference is made to a later chapter. 3 (3d ed.) 461. Damage from Breaking Ditches, etc. The use by means of ditches, flumes and similar apparatus is, of course, the most usual, and using the water in this way does not, by any means, make the appropriator an insurer of others against damage from breaking, overflow, seepage, or other escape of the water. The famous English case of Rylands y. Fletcher 4 declared that a man builds a reservoir, or other works to hold water, at his peril. 5 But such is not the law in the West. The ditch-owner is. not liable merely because the break or escape occurred, but only if it occurred through his negligence. Negligence must be shown. 1 Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240, 4 Morr. Min. Rep. 504. 2 Burris v. People's Ditch Co., 104 Cal. 248, 37 Pac. 922. Regarding contribution between ten- ants in common for repair of ditches, see supra, sec. 320. Regarding duty to bridge, see Mac- Cam'melly v. Pioneer Irr. Diet., 17 Idaho, 415, 105 Pac. 1076; Hague v. Juab etc. Co. (Utah, 1910), 107 Pac. 249; Farmers' Highline Canal Co. v. Westlake, 23 Colo. 29, 46 Pac. 134; Nebraska Stats. 1895, p. 23, sec. 52; Stats. 1903, c. 120, p. 613; Cobbey's Ann. Stats., sec. 6806. 3 Infra, sec. 1284. 4 L. R. 1 Ex. 265, L. R. 3 H. L. 330. 6 "In Rylands v. Fletcher, L. R. 1 Ex. 267, L. R. 3 H. L. 330, it was declared that no amount of diligence is a legal excuse, if such water es- cdpes and damages another. The cor- rectness of this doctrine has been much discussed by law-writers and courts. It has been approved in Massachusetts (see Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 234); in Minnesota (see Cahill v. Eastman, 18 Minn. 324 (Gil. 292), 10 Am. Rep. 184). It has been disapproved in other States. See Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; Pa. Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453; Mar- shall v. Welwood, 38 N. J. L. 339, 20 Am. Dec. 394." Scott v. Longwell, 139 Mich. 12, 102 N. W. 230, 5 Ann. Gas. 679. See, also, Moore v. Berlin Co., 74 N. H. 305,. 124 Am. St. Rep. 968, 67 Atl. 578, 11 L. R. A., N. S., 284, 13 Ann. Gas. 217. See, also, 15 L. R. A., N. S., 541, note. 6 California. Tenney v. Miners' Ditch Co., 7 Cal. 335, 11 Morr. Min. Rep. 31; Wolf v. St. Louis Co., 10 Cal. 541, 10 Morr. Min. Rep. 636; Todd v. Cochell, 17 Cal. 98, 10 Morr. Min. Rep. 655; Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681 ; 4 Morr. Min. Rep. 612; Hoffman v. Tuolumne etc. Co., 10 Cal. 413; Everett v. Hy- draulic Co., 23 Cal. 225, 4 Morr. Min. Rep. 589; Campbell v. Bear River Co., 35 Cal. 679, 10 Morr. Min. Rep. 656; Weidekind v. Tuolumne etc. Co. (Cal.), 12 Pac. 387; Bacon v. Kear- ney etc. Syndicate, 1 Cal. App. 275, 82 Pac. 82 (overflow of ditch) ; Gib- son v. Puchta, 33 Cal. 310, 12 Morr. Min. Rep. 227; Paolini v. Fresno Co., 490 (3d ed.) Pt. III. THE LAW OF PRIOE APPROPRIATION. 461 It is not even a case of res ipsa loquitur and negligence is not presumed from the mere fact that a break or escape occurred, 7 unless such presumption is specially enacted by statute. 8 The ordinary rule of negligence, that there must be a failure to use the care which an ordinary prudent man would have taken under 9 Cal. App. 1, 97 Pac. 1130. But see Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pae. 989 (leak- age). Colorado. City of Denver v. Mul- len, 7 Colo. 345, 3 Pac. 693; Platte Co. v. Anderson, 8 Colo. 131, 6 Pac. 515; Walley v. Platte Co., 15 Colo. 579, 26 Pae. 129; Catlin etc. Co. v. Best, 2 Colo. App. 481, 31 Pac. 391 (holding negligence shown). But "see the statutory presumption, infra, Idaho. Arave v. Idaho etc. Co., 5 Idah'o, 68, 46 Pac. 1024. Montana. King v. Miles, 16 Mont. 463, 50 Am. St. Rep. 506, 41 Pac. 431; Fleming v. Lockwood, 36 Mont. 384, 92 Pac. 962, 14 L. R. A., N. S., 628, 13 Ann. Cas. 263; Mulrone v. Mar- shall, 35 Mont. 238, 88 Pac. 797, cit- ing Montana cases. Nebraska. Kearney etc. Co. v. Akeyson, 45 Neb. 635, 63 N. W. 921; Suitor v. Chicago etc. Ry. (1909), 84 Neb. 256, 120 N. W. 113. Nevada. Shields v. Orr etc. Co., 23 Nev. 349, 47 Pac. 194. Texas. City of Paris v. Tucker (Ter. Civ. App.), 93 S. W. 233 (a pipe-line) . Wyoming. Howell v. Big Horn Basin etc. Co., 14 Wyo. 14, 1 L. R. A., N. S., 596, 81 Pac. 785, citing cases. 7 Tenney v. Miners' etc. Co., 7 Cal. 335, 11 Morr. Min. Rep. 31. 8 California. The great weight of authority in California is against any such presumption, as above cited. At the same time it should be noted that the case of Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989, holds the ditch-owner to the same liability as in Fletcher v. Rylands (not citing it) ; and there is a statu- tory enactment approaching the in- surer rule in some cases. Political Code, section 3486. and section 3487. Colorado. A statutory liability is enacted in M. A. S. 2272; Rev. Stats. 1908, sees. 3204, 3213, 3233, 3238; Gen. Stats., sec. 1726 et seq.; Laws 1872, p. 144, sec. 1; Laws 1876, p. 78, sec. 2; Laws 1879, p. 107, sec. 40; Laws 1899, p. 316, sec. 9. It seems to approach close to the rule of Rylands v. Fletcher as concerns reservoirs, for the court holds the reservoir owner to a strong liability under it, on the ground that the water is likely to es- cape and to do damage if it escapes (Canon City v. Oxtoby (1909), 45 Colo. 214, 100 Pac. 1127) ; and liable absolutely, irrespective of negligence (with a query as to "act of God." Garnet etc. Co. v. Sampson (Colo.), 110 Pac. 79, affirming Larimer Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 Pac. 1111) ; Sylvester v. Jerome, 19 Colo. 128, 34 Pac. 760; and this is not changed by the statutes re- quiring supervision by State Engineer (Garnet Co. v. Sampson, supra). But there is some question how far this applies only to reservoirs or also to ditches, Ibid., and Middlekamp v. Bessemer etc. Co., 46 Colo. 102, 103 Pac. 280, 23 L. R. A., N. S., 795. Idaho. Ditch-owner liable to land- owner for damages from breakage, whether neglect or accident (unless unavoidable). McLean's Rev. Codes Idaho, sec. 3300; Rev. Stats. 1887, sec. 3181, llth Ter. Sess. (1881), 269. Washington. In a Washington case it is held that one who places ob- structions in a navigable stream does so at his peril as to any damage to landowners, and negligence need not be shown. Gilson v. Cascade etc. Co. (1909), 54 Wash. 289, 103 Pac. 11. Wyoming. Rev. Stats. 1899, sees. 901, 974, 3069. Statutory liabilities sometimes ap- pear in the water codes making it a misdemeanor to use works without the permission of the State Engineer as to their safety; e. g., N. M. Stats. 1907, p. 71, sec. 33; S. D. Stats. 1907, c. 180, sec. 28. 461 Ch. 20. MEANS OF USE. (3ded.)491 the circumstances, applies. 9 The owner of a millrace must use care "proportionate to the danger" to prevent the water from escaping and percolating through the banks to the injury of the adjacent property owners, 10 and if a dam breaks without his fault, he must repair it as soon as practicable. 11 In one case the test is said to be: "The true test, considering all the circumstances, is, ought a competent and skillful engineer reasonably to have anticipated such a flood as caused the damage to the plaintiff and to have made provision therefor?" 12 though that seems to put too strong an interpretation on due care when separated from the facts of that case; for it is a simple question of fact as to what is due care in each case, on the part of an ordinary prudent man, and not necessarily a skillful engineer. The failure to employ a skillful engineer, or to act as such a per- son would, may be evidence of negligence, but it is simply a fact for the jury to consider in deciding whether such care was used as an ordinary prudent man would have used under the circum- stances. The law seeks only to preserve the ordinary course of things; and if damage then occurs, it must lie where it falls. An instruction that defendant must use the care of "a very prudent man" is held erroneous. 13 Where all the land in controversy was mineral land, one party cleared off a portion of his claim and planted it to potatoes. In the irrigation of his crop the water percolated through and into the mining tunnel of plaintiffs, and they sought to restrain him from such use of his land. The court says: "The defendant had the undoubted right to cultivate and plant this tract of land, and, having planted it, there can be as little question that he had the same right to irrigate it for the purpose of maturing his crop. In irrigating his land the defendant is subject to the maxim, 'Sic utere tuo ut alienum non laedas.' An action cannot be main- Wolf v. St. Louis etc. Co., 10 Cal. Weidekind v. Tuolumne Water Co., 54-1, 10 Morr. Min. Ecp. 636, and 65 Cal. 431, 4 Pac. 415, it was held cases just cited. Cf., also, Parker v. erroneous to charge that there was Gregg, 136 Cal. 413, 69 Pac. 22. negligence unless the dam had certain 10 Scott v. Longwell, 139 Mich. 12, kind of gates, or was built of certain 102 N. W. 230, 5 Ann. Gas. 679. dimensions or of certain material. 11 Hoffman v. Tuolumne Co., 10 "And we think the court erred in charg- Cal. 418. ing that 'it was the duty of the de- 12 Price v. Oregon etc. Co., 47 Or. fendant to constantly examine said 350, 83 Pac. 843. dam during the season of freshets.' 13 Wolf v. St. Louis Co., 10 Cal. That might depend on circumstances, 544, 10 Morr. Min. Eep2 636. In and should have been left to the jury." 492 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 462 tained against him for the reasonable exercise of his right, although an annoyance or injury may thereby be occasioned to the plaintiffs. He is responsible to the plaintiffs only for the injuries caused by his negligence or unskillfulness, or those willfully inflicted in the exercise of his right of irrigating his land." 14 The ditch-owner is not per se liable for damages from leakage caused without negligence by the activity of some burrowing animal, 15 but it is otherwise where the ditch-owner was also negli- gent. 18 It has been held that notice or warning to the ditch-owner is sufficient to fix him with negligence if he remains inactive and the damage occurs thereafter. 17 Concerning contributory negligence, some references are given in the note. 18 (3d ed.) 462. Same Floods. Where the overflow results from a flood, it is still a question of use of due care; there being no lia- bility for such extraordinary floods as would surprise caution, but being liable where the floods were periodical or might have been anticipated. There is no liability for damage from floods 14 Gibson v. Puchta, 33 Gal. 310, 12 IT Greeley etc. Co. v. House. 14 Morr. Min. Rep. 227. Colo. 549, 24 Pac. 329; McCarty v. Damage from seepage from irriga- Boise etc. Co., 2 Idaho (225), 245, tion and from ditches used in irri- 10 Pac. 623. gation is held not actionable in the 18 As to the effect of contributory absence of negligence, but actionable negligence, see Shields v. Orr etc. Co., when negligent. Paolini v. Fresno 23 Nev. 349, 47 Pac. 194; McLeod v. etc. Co. (1908), 9 Cal. App. 1, 97 Pac. Lee, 17 Nev. 103, 28 Pac. 124; Fraler 1130. Citing Shields v. Orr etc. Co., v. Sears etc. Co., 12 Cal. 555, 73 Am. 23 Nev. 349, 47 Pac. 194, and Parker Dec. 562, 12 Morr. Min. Rep. 98; V. Larsen, 86 Cal. 236, 21 Am. St. Consolidated etc. Co. v. Hamlin, 6 Rep. 30, 24 Pac. 989, but not citing Colo. App. 341, 40 Pac. 582 ; Arave v. Gibson v. Puchta. (The case of Idaho C. Co., 5 Idaho, 68, 46 Pac. Parker v. Larsen, supra, seems to hold 1024 ; Stuart v. Noble D. Co., 9 Idaho, that negligence need not be shown.) 765, 76 Pac. 255; Jenkins v. Hooper As to water doing damage from dif- Irr. Co., 13 Utah, 100, 44 Pac. 829 ; fused percolation, see, also, Moore v; Lisonbee v. Monroe Irr. Co., 18 Utah, Berlin Co., 74 N. H. 305, 124 Am. 343, 72 Am. St. Rep. 784, 54 Pac. St. Rep. 968, 67 Atl. 578, 11 L. R. A., 1009; North Point Co. v. Utah Co., 16 N. S., 284, 13 Ann. Gas. 217, repudiat- Utah, 246, 67 Am. St. Rep. 607, 52 ing the rule of Fletcher v. Rylands, Pac. 168, 40 L. R. A. 851; Bacon v. and holding that negligence must be Kearney, 1 Cal. App. 275, 82 Pac. shown. 84; McLellan v. Brownsville etc. Co., is Tenney v. Miners' etc. Co., 7 46 Tex. Civ. App. 249, 103 S. W. 207; Cal. 335, 11 Morr. Min. Rep. 31. Malmstrom v. People's D. Co. (Nev.), 16 Greeley etc. Co. v. House, 14 107 Pac. 98. Colo. 549, 24 Pac. 329. 462 Ch.20. MEANS OF USE. (3ded.)493 that could not be anticipated, 19 or from rainstorms of such unusual severity as to surprise caution. 20 A flood resulting from an unprecedented rainstorm causes no liability, 21 but floods that are of periodical occurrence must be guarded against by the ditch- owner, as it is possible to take precautions against floods of that kind. 22 In the last 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 mountains above. The overflow so caused is periodical, and may be, and is, antici- pated by all persons inhabiting the regions where the alleged damage occurred. The obligation rested on defendant to keep the banks of its canal in repair. It was bound to use ordinary diligence for this purpose. The diligence required, however, must be commensurate with the duty, and the duty is that ordinarily employed by a prudent business man when dealing with his own affairs under the circumstances which surround him and call his mind and energy into action." 23 In another case it is said: "If the defendant was not bound to provide against unheard-of floods, he was at least bound to provide against such as had occurred not more than three years prior to the construction of the ditch." 24 Extraordinary rainfalls must be guarded against if experience shows them to be recurrent even though at irregular intervals. 25 It is thus not true to say that only "acts of God" absolve from liability for flood, since 'reasonable care cannot guard against some floods which still fall short of technical "vis major." Only vis major will absolve from breach of contract, however, as distin- guished from tort, and dealing with a contract in this connection, it has been said that floods or extraordinary freshets, in order to come within "act of God" must be more than such rises or high 19 Proctor v. Jennings, 6 Nev. 83, Bluick v. Chicago etc. Co. (Iowa), 115 3 Am. Kep. 240, 4 Morr. Min. Rep. N. W. 1013. 265. 22' The Salton Sea Cases, 172 Fed. ,, n 10 820; Turner v. Tuolumne etc. Co., 26 * U SP% \ M Iy 784" II Cal- 397, 1 Morr. Min. Rep. 107; Chi- Utah 343, 72 Am. St. Rep. 784, 54 dester y > Consolidated D ch c 59 Pac. 1009. Cal 197 21 Mathews v. Kinsell, 41 Cal. 512; 23 Chidester v. D. Co.,' supra. Chidester v. Consolidated Ditch Co., 24 Burbank v. West Walker River 59 Cal. 197; Town of Jefferson v. Ditch Co., 13 Nev. 431. Hicks, 23 Okl. 684, 102 Pac. 79 25 Fairbury etc. Co. v. Chicago etc. (dictum); Bridgeport v. Bridgeport Co., 79 Neb. 854, 113 N. W. 535, 13 etc. Co., 81 Conn. 84, 70 Atl. 650; L. R. A., N. S., 542. 494 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 463 water in a stream as are usual and ordinary and reasonably anticipated at particular periods of the year. 1 Floods recurrent, though at irregular intervals, are not within ' ' act of God," so as to protect a gold-dredging company from damage to a populous community by overflow of dam. 2 (3d ed.) 463. Same. The statute of limitation on an action for dam- age from seepage begins to run, not from construction of the canal, but from the first visible damage, if of a permanent kind ; and successive actions will not lie. The statutory limitation is complete within the period after the first visible damage. 3 The owner of land upon a watercourse may construct an em- bankment thereon to protect his land from the superabundant water in times of flood, but, in doing so, he must so erect it that the natural and prbbable consequences of the embankment in times of ordinary floods will not be to cause the overflow water to erode or destroy the lands of other proprietors on the stream. 4 A railway must provide culverts over a ravine, even though not a watercourse. 5 1 Ryan v. Rogers, 96 Gal. 349, 31 Pac. 244. See Mulrone v. Marshall, 35 Mont. 238, 88 Pac. 797. Concerning damages from flood in general, see 57 Cent. L. J. 268. 2 City of Oroville v. Indiana Gold Dredging Co. (Cal. 1908), 165 Fed. 550. See "Storm Waters," supra, sec. 347. Act of God denned (floods). Gibson v. Cascade etc. Co. (1909), 54 Wash. 289, 103 Pac. 11; Salton Sea Cases, 172 Fed. 792; City of Oro- ville v. Indiana etc. Co., 165 Fed. 550; Chidester v. D. Co., 59 Cal. 203; Greeley Irr. Co. v. Von Trotha (Colo.), 108 Pac. 985. Extraordi- nary flood held act of God. Eagan v. Central Vermont Ry., 81 Vt. 141, 130 Am. St. Rep. 1031, 69 Atl. 732, 16 L. R. A., N. S., 928. De- fendant has burden of proving act of God. Buel v. Chicago etc. Co., 81 Neb. 130, 116 N. W. 299. An "ex- traordinary flood" is one of those visitations whose coming is not fore- seen by the usual course of nature, and whose magnitude and destructive- ness could not have been anticipated and prevented by the exercise of 464-472. (Blank numbers.) ordinary foresight. (Quoting 13 Ency. of Law, 2d ed., p. 686.) Town of Jefferson v. Hicks (1909), 23 Okl. 684, 102 Pac. 79. See Broadway Mfg. Co. v. Leavenworth Co., 81 Kan. 616, 106 Pac. 1034. 3 Middlekamp v. Bessemer etc. Co. (1909), 46 Colo. 102, 103 Pac. 280, 23 L. R. A., N. S., 795. 4 Town of Jefferson v. Hicks (1909), 23 Okl. 684, 102 Pac. 79. 5 Quinn v. Chicago Ry. etc. Co. (1909), 23 S. D. 126, 120 N. W. 884. See Missouri etc. Co. v. Cannon (Tex. Civ. App.), Ill S. W. 661. Concerning injunction against struc- tures which cause flooding of land by obstructing the flow of water, see Pealer v. Gray's etc. Co. (1909), 54 Wash. 415, 103 Pac. 451; Hastie v. Jenkins (1909), 53 Wash. 21, 101 Pac. 495 ; Gibson v. Cascade etc. Co. (1909), 54 Wash. 289, 103 Pac. 11. Measure of damages for flooding. See Tosini v. Cascade etc. Co. (S. D. 1908), 117 N. W. 1037. Regarding floods, see, also, supra, sec. 348, and infra, sec. 828. 473 Ch.21. QUANTITY OF WATER. (3ded.) 495 CHAPTER 21. LIMITATIONS ON QUANTITY OF WATER. A. CAPACITY OF STRUCTURES. 473. Introductory. 474. The original claim. 475. Capacity of ditch The possessory test. 476, Capacity of ditch ceasing to be a measure. 477. Same. B. BENEFICIAL USE. 478. Beneficial use The final test. 479. Same Even if less than capacity of ditch. 480. Time at which beneficial use is to be figured. 481. What constitutes waste. 482. Same. C. ANNUAL INCREASE OF USE. 483. Future needs. 484. Same. 485. Same. 485a. Same. D. DUTY AND MEASUREMENT OF WATER. 486. Measurement of water. 487. Duty of water. 488. Duty of water as affected by loss in transmission. 489. Summary. 490-495. (Blank numbers.) A. CAPACITY OF STRUCTURES. (3d ed.) 473. Introductory. Three tests of quantity are found in the decisions. First, the original claim, which must obviously be so because of the rule permitting successive appropriations. Second, the capacity of the ditch, because an appropriation, being created by taking possession of the stream, could not exceed the amount diverted and taken into possession. In the early cases, when the right was unquestionably accepted as a possessory right on the public domain, the capacity of the ditch was frequently taken as the chief test, because it fixed the amount in possession. Third, the amount beneficially used, because all that is not used within a reasonable time is regarded as aban- 496 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 474 doned. To-day, however, the third has overshadowed all the others, being narrower than the others, and now most strongly insisted upon; being the strongest instance of the change now going on in the law from a possessory system to a specific use system. 1 (3d ed.) 474. The Original Claim. The appropriator is limited to the quantity first appropriated, and he cannot divert more than that as against subsequent appropriators. 2 By the early law before the code in California the appropriator was limited to the amount originally claimed, and the amount claimed .was determined largely from the means used, and the purpose intended, 3 and such would still be the rule in California for an appropriator by actual diversion, the code formalities not being followed. An appro- priation made under the present statutes of all States, however, requires the amount claimed to be specially stated in the notice or in the application for permit, and the appropriation is limited to that as the maximum. 4 The amount claimed in the notice is the first limit. 5 This is quite obvious, being necessary for the protection of subsequent appropriators. As against subsequent appropriators not existing at the time of the enlargement of one's claim, however, the en- largement may, of course, be made, just as a new appropriation could be made, being in accord with the established doctrine of priority. 6 (3d ed.) 475. Capacity of Ditch The Possessory Test. The ap- propriator, by claiming more than he actually diverts, gets no right to divert the surplus later as against intervening claim- ants ; and hence, the capacity of his ditch, if less than the amount 1 See cross-references, supra, sec. Co., 13 Cal. 220, 1 Morr. Min. Rep. 139. 626; McKinney v. Smith, 21 Cal. 374, 2 Senior v. Anderson, 115 Cal. 496, 1 Morr. Min. Rep. 650; Toohey v. 47 Pac. 454; Union etc. Co. v. Dang- Campbell, 24 Mont. 13, 60 Pac. 396. berg, 81 Fed. 73; Becker v. Marble 4 Supra, sec. 371 et seq., 408 et seq. Creek etc. Co., 15 Utah, 225, 49 Pac. 5 Last Chance etc. Co. v. Heilbron, 892, 1119. 86 Cal. 1, 26 Pac. 523. 3 White v. Todd's Valley etc. Co., . 6 Beaver etc. Co. v. St. Vrain etc. 8 Cal. 443, 68 Am. Dec. 338, 4 Morr. Co., 6 Colo. App. 130, 40 Pac. 1066; Min. Rep. 536; Ortman v. Dixon, 13 Hector etc. Co. v. Valley etc. Co., 28 Cal. 33 j McDonald v. Bear River etc. Colo. 315, 64 Pac. 205. 475 Ch. 21. QUANTITY OF WATEE. (3ded.) 497 claimed, is the second test of the amount to which he is entitled, allowing a reasonable time after completion of the ditch to remove boulders or other obstructions. 7 The quantity of water appro- priated is measured by the capacity of the ditch at the smallest point, as determined by evidence of size and grade. 8 An appro- priation is limited to capacity of ditch, and surplus thereover belongs to later appropriators. 9 The rule under these circum- stances was thus stated by the early supreme court of Califor- nia: 10 "He is entitled to have the water [of the stream flowing down to his ditch] undiminished in quantity, so as to leave suffi- cient to fill his ditch as it existed at the time the subsequent appropriations above him were made." The early supreme court of Nevada formulated the rule in somewhat more precise terms. "It seems that the quantity of water appropriated is to be meas- ured by the capacity of the ditch or flume at its smallest point, that is, at the point where the least water can be carried through it." 11 Rights of tenants in common, claiming a water-right through the construction of a canal, are determined by the capac- ity of the canal, and not by the subsequent diversion. 12 . In determining what the capacity of a given ditch is, in a case where testimony respecting the carrying capacity of a ditch varied from two hundred and twenty-nine to six hundred inches, the court', after examining the evidence, found the true capacity to be only three hundred inches, and held that a ditch of capacity of three hundred inches at the intake should deliver to the place of use four miles away, two hundred and seventy to two hundred and eighty inches, the difference being the allowance for seepage 7 White v. Todd's etc. Co., 8 Cal. 8 Ophir S. M. Co. v. Carpenter, 6 443, 68 Am. Dec. 338, 4 Morr. Min. Nev. 393, 4 Morr. Min. Rep. 653; Eep. 536; Ortman v. Dixon, 13 Cal. Barnes v. Sabron, 10 Nev. 217, 4 Morr. 33; McKinney v. Smith, 21 Cal. 374, Min. Rep. 673; Caruthers v. Pember- 1 Morr. Min. Rep. 650; Posachane etc. ton, 1 Mont. Ill, 4 Morr. Min. Rep. Co. v. Standart, 97 Cal. 476, 32 Pae. 622; Browning v. Lewis, 39 Or. 11, 64 532; Bean v. Stoneman, 104 Cal. 49, Pac. 304. 37 Pac. 777, 38 Pac. 39; Senior v. An- 9 Driskill v. Rebbe, 22 S. D. 242, derson, 115 Cal. 496, 47 Pac. 454; 117 N. W. 135. San Luis etc. Co. v. Estrada, 117 Cal. 10 Bear R. Co. v. New York Co., 8 168, 48 Pac. 1075; McDonald v. Lan- Cal. 327, 4 Morr. Min. Rep. 526. nen, 19 Mont. 78, 47 Pac. 648; 11 Ophir S. M. Co. v. Carpenter, 4 Whited v. Gavin (Or.), 105 Pac. 396; Nev. 534, 4 Morr. Min. Rep. 640, 6 Pomeroy on Riparian Rights, sees. 80, Nev. 393, 4 Morr. Min. Rep. 653. 81; Kinney on Irrigation, sees. 162, 12 Hough v. Porter, 51 Or. 318, 95 166. See 60 Am. St. Rep. 808, 814, Pac. 732, 98 Pae. 1083, 102 Pac. 728. note. Water Rights 32 498 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 475 and evaporation in transit. 13 Carrying capacity of ditch can be determined from width, depth and grade. 14 Under a statute in Colorado, 15 appropriations may be made for filling a reservoir, measured by the capacity of the reservoir on a single filling. In Windsor Co. v. Lake Supply Co. 16 it was held that the Colorado statute providing for reservoir appropria- tions forbids more than one filling on one. priority in any one year, as against other reservoirs not yet filled. 17 As to a ditch, "capacity" means continuing carrying capacity, in consideration with beneficial use, but as to a reservoir, it means capacity in one complete filling only. 18 The investigations of the United States Department of Agri- culture of the capacity of various types of conduits 19 show that there is a wide variation of loss. (Even in the same canal ten times as much water will be lost at one time than at another). Large canals lose less than small ones. The loss for all canals taken by straight average is probably about five and seventy- seven one-hundredths per cent per mile. Between stream and land a total of fifty per cent is lost in old canals and sixty per cent in new ones. Cement-lined canals lose little in transporta- tion. For example, the Gage canal in Southern California is cement lined and the water is distributed through underground pipes and ninety-two per cent of the water reaches the land. 20 Canals without lining at all require about three and five-tenths to four acre-feet per year at the head, after conditions have become settled. 13 Hough v. Porter, 51 Or. 318, 95 18 "A reservoir appropriation, like Pac. 732, 98 Pac. 1083, at 1105, 102 that for a canal, cannot be made to Pac. 728. do double duty. To permit a double 14 Bates v. Hall, 44 Colo. 360, 98 filling of a reservoir in any one year Pac. 3. And as to measurement of on one appropriation, as against junior capacity of ditch, see Water Supply rights, is just as obnoxious to the Co. v. Larimer etc. Co., 24 Colp. 322, principle mentioned as if the appro- .51 Pac. 496, 46 L. R. A. 322; Broad- priation for immediate irrigation, moor etc. Co. v. Brookside etc. Co., 24 through a canal, after it had been Colo. 541, 52 Pac. 792. applied to the particular land for 15 M. A. S., sees. 2403, 2408. which it was diverted, was then made 16 44 Colo. 214, 98 Pac. 729. to serve other lands." Windsor Co. v. 17 Quaere, whether, after all reser- Lake Supply Co., 44 Colo. 214, 98 Pac. voirs in a water district have, in any 729. one season or year, been once filled to 19 Report of Office of Experiment their decreed capacity, a second filling Stations for yecr ending June, 1908, may be had, and, if so, in what order page 370 et seq. they shall be filled. Left open in 20 "While there is no doubt that same ease. cement concrete is the most effective 476 Ch. 21. QUANTITY OF WATER. (3d ed.) 499 (3d ed.) 476. Capacity of Ditch Ceasing to be a Measure. Meas- urement of right by capacity of ditch is an instance of the possessory origin of the law, and its displacement as a measure by beneficial use is an instance of how the possessory origin of the law is disappearing. The right arose as a possessory one on the public domain (though turned into a freehold by the act of 1866), and as such took on the characteristics based upon the idea of possession of the stream or of a portion of its flow. Actual diversion (the taking of possession) created the right; capacity of ditch (the amount in possession) measured the right; the right to possession was independent of mode or place of use, which could be changed at will; the right to the flow remained until actual abandonment (voluntary relinquishment of possession). Hence the above rul- ings making capacity of works the test, supported by cases of which Moore y. Clear Lake W. W. 21 is a leader, applying the doc- trine of injuria sine damno to protect the flow to ditch capacity, even though plaintiff were not then using the water and suffered no present damage (so long as he did not intend an abandon- ment). 22 Thus, in the case just cited, frequently since approved, it was laid down (as the headnote correctly reports) : "In an ac- tion to restrain the diversion of water from a stream, the com- plaint alleged that the plaintiff was the owner and in possession of a certain ditch connected with the stream, and that he had a right to appropriate for use and distribution so much of the water of the stream as the ditch had capacity to carry. Held, that an allegation to the effect that the plaintiff was in a position to use or distribute the water was unnecessary. ' ' * as regards seepage, it is also the most the ditch with oil may be justified, expensive, the cost being more than while a more expensive lining would six times that of the heavy oil lining be impracticable. The durability of (three and two-thirds gallons -per the oil lining has not been thoroughly square yard), which saved fifty and tested, and it may be that more ex- four-tenths per cent of the water which tended experience will show them to be would have been lost were the ditch less valuable than these experiments not lined, while the saving with the would indicate." concrete ditch is eighty-six and six- 21 68 Cal. 147, 8 Pac. 816. See tenths per cent, or only one and three- infra, sec. 642. fourths times as large. Where water 22 See cross-references supra, sec. is very valuable there is no doubt that 139. the concrete ditch is more permanent 1 In the opinion it is said, among and economical. But where the water other things: "Here the point is made is not so scarce, and a little waste will that the court fails to show that the do ao damage, the expense of lining plaintiff is in a position to use the 500 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 476 A change, however, is rapidly going on in the law from a posses- sory to a specific use system, and capacity of ditch has been almost wholly displaced by beneficial use as a measure of right. The first step in this regard was to allow ditch capacity to govern only for a certain number of years, making beneficial use the sole test where nonuse exceeded the time limit. Of this restrictive stage Smith v. Hawkins 2 is the leading case, allowing ditch capacity to govern for five years, but not if nonuse in whole or part exceeds that period ; and following this stage, most States by statute fixed a similar time limit of from two to five years. 3 But the change did not stop with this stage. Now, the great weight of authority dis- regards capacity of ditch entirely, without regard to any length of time in which it remained out of use and without regard to any intention not to abandon it. Actual use within a reasonable time prior to the time a controversy arises is alone the test stated to-day in the decisions generally. The reader should note well, however, that this is an instance of a wide-bearing change in the law, leaving conflicting lines of authorities in this and other connections. Thus, the California law holds the law to the public domain where it had its possessory origin, Colorado does not; the California code holds to actual diversion as completing the right, Colorado holds to actual appli- cation to use; the right is generally held independent of mode or place of use, and yet there is a strong tendency to make it inhere inseparably in the specific initial use made of it; some authorities hold a distributing company which makes' the diversion to be the appropriator, others the consumer who actually makes the use; some authorities hold the right to remain indefinitely, though in nonuse, until voluntary intentional abandonment of possession, and grant injunctions against interference, though without damage, until such abandonment; others so hold for a definite period of years though not indefinitely, and still others hold solely to actual use within a reasonable time before the time of controversy, and refuse injunctions absolutely in the absence of actual damage to present use ; most of these conflicting rulings being not confined to different jurisdictions, but occurring in different cases within the water himself, or that he is in any etc. Moore v. Clear Lake Co., 68 Cal. position which gives him a right to 146, at 150, 8 Pac. 816. furnish the water to others. The 2 HO Cal. 122, 42 Pac. 453. Af- allegation of these matters is not es- firmed in 120 Cal. 86. ential to plaintiff's cause of action," * Infra, see. 576. 477 Ch. 21. QUANTITY OF WATER. (3ded.) 501 same jurisdiction. 4 In other words, the law is in a state of evolu- tion, with the end of making the requirements of some specific initial use its sole "basis, measure, and limit." 5 ' (3d ed.) 477. Same. Whether a complete change from a possessory to a specific purpose system is desirable is a difficult question in the policy of the law. Under the possessory system, any use which is not waste is a beneficial use. It admits of emphatic expression. 6 On the other hand, under the specific use system, it is sometimes stated as one enforcing economical use ; nor are these two forms of expression synonymous. 7 While waste will not necessarily exist because you might get along with less, the most economical use would require the lesser use and make irrigation perilous. It is frequently said 8 that the appropriators and users of the waters will be required and commanded to so divert, use and apply the waters as to secure the largest duty and greatest service therefrom. 9 Yet, a lesser duty and service than the largest might still fall short of waste. The difference in the mode of expression is that the prohibition of waste allows what engineers call a "factor of safety"; while the requirement of most economical use is like keeping a bridge continually loaded to its theoretical capacity. Some other considerations are noted in a recent report of the United States Department of Agriculture, saying: "The water * See cross-references supra, sec. cannot waste it, but it is their duty 139. to allow such portion as they have no 5 See Drach v. Isola (Colo.), 109 immediate need for to remain in the Pac. 748, as an instance in Colorado of natural stream, or, if diverted, to re- how the courts are revising the old de- turn such surplus again into the same crees based upon capacity of ditch, stream, where, unless they then intend and now holding them open to re- to recapture it, it becomes subject to examination based upon beneficial use. diversion by the various ditches in ac- 6 Such emphatic expressions there- cordance with their numerical priori- under are possible as, for example, ties." Burkart v. Meiberg, 37 Colo. "Perhaps the appellant's counsel is of 187, 86 Pac. 98, 6 L. R. A., N. S., the belief that the plaintiff, having 1104, citing La Jara Co. v. Hansen, 35 made the first appropriation, is en- Colo. 105, 83 Pac. 644. titled to have the water come down to 7 Judge J. M. Seawell in California him to the extent of his appropria- Past. Co. v. Madera etc. Co. (Superior tion, whether he has use for it or not. Court of Madera County, California, If so, he is mistaken. Water is too Nov. 13, 1906). precious in this arid climate to permit 8 For example, in Van Camp v. its being unnecessarily wasted." Emery, 13 Idaho, 202, 89 Pac. 752. Roeder v. Stein, 23 Nev. 92, 42 Pac. "The highest and greatest possible 867. In another case : "If the defend- duty." Farmers' etc. Co. v. Riverside ants have no present or immediate Irr. Dist. (1909), 16 Idaho, 52, 102 need of the full quantity of water Pac. 481; Niday v. Barker, 16 Idaho, which they may divert and use, they 73, 101 Pac. 254. 502 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 478 laws of the arid States are of two general classes, considered from this point of view : those which allow of the acquirement of rights to definite quantities of water and those which limit rights to the necessities of a definite tract of land. Under laws of the former class canal owners are free to use their water supply on as large or as small an area as seems to them best, and since the more economically the water is used the larger area it will serve and the larger returns it will bring, every consideration leads to an economi- cal use of water. Canal owners receive the direct benefit of their economy. Under laws of the latter class, limiting rights to the needs of a particular tract of land, with a maximum limit fixed, as in Wyoming and Nebraska, there can be no incentive to economy, since any water made available by economical use goes to others than the one making the saving. The inevitable tendency is for farmers to use as much as possible within the maximum fixed, in order that they may not by present economy decrease their supply for future needs. The laws of all .the arid States prohibit waste and authorize the water officials to stop waste, but between positive waste and the most economical use there is a wide margin. This system has the added disadvantage of making rights indefinite. When prior rights are fixed at a definite quantity of water, subse- quent appropriators know what may be taken by the prior appro- priators and can estimate fairly well their own chances for water, but under the other system a change in the type of agriculture by prior appropriators may so enlarge their use as to destroy entirely the value of later rights." 10 B. BENEFICIAL USE. (3d ed.) 478. Beneficial Use The Final Test. The appropriator is not to-day entitled to the quantity actually diverted and taken into possession if he uses only a portion of it ; his right is limited to the amount so actually used. This is now strenuously enforced. 11 Actual use within a reasonable time (not exceeding the statutory 10 Report of the Office of Experi- Haggin, 61 Cal. 305; Barrows v. Fox, mont Stations of the U. S. Department 98 Cal. 63, 32 Pac. 811; Riverside etc. of Agriculture for 1908. Co. v. Sargent, 112 Cal. 230, 44 Pac. 11 Alasla. Xetchikan Co. v. Oiti- 560; Santa Paula etc. Works v. zens' Co., 2 Alaska, 120. Peralta, 113 Cal. 38, 45 Pac. 168; Arizona. Sullivan v. Jones (Ariz.), Senior v. Anderson, 115 Cal. 496, 47 108 Pac. 476. Pac. 454; Smith v. Hawkins, 120 Cal. California. White v. Todd's etc. 86, 52 Pac. 139, 19 Morr. Min. Rep. Co., 8 Cal. 443, 68 Am. Dec. 338, 4 243 ; Senior v. Anderson, 130 Cal. 290, Morr. Min. Rep. 536 j Dougherty v. at 297, 62 Pae. 563; Bledsoe v. 478 Ch.21. QUANTITY OF WATER. (3ded.) 503 period, if any, for forfeiture of right by nonuse), 12 prior to the time a controversy arises, has become the sole measure of right. 13 Decrow, 132 Cal. 312, 64 Pae. 397; Barneich v. Mercy, 136 Cal. 205, 68 Pac. 589 ; x Strong v. Baldwin, 137 Cal. 432, 70 Pac. 288 ; Hewitt v. Story, 64 Fed. 510, 12 C. C. A. 250, 30 L. E. A. 265. The rule is enacted in section 1411 of the Civil Code. Colorado. Yunker v. Nichols, 1 Colo. 551, 8 Morr. Min. Eep. 64; Combs v. Agric. D. Co., 17 Colo. 146, 31 Am. St. Eep. 275, 28 Pac. 966; X. Y. etc. Co. v. Buffalo etc. Co., 25 Colo. 529, 55 Pac. 720; Platte Valley Co. v. Central Trust Co., 32 Colo. 102, 75 Pac. 391; Nichols v. Mclntosh, 19 Colo. 22, 34 Pac. 278; Church v. Stillwell, 12 Colo. App. 43, 54 Pac. 395; United States etc. Co. v. Gallegos, 89 Fed. 772, 32 C. C. A. 470; Burkart v. Meiberg, 37 Colo. 187, 86 Pac. 98, 6 L. E. A., N. S., 1104; Cooper v. Shannon, 36 Colo. 98, 118 Am. St. Eep. 95, 85 Pac. 175; Town of Sterling v. Pawnee Co., 42 Colo. 421, 94 Pac. 341, 15 L. E. A., N. S., 238; Tubbs v. Epberts, 40 Colo. 498, 92 Pac. 220; Windsor Co. v. Hoff- man Co. (Colo. 1910), 109 Pac. 423; Same v. Same (Colo. 1910), 109 Pac. 425. Idaho. Van Camp v. Emery, 13 Idaho, 202, 89 Pac. 752; Drake v. Earhart, 2 Idaho, 750, 23 Pae. 541; Stickney v. Hanrahan, 7 Idaho, 424, 63 Pac. 189; Kirk v. Bartholomew, 2 Idaho, 1087, 29 Pac. 40. Montana. Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396; Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741; Kleinschmidt v. Greiser, 14 Mont. 484, 43 Am. St. Eep. 652, 37 Pae. 5 (gradual increase allowed) ; Creek v. Bozeman W. Co., 15 Mont. 121, 38 Pac. 459; Anderson v. Cook, 25 Mont. 330, 64 Pae. 873, 65 Pac. 113; Hilger v. Sieben (1909), 38 Mont. 93, 98 Pac. 881; Stats. 1907, c. 185, pp. 109, 489. See, also, Civ. Code, sees. 1881, 1884. Nebraska. Courthouse etc. Co. v. Willard, 75 Neb. 408, 106 N. W. 463; Farmers' Irr. Dist. v. Frank, 72 Neb. 136, 100 N. W. 286; Cobbey's Ann. Stats., sees. 6772, 6774. Nevada. Twaddle v. Winters, 29 Nov. 88, 85 Pac. 280, 89 Pac. 289; Simpson v. Williams, 18 Nev. 432, 4 Pac. 1213; Boeder v. Stein, 23 Nev. 92, 42 Pac. 867; Union Mill Co. v. Dangberg (Nev.), 81 Fed. 73; Eodgers v. Pitt (Nev.), 89 Fed. 420, 129 Fed. 932; Gotelli v. Cardelli, 26 Nev. 382, 69 Pac. 8; Berry v. Equi- table etc. Co., 29 Nev. 451, 91 Pac. 537; Stats. 1907, p. 30, sec. 4. New Mexico. Millheiser v. Long, 10 N. M. 99, 61 Pac. Ill; Hagerman Co. v. McMurray (N. M.), 113 Pac. 823, citing this book; Stats. 1907, p. 71, sees. 2, 39. North Dakota. Stats. 1905, c. 34, sec. 2; Eev. Codes (1905), see. 7604 et seq. Oregon. Williams v. Altnow, 51 Or. 275, 95 Pac. 200, 97 Pac. 539; Sim- mons v. Winters, 21 Or. 35, 28 Am. St. Eep. 727, 27 Pac. 7; Hindman v. Eizor, 21 Or. 112, 27 Pac. 13; Cole v; Logan, 24 Or. 304, 33 Pac. 568 ; Bow- man v. Bowman, 35 Or. 279, 57 Pac. 546; Cole v. Logan, 24 Or. 304, 33 Pac. 568 ; Glaze v. Frost, 44 Or. 29, 74 Pac. 336; Bolter v. Garrett, 44 Or. 304, 75 Pac. 142; Gardner v. Wright, 49 Or. 609, 91 Pac. 286; Mann v. Parker, 48 Or. 321, 86 Pac. 598; Hough v. Porter, 51 Or. 318, 95 Pae. 732, 98 Pac. 1083, 102 Pae. 728; Porter v. Pettengill (Or. 1910), 110 Pac. 393; Whited v. Gavin (Or. 1909), 105 Pac. 396. South Dakota. Stenger v. Tharp, 17 S. D. 13, 94 N. W. 402 ; Stats. 1907, e. 180, sec. 2. Utah. Manning v. Fife, 17 Utah, 232, 54 Pac. Ill; Becker v. Marble etc. Co., 15 Utah, 225, 49 Pac. 892, 1119; Hague v. Nephi Irr. Co., 16 Utah, 421, 67 Am. St. Eep. 634, 52 Pae. 765, 41 L. E. A. 311 ; Nephi Irr. Co. v. Vickers, 29 Utah, 315, 81 Pac. 144; Sowards v. Meagher (Utah, 1910), 108 Pac. 1113; Stats. 1911, c. 104, p. 145, sec. 13, saying "irrespec- tive of carrying capacity of ditch." Washington. Pierce's Code 1905, sec. 5836; Miller v. Wheeler (Wash. 1909), 54 Wash. 429, 103 Pac. 641, 23 L. E. A., N. S., 1065. Wyoming. Johnston v. Little Horse etc. Co., 13 Wyo. 208, 110 Am. St. Eep. 986, 79 Pae. 22, 70 L. E. A. 341. Stats. 1907, p. 138, sec. 12, saying "irrespective of carrying capacity of ditch." 12 Infra, sec. 576. 13 As to what is a reasonable time, see sees. 383, 484, 485, 567 et seq. 504 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 478 "When the appropriator is no longer using the water either for the season or any specific time, his right to cut off or interfere with the flow of the stream for the time being lapses." 14 In one case 15 it is held that the appropriation "must also be limited in its ap- plication to the acreage of land upon which previously applied, except at such times as the water or some part thereof may not be needed by others $ and the owner not requiring its use should not be permitted to complain of its application to a beneficial use by others interested. In other words, at all times that the water is not required by one or more, it must be at the disposal o| others in the order of their relative rights thereto. " 16 In an oft-cited opinion by Judge Hawley it is said: "In the appropriation of water, there cannot be any 'dog in the manger' business by either party, to interfere with the rights of 'Others, when no beneficial use of the water is or can be made by the party causing such interfer- ence." 17 The same case holds that waste in the use of water is not permissible. To secure protection in the diversion and use of the waters of a stream for irrigation, or any other purpose, there must be an economic, beneficial and reasonable use thereof, so as to prevent waste. An excessive diversion of water for any purpose cannot be regarded as a diversion for a beneficial use. Water codes usually contain the provision "beneficial use shall be the basis, the measure and the limit of the right. ' ' 18 And statutes generally enact the same rule in other forms. 19 Beneficial use is coming to be called "conservation" of the water. 20 14 Hutchinson v. Watson D. Co., 16 18 For example, Nev. Stats. 1903, p. Idaho, 484, 133 Am. St. Rep. 125, 101 24, sec. 1, 1907, p. 30; N. M. Stats. Pac. 1059, holding that an ap- 1907, c. 49, p. 71, sec. 2 ; N. D. Stats. propriator must leave the water in its 1905, e. 34, sec. 2; Rev. Codes (1905), natural channel except at such times sec. 7604 et seq. ; S. D. Stats. 1905, as he is actually using it. See, also, p. 201, sec. 2 ; Utah Comp. Laws, 1907, Williams v. Altnow, 51 Or. 275, 95 see. 1288x20. In the National Irri- Pac. 200, 97 Pac. 539; Whited v. gation Act, the law of appropriation Cavin (Or. 1909), 105 Pac. 396. is recognized, "Provided that the right 15 Hough v. Porter, 51 Or. 318, 95 to the use of water acquired under Pac. 732, 98 Pac. 1083, 102 Pac. 728. the provisions of this act shall be ap- 16 Citing Mann v. Parker, 48 Or. purtenant to the land irrigated, and 321, 86 Pac. 598; Gardner v. Wright, beneficial use shall be the basis, the 49 Or. 609, 637, 91 Pac. 286; Williams measure and the limit of the right." v. Altnow, 51 Or. 275, 95 Pac. 200, 97 19 See note 11, supra. Pac. 539. 20 Cases cited supra, sec. 137. 17 Union Mining Co. v. Dangberg, 81 Fed. 73. 479 Ch.21. QUANTITY OF WATER. (3d ed.) 505 (3d ed.) 479. Same Even if Less Than Capacity of Ditch. Bene- ficial use controls to-day, even if less than capacity of ditch. 21 "The right of a party in appropriating water is limited to the amount he actually uses for a beneficial purpose, not exceeding the carrying capacity of his ditch or canal." 22 In a California case ^ the court said, per Mr. Justice Van Fleet (now justice of the United States district court) : "An appro- priation of water by the owner of lands by means of a ditch is not measured by the capacity of the ditch through which the ap- propriation is made, but is limited to such quantity, not exceeding the capacity of the ditch, as the appropriator may put to a useful purpose." 24 In a Colorado case 25 it is said: "In order to consti- tute an appropriation of water there must not only be a diversion of the water from the stream and a carrying of it to the place of use, but it must be beneficially applied, and the measure of the appropriation does not depend alone upon the amount diverted and carried, but the amount which is applied to a beneficial use must also be considered. For instance, in the case of New Mercer Ditch Co. v. Armstrong, 1 it was determined by the decree that the ditch had a carrying capacity of about thirty-three cubic feet of water per second of time. It was constructed to irrigate one hun- dred and twenty acres of land, and it was determined that the appropriator was entitled to only so much water as he could bene- ficially apply upon that land." 2 21 Riverside etc. v. Sargent, 112 Gal. 24 "Not by the amount which he took, 230, 44 Pac. 560; Smith v. Hawkins, not by the amount which he claimed, 120 Cal. 86, 52 Pac. 139, 19 Morr. not, as the court decrees, by an amount Min. Rep. 243; Bledsoe v. Decrow, 132 sufficient thoroughly and properly to Cal. 312, 64 Pac. 397; Walker v. Lill- irrigate a thousand acres of land/' ingston, 137 Cal. 401, 70 Pac. 282 ; Leavitt v. Lassen Irr. Co., 157 Cal. 82, Barnes v. Sabron, 10 Nev. 217, 4 Morr. 106 Pac. 404 (citing Senior v. Ander- Min. Rep. 673; Bowman v. Bowman, son, 115 Cal. 496, 47 Pac. 454; Smith 35 Or. 279, 57 Pac. 546; Millheiser v. v. Hawkins, 120 Cal. 86, 52 Pac. 139, Long, 10 N. M. 99, 61 Pac. Ill; 19 Morr. Min. Rep. 243; Strong v. Stenger v. Tharp, 17 S. D. 13, 94 N. Baldwin, 137 Cal. 440,' 70 Pac. 288). W. 402; Smith v. Duff (1909), 39 In Whited v. Gavin (Or.), 105 Pac. 396, Mont. 382, 133 Am. St. Rep. 587, 102 this is said to be "almost axiomatic." Pac. 984; Leavitt v. Lassen Irr. Co. In Salt Lake City v. Gardner (Utah), (1909), 157 Cal. 82-, 106 Pac. 404; 114 Pac. 147, "elementary and no Whited v. Gavin (Or. 1909), 105 Pac. longer questioned by anybody." 396; Ison v. Sturgill (Or. 1910), 109 2 5 Woods v. Sargent, 43 Colo. 268, Pac. 579. 95 Pac. 932. 22 Stenger v. Tharp, 17 S. D. 13, 94 N. W. 402. 1; 21 Col - 357 > 40 Pac - 989 - 23 Smith v. Hawkins, 120 Cal. 86, at 2 See, Union Mining Co. v. Dang- 88, 52 Pac. 139, 19 Morr. Min. Rep. berg, 81 Fed. 73. 243. 506 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 480 Beneficial use by and needs of the appropriator, and not the quantity originally diverted or the capacity of the ditches con- structed, determines the limit of the appropriator 's rights. Even where a large ditch capacity was originally actually needed and used, lands after years of irrigation do not require the amount first essential, because the law of nature, added to improved methods, greatly reduces, in the course of time, the quantity re- quired. 3 It is sometimes so provided by statute. 4 (3d ed.) 480. Time at Which Beneficial Use is to be Figured. The tendency of decisions to-day is to figure beneficial use solely at the very time when any controversy arises. But, as elsewhere consid- ered, the spirit of the law has always been to allow a reasonable time ; 5 and moreover the statutes specifying a definite number of years for forfeiture of right for nonuse 6 must be given some force. Taking the law as a whole, it is a fair deduction that beneficial use is to be measured a reasonable time (not exceeding the statutory period, if any, for forfeiture by nonuse) prior to the time the con- troversy arises ; the question what is a reasonable time being one of fact in each case. (3d ed.) 481. What Constitutes Waste. The following is a collection of various more or less specific, although disconnected, examples of rulings upon what does and does not constitute beneficial use. No further attempt is made to classify them, partly because no fixed classification exists, 7 the point being one now in the course of rapid development, but chiefly because the question is one of fact, a very general one, to be left broadly to faie jury (or to the court, if sitting without one), and the result in any particular case will depend upon the attitude which the jury (or judge), as reasonable 3 Hough v. Porter, 51 Or. 318, 95 the ditch," etc. (Stats. 1907, p. 138, Pac. 732, 98Pac. 1083, at 1101, 1102, sec. 12; Rev. Stats. 895.) Copied in 102 Pac. 728, citing United States v. Utah Stats. 1911, c. 104, p. 145, see. Conrad Inv. Co. (C. C. Or.), 166 Fed. 13. See 'Montana Stats. 1907, p. .123, 130. 484. 4 In Wyoming: "Rights to the use 5 Supra, sec. 378, diligence; infra, of water shall be limited and restricted sec. 483, future needs; infra, sec. 567 to so much thereof as may be neces- et seq., abandonment. sarily used for irrigation or other 6 Infra, sec. 576. beneficial purposes as aforesaid, ir- 7 See Cascade Co. v. Empire etc. Co. respective of the carrying capacity of (Colo.), 181 Fed. 1011. 481 Ch.21. QUANTITY OF WATER. (3ded.) 507 men, will take toward the evidence as a whole, when presented to them at the trial. Reference should also be made to preceding sections in another chapter considering what constitutes a beneficial purpose. 8 The amount necessary for beneficial use is a question of fact in each case. 9 It is not to be determined by rule or presumption, but by the evidence each case presents to the court or jury. 10 Evidence will be received of the number of acres irrigated and the needs per acre, 11 and of the custom of the locality. 12 The testimony of farmers living in the vicinity regarding the quantity of water re- quired for the irrigation of crops and regarding the capacity of a flume may outweigh the testimony of professional engineers. 13 In Oregon it has been recently held u that where one is entitled to the use of water from a stream, and has between sixty and seventy acres of land in cultivation, including an orchard, it will be as- sumed that a flow of sixty inches of water is ample for his irriga- tion and domestic requirements; thereby, without statute, reaching by presumption substantially the same rule as the maximum limit fixed by the water codes. 15 Beneficial use necessarily varies with the humidity of seasons. 18 An appropriator of water from a stream for irrigating purposes is not confined to the amount of water he used, or to the amount of land he irrigated during certain dry seasons when there was not sufficient water to irrigate all his land or as much as he had previ- ously irrigated. 17 "Dry season" is that season, regardless of the time of the year, when irrigation is necessary for preservation of crops. 18 This season when irrigation can be beneficially applied is also called the ' ' irrigating season. " 19 ' There is but one ' ' irrigating 8 Supra, sec. 378 et seq. i Gotelli v. Cardelli, 26 Nev. 382. X. Y. etc. Co. v. Buffalo etc. Co., 69 Pac. 8. 25 Colo. 529, 55 Pac. 720. 17 Eodgers v. Pitt, 129 Fed. 932, 10 In Schodde v. Twin Falls Co. saying: "During the dry years there (Idaho), 161 Fed. 43, 88 C. C. A. 207, was not sufficient water to furnish the a current-wheel is held per se a waste- necessary supj>ly. Complainant could ful method of use. But as to this not obtain sufficient water to irrigate case, see supra, sec. 310. the land. The complainant certainly 11 Bark v. Bartholomew, 2 Idaho, ought not to be confined to the amount 1087, 29 Pac. 40, 3 Idaho, 367, 29 Pac. of water he used, and to the number 40. of acres irrigated during the dry 12 Eodgers v. Pitt, 89 Fed. 420. seasons." 13 Twaddle v. Winters, 29 Nev. 88, 18 Daly v. Euddell, 137 Cal. 671, 85 Pac. 280, 89 Pac. 289. 676, 70 Pac. 784. 14 Gardner v. Wright, 49 Or. 609, 91 i See Twaddle v. Winters, 29 Nev. Pac. 286. 88, 85 Pac. 280, 89 Pac. 289; Ander- 15 Infra, sec. 487. son v. Bassman, 140 Fed. 14. 508 (3ded.) Pt. III. THE LAW OF PRICE APPROPRIATION., 481 season" each year, and in Idaho is by law defined as extending from April to November ; 20 in one Oregon locality, April to July ; 21 in New Mexico, March 31st to October 15th. 22 During such season, however, 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 neces- sity, and which enjoins others from interfering therewith, is erroneous. 23 Injunction should, it seems, contain a qualification, "while the full capacity is being put to beneficial use." The same result has been reached by holding that, though the words of the injunction referred only to capacity of ditch, yet beneficial use will be implied as the basis of the decree,- though not mentioned. 24 At all times that the water is not required by one, it should be at the disposal of others. 25 The mere fact that an increase is made in the number of acres irrigated, 1 or in the capacity of a mill run with water, 2 does not show the use of more water, since compatible with a more efficient, use of the same amount of water. The mere fact of a sale of part of water-right does not per se show that beneficial use is not being made. 3 But where there is evidence of an unused quantity of water, which is taken by a subsequent claimant, the former cannot claim the right to sell to and charge the latter for the use of such amount as he himself does not utilize, since he has no right to it. 4 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. 5 If one builds a dam, spreading out the water for cattle to wallow in, so that much is lost by evaporation, 20 Twin Falls Co. v. Lind, 14 Idaho, etc. Co. v. Meadow etc. Co., 35 Colo. 348, 94 Pac. 164. 588, 86 Pac. 748; Cache La Poudre 21 Hough v. Porter, 51 Or. 318, 95 etc. Co. v. Larimer etc. Co., 25 Colo. Pac. 732, 98 Pac. 1083, 102. Pac. 728. 144, 71 Am. St. Rep. 123, 53 Pac. 318. 22 N. M. Stats. 1907, p. 71, sec. 5. 2 Union etc. Co. v. Dangberg, 81 23 Gotelli v. Cardelli, 26 Nev. 382, Fed. 73. 69 Pac. 8; Twaddle v. Winters, 29 3 Calkins v. Sorosis etc. Co., 150 Nev. 88, 85 Pac. 283, 89 Pac. 289. Cal. 426, 88 Pac. 1094; Drake v. Ear- 24 Medano etc. Co. v. Adams, 29 hart, 2 Idaho, 716, 23 Pac. 541. But Colo. 317, 68 Pac. 431. cf. Johnston v. Little Horse etc. Co., 25 Mann v. Parker, 48 Or. 321, 86 13 Wyo. 208, 110 Am. St. Rep. 986, 79 Pac. 598; Gardiner v. Wright, 49 Or. Pac. 22, 70 L. R. A. 341. 609, 91 Pac. 286; Hough v. Porter, 51 * Mann v. Parker, 48 Or. 321, 86 Or. 318, 95 Pac. 732, 98 Pac. 1083, Pac. 598. 102 Pac. 728; Whited v. Gavin (Or.), 5 San Luis etc. Co. v. Estrada, 117 105 Pac. 396. Cal. 168,' 48 Pac. 1075 ; Head v. Hale, i Platte etc. Co. v. Central Trust 38 Mont. 302, 100 Pac. 222. Co., 32 Colo. 102, 75 Pac. 391; Fulton 481 Ch. 21. QUANTITY OF WATER, (3d ed.) 509 an injunction will be granted. 6 An appropriates having as much as he needs cannot, by buying up riparian land, get (against other riparian proprietors) an additional amount, having no need for it. 7 The appropriator is not required to furrow his land before irrigat- ing the same. 8 The practice of rotation is becoming more frequent, by which several appropriators pool their rights and use the whole for periods of time, and this often accomplishes a more economical use of water. In one case it is said : 9 ' ' Rotation in irrigation undoubt- edly tends to conserve the waters of the State, and to increase and enlarge their duty and service, and is, consequently, a practice that deserves encouragement in so far as it may be done within legal bounds." It is now provided by statute in Wyoming that "to bring about a more economical use of the available water supply, it shall be lawful for water users owning lands to which are attached water-rights, to rotate in the use of the supply to which they may be collectively entitled; or a single water user, having lands, to which water-rights of a different priority attach, may in like man- ner rotate in use, when such rotation can be made without injury to lands enjoying an earlier priority." 10 Beneficial use is not what is actually consumed but what is actually necessary in good faith. 11 An appropriation, both in time and volume, is to be determined from width, depth, length and grade of ditch, number of acres irrigated therefrom, and the extent of actual use. 12 "In determining the amount of water appro- priated for useful or beneficial purposes the number of acres claimed or owned by each party and the amount of water necessary to the proper irrigation of the same should be taken into considera- tion. " 13 In determining the amount of water which a user applies to a beneficial use, and to which he is entitled as against a subse- quent appropriator, the system of irrigation in common use in the locality, if reasonable and proper under existing conditions, is to be taken as the standard, although a more economical method might be 6 Ferrea v. Knipe, 28 Cal. 340, 87 10 Session Laws 1909, c. 108. Am. Dec. 128. n Farmers' etc. Co. v. Riverside Trr. 7 Senior v. Anderson, 130 Cal. 290, Dist. (1909), 16 Idaho, 525, 102 Pac. 62 Pac. 563; S. C., 138 Cal. 716, 72 481. Pac. 349. 12 Bates v. Hall, 44 Colo. 360, 98 8 Nephi Irr. Co. v. Vickers, 29 Utah, Pac. 3. 315, 81 Pae. 144. Kirk v. Bartholomew, 2 Idaho, Helphrey v. Perrault, 12 Idaho, 1087, 29 Pae. 40, 3 Idaho, 367, 29 451, 86 Pac. 417. Pac. 40. 510 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 482 adopted. 14 Advance in methods of irrigation, and increase in number of users, must be considered in deciding the requirement for beneficial use, and thereby the extent of the appropriation. 15 Recent statutes frequently make waste criminal. (3d ed.) 482. Same. Merely that in the earlier history of the vicin- ity large quantities were diverted and actually applied notwith- standing the ditches first constructed had sufficient capacity to carry such supply, does not necessarily show that such amount was really needed. Beneficial use is measured by conditions at time of suit. Improved methods may limit the amount below that origin- ally used. In Hough v. Porter 16 Mr. Justice King says : ' ' Owing to the little demand and large proportionate supply in use by those along Silver creek and its branches in the early eighties, together with the lack of general knowledge and experience on the subject throughout the state, wasteful methods at that time were, no doubt, common ; but of recent years improved means throughout the West have come into use, and a scarcity of the supply has made a more economic use necessary. The result is that the law has become well settled that beneficial use and needs of the appropriator, and not the capacity of the ditches or quantity first applied, is the measure and limit of the right of such appropriators. 17 .... The farmer at first may have needed but one hundred inches of water and yet constructed ditches carrying three times that quantity, using it in a wasteful manner, which right he still insists upon by reason of the ditch, when first constructed, being of sufficient capacity to carry the excessive supply. It is well settled that such a claim cannot be successfully maintained." 18 In another Oregon case 19 it is said : ' ' He also says that during the time he owned the H Rodgers v. Pitt, 129 Fed. 932, 15 Hough v. Porter, 51 Or. 318, 95 saying: "The court cannot, in the ab- Pac. 732, 98 Pac. 1083, 102 Pac. 728. sence of any law upon the subject, 51 Or 318 95 Pac. 732, 98 Pae. compel the farmers to use any partie- '!* f^ : v i 01 j ,,.,.,.. 17 Citing this book, 2d ed., p. 263; ular system, but it might, in a case geaweard * p acific L ; Co ^ 49 ' & 157 ; where an extravagant and wasteful 88 p ac> 953. Gardner v. Wright, 49 system is used, which demands more Or. 609, 91 Pac. 286; Union Mill, water than they are entitled to by M. Co. v. Dangberg (C. C.), 81 Fed. virtue of their appropriations, declare 73, 119; Anderson v. Bassman (C. C.), that under such circumstances they 140 Fed. 26. were not entitled to the quantity of ^^.ftTff &?ft ^ " water they were using, and give the 19 Davig ' v . Chamberlain, 51 Or. 304, excess to subsequent appropriators." 93 p ac 154. 482 Ch. 21. QUANTITY OF WATER. (3d ed.) 511 Davenport ditch he used it in mining during the .winter months and up to the 1st of June up to the irrigating season. 'That is the way we used it.' Hence there does not exist in the owners of either the Farmers' ditch or the Davenport ditch any right to divert water thereby after the 1st of June. An appropriation of water is limited in every case in quantity as well as for the period of time for which the appropriation is made. ' ' 20 The Land Office has ruled that the final and only conclusive proof of reclamation under the Reclamation Act is production. 21 In an Idaho case the facts were held to show beneficial use by a party for irrigation at some times and for mining at the remaining times. 22 In another Idaho case w defendants had, during the irriga- tion season, diverted and used the waters of Snake River since the year 1885. After the irrigation season, and about the 15th of Octo- ber, 1907, the defendants, having no use for the water until the next season, nevertheless shut down their headgate at the head of the slough, and also placed therein a dam of earth and rock so as to prevent the water from flowing down the channel through Watson slough, and diverted and deflected the whole body of the stream into the mam channel of Snake River, and thereby cut off from plaintiff the flow of water in Watson slough. This time when the water is not in use by the defendant was held not covered by its appropriation, and during such times it is as though there were no appropriation at all, and the waters are the same as if unappro- priated, and the diverter is a stranger, intermeddler or interloper with respect to the watercourse. As to plaintiff, he, subsequent to defendant's appropriation, took up, about 1891, riparian land through which the slough runs and he has for more than seventeen years last past been using the waters naturally flowing in the stream and watercourse for domestic purposes and for watering his livestock, and claims that as a riparian owner he is entitled to the continued use thereof and to have the water flow through his lands in its natural course when not used for irrigation or other purposes by prior appropriators in conformity with law. He was upheld in this claim. 20 Citing Simmons v. Winters, 21 21 37 Land Dec. 468. Or. 35, 28 Am. St. Rep. 727, 27 Pac. 7; McPhee v. Kelsey, 44 Or. 193, 74 22 Lockwood v. Freeman, 15 Idaho, Pac. 401, 75 Pac. 713; Barnes v. Sa- 395, 98 Pac. 295. , H.tthta v. Wa.son D. Co. 507, 514, 22 L. Ed. 414, 1 Morr. Min. (1909), 16 Idaho, 484, 133 Am. St. Rep. 583. Rep. 125, 101 Pac. 1059. 512 (3d ed.) Pt. III. THE LAW OF PRIOR APPEOPEIATION. 483 C. ANNUAL INCREASE OF USE. (3d edj 483. Future Needs. In considering the amount of water to which an appropriator is entitled, there is introduced a new feature to meet the requirements of irrigation. The history and principles so far stated show that the system of appropriation aims funda- mentally at definiteness and certainty. It allowed the prior appro- priator 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 things as they found them, and would know what they could take. Consequently, as regards the limitation to beneficial use, later appropriators had to look solely at the amount the prior appro- priator was actually applying to a beneficial purpose at the time the subsequent claimant arrived. For any enlargement of amount used thereafter the prior claimant had to take his chances with others at the time he sought to increase the amount. 24 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. As is said in one case, it is reasonable to suppose that reclamation of the entire area owned at the time of diversion is contemplated. 25 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 use in the face of these later claimants? It seems well settled that such is the rule. 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 movable limit, which may gradually increase as the irrigator's needs increase. The principle ha"s been repeatedly affirmed. 1 In California this principle was 24 Compare Windsor Res. Co. v. Idaho: Hall v. Blackman, 8 Idaho, Lake Supply Co., 44 Colo. 214, 98 Pac. 272, 68 Pae. 19; Conant v. Jones, 3 729. Idaho, 606, 32 Pac. 250; Brown v. 25 Seaweard. v. Pacific etc. Co., 49 Newell, 12 Idaho, 166, 85 Pac. 385. r i CoLal. P s1e Tew Mercer etc. ^^^jJ^^^'r^^ f~< 01 /-i i OCT *n 14 Mont. 484. 43 Am. St. Rep. 6o2. S' V Q8^ rn f n r ^ g ' 2 l t COl i 357 ' P t? 37 Pac. 5; Arnold r. Passavant, 19 Pac. 989. (Dictum but enlargement ' not upheld on facts.) Just as in California, there seems to be no actual Nevada: Barnes v. Sabron, 10 Nev. decision in Colorado to this effect. 217, 4 Morr. Min. Rep. 673; Rodgera 484 Ch. 21. QUANTITY OF WATEB. (3d ed.) 513 affirmed in Senior v. Anderson ; 2 though the enlargement was not upheld on the facts of the case. There seems no other California decision on the point, the court relying, on Oregon cases. 3 In a later case the California court said: "There are cases which hold that the diversion of a large quantity of water is a good appropria- tion of the whole ab initio, although it is not all used at first, if the design is gradually to extend the use,' and that design is carried out before an adverse appropriation of the surplus below the point where it is returned to the stream. But this is a point which has not been argued, and we merely allude to it in passing." 4 The essential point of the rule is not correctly stated in this passage, since the essence of the rule is that the design may be carried out in spite of an intervening appropriation elsewhere on the stream, as the quotations below show. The same doctrine has been applied to future enlargement of use for power purposes as well as irrigation. 5 (3d ed.) 484. Same. There are limitations upon this principle of figuring future needs in the amount appropriated though not at present used. These limitations are but applications of the rules heretofore stated for determination of the amount to which an appropriator is entitled, which apply to future use as much as to present use. First, the future needed amount must be originally claimed at the time of initiating the appropriation; being the limitation v. Pitt, 129 Fed. 932; Union Mining "present right." It was held that Co. v. Dangberg, 81 Fed. 73. water for future needs was not re- Oregon: Nevada D. Co. v. Bennett, served under "present right." South- 30 Or. 59, 60 Am. St. Eep. 777, 45 side etc. Co. v. Burson, 147 Cal. 401, Pac. 472; Glaze v. Frost, 44 Or. 29, 81 Pac. 1107. Compare Duckworth v. 74 Pac. 336; Seaweard v. Pacific etc. Watsonville Co., 158 Cal. 206, 110 Pac. Co., 49 Or. 157, 88 Pac. 963; Ison v. 927, holding an appropriation for town Sturgill (Or.), .109 Pac. 579 (dictum}. supply cannot be increased with Utah: Elliot v. Whitmore, 23 Utah, growth of the town, or for emergency 342, 90 Am. St. Kep. 7Cf, 65 Pac. 70; use, against other appropriators. See, Sowards v. Meagher (Utah), 108 Pac. also, Cox v. Clough, 70 Cal. 349, 11 1113. Pac. 732. Washington : Longmire v. Smith, 26 4 Hubbs and Miners' Ditch Co. T. Wash. 439, 67 Pac. 246, 58 L. R. A. Pioneer Water Co., 148 Cal. 407, 83 308. See, also, Avery v. Johnson Pac. 253. (Wash.), 109 Pac. 1028. 5 Trade Dollar etc. Co. v. Fraser 2 115 Cal. 496, 47 Pac. 454. (Idaho), 148 Fed. 587, 79 C. C. A. 37; 3 Compare the following: An ap- Union Min. Co. v. Dangberg, 81 Fed. propriator using twenty-five inches en- 73; McFarland v. Alaska etc. Co., 3 tered into a contract reserving his Alaska, 308. Water Rights 33 514 (3d ed.) Pt. in. THE LAW OF PRIOR APPROPRIATION. 484 already stated, to the original claim. The future needs must have been in mind and claimed at the time the appropriation was originally made, and not a mere afterthought. 6 That is, the en- larged use must be part of an original policy of expansion. Other- wise, it cannot prevail over interveners. 7 Water for future needs must have been part of the original appropriation, and if a decree settling rights is made, such right, if not included therein, cannot be claimed thereafter. 8 Use on after-acquired land must have been contemplated at the time of the original appropriation. 9 Second, the future enlargement cannot exceed the original capacity of the ditch. 10 Aiaeng the settled propositions of the law of appropriation, Judge Hawley 11 includes the following: "That if the water is used for the purpose 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 land, if the right is otherwise kept up." 12 Third, he can hold this future needed amount only for a reason- able 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, and he will be limited to the amount in use at the time of an intervening appropriation by another. Four years were held to be an unreasonable time in Senior v. Anderson, 13 on the facts of that case, saying: "We do not hold that the Hines appro- priation is limited by the quantity of water he could put to a useful purpose upon his land the first or second year, but to such quantity as he could put to a useful purpose upon his land, within a reason- able time by the use of reasonable diligence We think that 6 Becker v. Marble Creek etc. Co., Grande etc. Co., 37 Colo. 512, 86 Pac. 15 Utah, 225, 49 Pac. 892, 1119; 1042. Brown v. Baker, 39 Or. 66, 65 Pac. 9 Rutherford v. Lucerne etc. Co., 12 799, 66 Pac. 193; Toohey v. Campbell, Wyo. 299, 75 Pac. 445. 24 Mont. 13, 60 Pac. 396; Tanghen- 10 McDonald v. Lannen, 19 Mont. baugh v. Clark, 6 Colo. App. 235, 40 78, 47 Pac. 648. Pac. 153; Ison v. Sturgill (Or. 1910), n Union etc. Co. v. Dangberg, 81 109 Pac. 379; Porter v. Pettengill Fed. 73. The italics are ours. (Or.), 110 Pac. 393; Long on Irriga- 12 See cases cited supra, sec. 475, tion, sec. 59. capacity of ditch. See, also, Smith v. 7 Ibid.; Sieber v. Frink, 7 Colo. Duff (1909), 39 Mont. 182, 133 Am, 148, 2 Pac. 901. St. R*p. 507, 102 Pac. 984, 8 Farmers' Union etc. Co. v. Rio 13 Supra. $ 484 Ch. 21. QUANTITY OF WATER. (3d ed.) 515 the time elapsing after 1883 14 was ample to bring under cultivation all the land upon the Hines place intended for cultivation by the use of water." This is the requirement of beneficial use adapted to a situation demanding delay. 15 "What is a reasonable time is a question of fact in each case. "What is a reasonable time in which to apply water originally intended to be used for some beneficial purpose depends upon the magnitude of the undertaking and the natural obstacles to be encountered in executing the design.'.' 16 It has been held that the time during, which a colonization company was seeking to induce immigration is a reasonable time. 17 Five years have been held too long ; 18 ten years ; 19 thirteen years ; 20 eighteen years. 21 On the other hand, seven years have been held a reasonable time ; 22 thirteen years ; ^ fourteen years. 1 In Cali- fornia there is ground for saying that five years will be a limit. In Smith v. Hawkins, 2 it was laid down as a general proposition in California 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. The principle of forfeiture after a definite period of nonuse ap- pears also in the recent water codes. 3 For example, in the Idaho 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. 4 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. 5 Similar provisions fixing the time for future 14 To 1887. 1 Semble, Hall v. Blackman, 8 15 Cf. ante, sec. 383, diligence. Idaho, 272, 68 Pac. 19. 16 Seaweard v. Pacific etc. Co., 49 On what is a reasonable time see, Or. 157, 88 Pac. 693. also, Gates v. Settlers' Co., 19 Okl. 83, 17 Nevada Ditch Co. v. Bennett, 30 91 Pac. 856; Brown v. Newell, 12 Or. 59, 60 Am. St. Rep. 777, 45 Pac. Idaho, 166, 85 Pac. 385, citing Idaho 472. cases; Beers v. Sharpe, 44 Or. 386, 75 18 Seaweard v. Pacific etc. Co., 49 Pac. 719; Nevada etc. Co. v. Bennett, Or. 157, 88 Pac. 963. 30 Or. 59, 60 Am. St. Rep. 777, 45 19 Hindman v. Rizor, 21 Or. 112, Pac. 472; Conant v. Jones, 3 Idaho, 27 Pae. 13; Cole v. Logan, 24 Or. 304, 606, 32 Pae. 250. See supra, sec. 383, 33 Pac. 568; Hough v. Porter, 51 Or. diligence. 318, 95 Pac. 732, 98 Pac. 1083, 102 2 no Cal. 122, 42 Pac. 453, affirmed Pac. 728. in 120 Cal. 86, 52 Pac. 139, 19 Morr. 20 Low v. Rizor, 25 Or. 551, 37 Pac. Min. Rep. 243. The case of Smith v. 82. Hawkins is quoted and considered 21 New Mercer etc. Co. v. Arm- again later, infra, sec. 575. strong, 21 Colo. 357, 40 Pac. 989. 3 Infra, sec. 576. 22 Moss v. Rose, 27 Or. 595, 50 Am. 4 Stats. 1903, p. 223, sees. 1, 2, 6; St. Rep. 743, 41 Pac. 666. sec. 1, as amended 1905, p. 357. 23 Semble, Rodgera v. Pitt, 129 5 ibid., sec. 38. Fed, 932. 516 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 485 application of the water exist in the statutes passed since 1903, by some of the other States. The Idaho statute in 1907 6 provides that the forfeiture for the statutory period of nonuse (five years) shall not apply to the matter now under consideration. 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. 7 (3d ed.) 485. Same. Some general quotations may be added. In Arnold v. Passavant, 8 the appropriation was made for one hundred and eighty acres, but only forty-five were cultivated at the time a later claim was initiated. The prior claim for enough to irrigate one hundred and eighty acres was upheld, the evidence being "that he cultivated his land and used water to irrigate it, as he and his partner got money in their pockets." In Hall v. Blackman 9 the court says: "The history of irrigation 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 required them to cultivate all of their land in a very short time or lose the right to water that they had diverted 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 the right to the use of sufficient water to irrigate their lands." In Rodgers v. Pitt, 10 Judge Hawley says: "The conditions [draining sloughs and plowing sagebrush'] on the land had to be changed in order to apply the water claimed and appropriated to a useful and beneficial purpose. It was part of the enterprise which Marker had in view in making his appropriation. There is no principle of law that required him under such circumstances to delay making his appropriation until after he succeeded in drain- ing the land and putting it in a condition where it could be culti- vated. ' ' Kinney on Irrigation u 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 6 Stats. 1907, p. 507. 8 Idaho, 272, 68 Pac. 19. T See Seaweard v. Pacific etc. Co., 10 129 Fed. 932. 49 Or. 157, 88 Pac. 963. n Sec. 668a. And see Long on IT- 8 19 Mont. 275, 41 Pac. 400. rigation, sec. 48. 485 Ch. 21. QUANTITY OF WATER. (3d ed.) 517 right if he continues the development of his land and makes a full use of his water-right within a reasonable time." A recent Oregon case 12 says: "When an ordinarily prudent person makes a prior appropriation to irrigate arid land of which he is the owner, or in the lawful possession expecting to acquire title thereto, if such land will be benefited by irrigation, and the volume of the stream is sufficient therefor, it is reasonable to sup- pose that he has in mind both the extent of his land and the amount of the water at the time of his appropriation, and that he intends to reclaim the entire area thereof, either by the ditches constructed at the time or by a canal system then in contemplation. But pioneers on the public domain do not ordinarily possess great wealth, and hence cannot rapidly convert arid land into farms; and, such being the case, the law allows a reasonable time in which to complete the appropriation. If the increase in the area of arable land for the irrigation of which water has been diverted varies with and is measured by the lapse of time, the additional application of water annually to meet the augmented demand causes the appropriation to relate back to its inception, thereby cutting off all intervening rights of adverse claimants to the use of such water. 13 What is a reasonable time in which to apply water originally intended to be used for some beneficial purpose depends upon the magnitude of the undertaking and the natural obstacles to be encountered in executing the design." u The supreme court of Utah has recently held that, where done in good faith, an appropriation may be made wholly for future use. 15 12 Seaweard v. Pacific etc. Co., 49 ities may permit, until he has put to Or. 157, 88 Pac. 963. a beneficial use the entire amount of 13 Citing Simmons v. Winters, 21 water at first diverted by him and Or. 35, 28 Am. St. Rep. 727, 27 Pac. conducted to the point of intended 7; Hindman v. Rizor, 21 Or. 112, 27 use." Conant v. Jones, 3 Idaho, 606, Pac. 13 ; Cole v. Logan, 24 Or. 304, 33 32 Pac. 250. Pac. 568 ; Smyth v. Neal, 31 Or. 105, "Respondent has increased the area 49 Pac. 850. " of his irrigated lands in the last few 14 Citing Hindman v. Rizor, 21 Or. years, which we think he had a perfect 112, 27 Pac. 13; Nevada Ditch Co. v. right to do." Lockwood v. Freeman, Bennett, 30 Or. 59, 85, 60 Am. St. 15 Idaho, 395, 98 Pac. 295. Rep. 777, 45 Pac. 472. l 5 "May an application be made to "In the meantime, however, he is appropriate water for a beneficial pur- only entitled to such water from year pose so contemplated in the future! to year as he puts to a beneficial use. We confess that the question is open A person may add his application of to debate, and is not free of doubt, water thereto for irrigation as his We have, however, with some hesi- necessities may demand, as his abil- tancy, reached the conclusion that such 518 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 485a Eights pending completion at the time a decree is rendered set- tling rights must be left open by the decree. 16 (3d ed.) 485a. Same. Upon the proper classification of this principle which, adapting an expression of Judge Hawley's, we have called "appropriation for future needs," the cases are not always agreed. "We have considered it as a question of the amount of water which an appropriator may hold against others. This follows the original theory of appropriation as being complete on diversion and prima facie to the amount of the capacity of the ditch, the question of when actual use is or is not made being a question of waste and abandonment. In the foregoing quotations this point of view ap- pears in such expressions as holding "the water they had diverted and taken to the place of intended use." On the other hand, it is often considered as a question in the making of an appropria- tion, on the theory that the appropriation is not complete until ac- tual use is made. According to this view, the principles we have given are to be classified as follows: The contemplation of the en- largement is equivalent to the bona fide intention required in making an appropriation ; as to reasonable time, that is the element of diligence ; as to temporary use of interveners, that is the principle of relating back delayed to actual application instead of taking place on diversion. This latter view of the proper place of the principle appears above in an Oregon case which says: "The addi- tional application of water annually to meet the augmented de- mand causes the appropriation to relate back to its inception, thereby cutting off all intervening rights of adverse claimants to the use of the water. " To the writer it seems an illustration of the theory that the diversion completes the appropriation and the capacity of the ditch is prima facie the amount thereof, but that waste or failure of beneficial use rebuts the prima facie case on the principles of abandonment or forfeiture. It is a rule of holding the capacity of the ditch for future use. Prima facie, the capacity of the ditch, being the amount in actual possession, is, as already discussed, the amount appropriated; but an application may properly be made not made for the purpose of mere when it is made in good faith and speculation or monopoly." Sowards v. with an actual bona fide intention and Meagher (Utah), 108 Pac. 1113. a present design to appropriate the 16 Conley v. Dyer, 43 Colo. 22, 95 water for a beneficial use, though con- Pae. 304. templated in the future, and when it ia 486 Ch. 21. QUANTITY OF WATER. (3d ed.) 519 all not used within a reasonable time is abandoned. "Where due diligence is used to put the full capacity to use within a reasonable time, abandonment is negatived. The principle is sometimes called that of annual increase of irrigation; but the designation of "ap- propriation for future needs" which is suggested by an expression in an opinion above quoted from Judge Hawley, is more expres- sive of the situation, since the rule is one of holding the capacity of the ditch for the future enlarged cultivation. It is an example of the possessory side of the law. 16 * We have discussed this point at some length because it is one of unusual importance, and because it indicates a "possessory" sur- vival in fitting the law of appropriation to irrigation. It seems to the writer one of the unconscious instances in which irrigation has induced in the law of appropriation a tendency to adopt some of the principles of the common law of riparian rights. It undoubtedly lessens the insistence upon actual use, when the right may thus lie in abeyance for years without. use, not unlike the way it does at common law. The present policy is to favor those who actually undertake to settle in the hitherto unsettled regions and, toward them, to be liberal in enforcing the rule of beneficial use. Correspondingly, this liberality to the first settlers somewhat discourages later arrivals; but irrigation actually undertaken is considered worth more than later possibilities. D. DUTY AND MEASUREMENT OF WATER. (3d ed.) 486. Measurement of Water. The original standard of measurement was the miner's inch. The courts, however, do not insist, aside from statute, upon any special mode of designation. "That is certain which can be made certain; and if any particular kind of water measurement has been in use in that locality, such customary measurement would apply in a determination of the extent of plaintiff's ownership in the carrying capacity of the pipe-line." 17 16 See particularly sec. 139, supra. held, also shows that it could not have 17 Collins v. Gray, 3 Cal. App. 723, been according to the statutory defi- 86 Pac. 893. "Inch" means any meas- nition. Logan v. Guichard (Cal. urement shown by evidence, but is 1911), 114 Pac. 989. See, also, meaningless where the evidence shows Crane v. McMurtrie (N. J. 1911), 78 no method, of measurement, and, it is Atl. 170. 520 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 486 What constitutes a miner's inch varies in different localities. 18 It is said of the California inch: "The term 'miner's inch' is more or less indefinite, for the reason that California water companies do not all use the same head above the center of the aperture, and the inch varies from one and thirty-six hundredths to one and seventy-three hundredths cubic feet per minute each; but the most common measurement is through an aperture two inches high and whatever length is required, and through a plank one and one-half inches thick. The lower edge of the aperture should be two inches above the bottom of the measuring-box and the plank five inches high above the aperture, thus making a six-inch head above the center of the stream. Each square inch of this opening represents a miner's inch, which is equal to a flow of one and one-half cubic feet per minute." 19 Of the Colorado inch it is said: "In Colo- rado an 'inch' is the volume which will pass through an orifice one inch square under a pressure of five inches, measured from the top of an orifice, .and varies somewhat with the number of inches sought to be measured; thirty-eight and four-tenths inches is the accepted equivalent of a cubic foot per second, however. ' ' 20 It has been held that the word "inch" means such customary inch as prevails in a given locality. 21 Statutory definitions of "miner's inch" sometimes appear. 22 In Oregon it has been held that when the record is silent as to the quantity of water in- tended by the word "inch," it will be presumed to be measured under a six-inch pressure. 23 In Idaho the statute provides for a four-inch pressure. 24 18 Dougherty v. Haggin, 56 Cal. repealed." A similar act exists in 522, 15 Morr. Min. Rep. 211. Montana, Stats. 1899, p. 117. Note, 19 Kent's Mechanical Engineer's however, that the California Civil Pocketbook, p. 18. Code, section 1415, requires the meas- 20 Bulletin 118, U. S. Dept. Agric. urement to be under a four-inch pres- Exper. Sta., .p. 73. See 2 M. A. S., sure, while the above statutory meas- sec. 4643. urement required is under a six-inch 21 Collins v. Gray, 3 Cal. App. 723, pressure. It has been held in Cali- 86 Pac. 983. See Carron v. Wood, 10 fornia that the statutory - definition Mont. 500, 26 Pac. 388; Logan v. will not be applied where the evidence Guichard (Cal. 1911), 114 Pac. 989. shows that the parties did not intend 22 Cal. Stats. 1901, p. 660: "Sec- to be governed by it. Logan v. Gui- tion 1. The standard miner's inch of chard (Cal. 1911), 114 Pac. 989. water shall be equivalent or equal to 23 Gardner v. Wright, 49 Or. 609, one and one-half cubic feet of water 91 Pac. 286; Morgan v. Shaw, 47 Or. per minute measured through any 333, 83 Pac. 534; Bowman v. Bow- aperture or orifice. Section 2. All man, 35 Or. 279, 57 Pac. 546. acts or parts of acts inconsistent with 24 Laws 1889, p. 380, sec. 1. the provisions of this act are hereby 486 Ch. 21. QUANTITY OP WATER. (3ded.) 521 The designation by "miner's inches" is falling into disuse, and, instead, the "second-foot" is taking its place; being a flow of one cubic foot per second of time. This is now the statutory standard generally. 25 The second-foot being the unit of flow, the unit of volume is either one cubic foot, 1 or one acre-foot. 2 The ratio between the miner's inch and the second-foot, is not always given the same, owing to. the variation in the meaning of miner's inch. Thus, the second-foot is sometimes declared equal to fifty inches, 3 or to forty inches, 4 or to ,thirty-eight and four-tenths inches. 5 Some further discussion of the miner's inch is given in the note. 6 The term "miner's inch" cannot be definite without the specifi- cation of the head or pressure. 7 25 E. g., Colorado, M. A. S. 2467; Montana, Stats. 1907, p. 489, sec. 10; Nebraska, Comp. Stats. 1903, sec. 6428 ; Nevada, Comp. Laws, 1900, Stats. 1907, p. 30, sec. 6; New Mexico, Stats. 1905, p. 270, sec. 3; North Dakota, Stats. 1905, c. 34, sec. 47; Okla- homa, Stats. 1905, p. 274, c. 21, sec. 27; South Dakota, Stats. 1905, p. 201, sec. 44, Stats. 1907, p. 180, see. 45; Utah, Stats. 1905, c. 108, sec. 48.; Washington, Pierce's Codes, sec. 8942; Wyoming, Rev. Stats. 968. 1 E. g., Colorado, M. A. S. 2467. 2 E. g., Utah, Oklahoma, South Dakota, and New Mexico statutes just cited. 3 New Mexico, North Dakota and South Dakota statutes, supra; Ne- braska, Comp. Stats. 1903, sec. 6440; Cobbey's Ann. Stats., sec. 6786. The State Engineer of Idaho adopts the same ratio. The same is .the usual practice in California although the statutory definition is forty. 4 Montana Stats. 1907, p. 489, sec. 10. The same is the equivalent of the California statute of 1901, page 660, quoted above. The same was also ac- cepted in Gardner v. Wright, 49 Or. 609, 91 Pac. 286. The Arizona inch is the same. 5 Colorado as given in Bulletin 118, U. S. Dept. Agric. Exper. Sta., p. 73, and enacted (semble) in 2 M. A. S., sec. 4643. 6 Speaking of the miner's inch, it was recently held (Gardner v. Wright, 49 Or. 609, 91 Pac. 286) : "This desig- nation, however, is not sufficiently defi- nite to be a safe guide at all times in ascertaining when the rights of a per- son awarded a given number of inches under six-inch pressure, etc., are being invaded. (Citing this book, first edition, pages 147, 175; Newell's (Practical) Irrigation, p. 128; Trout- wine on Civil Engineering, p. 546; Merriman's Treatise on Hydraulics (1904), pp. 122, 123, 124.) It is evident that the only reliable method by which any certain number of inches of water, when awarded under this method of measurement, can always be determined, is on the basis of what is termed by engineers as 'second-feet,' or quantity of water flowing past a certain point in a given space of time. The ratio recognized by the authorities cited and rule quoted is that one inch of water under six-inch pressure equals one-fortieth of a 'second-foot' that is, forty miner's inches furnish a flow of water equal to one cubic foot (seven and one-half gallons) per second of time which ratio we find substantially accurate, and will be adopted here." See, also, Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728; Whited v. Cavin (Or. 1909), 105 Pac. 396. 7 Longmire v. Smith, 26 Wash. 439, 450, 67 Pac. 246, 58 L. R. A. 308; Ison v. Sturgill (Or.), 109 Pac. 579, specifying six-inch pressure. The term "head of water," as used with refer- ence to water for irrigation purposes, has been saiu to be the quantity enter- 522 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 487 One acre-foot equals 43,560 cubic feet, or 325,850 gallons. One second-foot of water running for twenty-f9ur hours would equal about one and ninety-eight hundredths acre- feet; therefore, one second-foot running eight months would equal about four hun- dred and seventy-five acre-feet. One second-foot running eight months would cover seventy acres nearly seven feet deep. The amount of water sufficient to cover the ground two 'and one-half feet deep is generally considered plenty if beneficially used; therefore, one second-foot should, it has been said, be sufficient to irrigate one hundred to two hundred acres. 8 A second-foot equals seven and forty-eight hundredths United States gallons per second. , In Colorado 9 the State Engineer shall furnish 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. Under a recent Oregon statute, a "horse-power" is defined as five hun- dred and fifty pounds of water per second of time for each foot of available fall. 10 In connection with pumping and city water supply the term "gallons per minute" is usually used. The "acre-foot" is the usual storage unit. A table of equivalents will be found in a publication of the United States Department of Agriculture. 11 Some foreign methods are mentioned in the following note. 12 (3d ed.) 487. Duty of Water. Legislation has, recently, in several States, specified the minimum of beneficial use for irrigation at be- ing the intake of any canal or ditch, to a fixed schedule. These divisions are Hough v. Porter, 51 Or. 318, 95 Pac. not made by fixed volumes but by 732, 98 Pac. 1083, 102 Pac. 728. The aliquot parts of the total discharge." term usually, however, indicates pres- Armard on Spanish Irrigation, pp. sure and not quantity. Head of water 24, 25, given in Hall's Irrigation De- ancl grade of ditch should be given, it velopment, Part I, p. 384. In Sar- is held in Logan v. Guichard (Gal. dinia, "The module of water is that 1911), 114 Pac. 989. quantity which, under simple pres- 8 Hough v. Porter, supra. sure, and with a frfce fall, passes' 3 M. A. S., 1905 ed., 2286c. through a quadrilateral rectangular 10 Or. Stats. 1909, c. 221, see. 3. opening, so placed as that two of its 11 Water Supply Paper, 250, page sides shall be vertical, with a breadth 11 (Office of Experiment Stations, of two decimeters, a height of two United States Department of Agrieul- decimeters, and opening in a thin plate ture). against which the water rests and is 12 In Spain, "This unit is called a maintained, with its surface perfectly 'thread of water/ and the volume of free, at a height of four decimeters the stream when all in use is divided above the lower edge of the opening." into one hundred and thirty-eight "Sardinian Code, sec. 643, given in 'threads,' each canal taking its pro- Hall's Irrigation Development, Part I, portionate part of the whole, according p. 245. 487 Ch. 21. QUANTITY OF WATER. (3ded.) 523 tween fifty and eighty acres per second-foot of water, and so fixed the amount of water that can be allotted to each appro- priator. In Idaho the statute specifies one second-foot for fifty' acres. 13 In Nebraska, New Mexico, Oklahoma, South Dakota and Wyoming, it is one second-foot for each seventy acres. 14 In North Dakota it is one second-foot for each eighty acres. 15 In Nevada the statute specifies three acre-feet per year for five months, adding one-half an acre-foot each succeeding month up to nine months. 16 . Measurement by volume, rather than by flow, recommended by many engineers. 17 In North Dakota a special statute governing flood waters from coulees specifies a maximum of two acre-feet per year for any irrigating season. 18 Under the United States Reclamation Service about one and one-half acre- feet per season is allowed. 19 In the absence of statute, the duty of water is sometimes figured in inches per acre; an inch per acre being considered liberal. 20 But in the absence of statute it is not a settled matter. 21 In Oregon it was held that when a duty of water is adopted as the basis of decree (e. g., one and one-half to three acre-feet per is Stats. 1903, p. 233, sec. 9, as amended 1905, p. 174. Unless the State Engineer otherwise specifies (which he will only in very unusual cases), and subject to local customs and rules. Gerber v. Nampa Irr. D., 16 Idaho, 1, 100 Pac. 80, says the duty of water is about one inch per acre. 14 Nebraska, see statutes, infra; N. M. Stats. 1905, p. 270, sec. 4; Okl. Stats. 1905, p. 274, c. 21, sec. 29; S. D*. Stats. 1905, p. 201, c. 132,' sec. 46; Stats. 1907, p. 373, sec. 47; Wyo. Rev. Stats., 872. is N. D. Stats. 1905, c. 34, sec. 49; Rev. Codes (1905), sec. 7604 et seq. is Stats. 1909, p. 31, c. 31. Three acre-feet per year was first enacted Stats. 1903, p. 18, sec. 2 ; then repealed in Stats. 1905, p. 66; then re-enacted in Stats. 1907, p. 30, sec. 5; then amended in 1909 as above. 17 Three acre-feet per year are equivalent to about one second-foot for one hundred and sixty acres, or about a miner's inch for each three acres. 18 N. D. Stats. 1909, p. 179. 19 Whited v. Gavin (Or), 105 Pac. 396. 20 Gardner v. Wright. 49 Or. 609, 91 Pae. 286; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728; Whited v. Cavin (Or.), 105 Pac. 396; Ison v. Sturgill (Or.), 109 Pac. 579; Porter v. Pettengill (Or.), 110 Pac. 393; Gerber v. Nampa Irr. Dist., 16 Idaho, 1, 100 Pac. 80; United States v. Conrad Inv. Co. (Or.), 156 Fed. 130. An inch per acre held suffi- cient to allow for loss by seepage and evaporation. Nevada D. Co. v. Can- yon etc. Co. (Or.), 114 Pac. 86. 21 In Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728, the quantity allowed, under the evidence, was from one-third to two- third inches per acre. In Whited v. Cavin (Or.), 105 Pac. 396, it was held that ten second-feet, or four hundred inches, was ample for the irrigation of plaintiff's land hav- ing an area of four hundred and forty acres, and that seventeen inches per acre is obviously never required for the irrigation of any land. In one case the aggregate amount of land owned by the respondents was 15,000 acres; amount of water claimed by them was 51,200 inches, making an average of about three and one-half inches of water to the acre. There was no uniformity among the respond- 524 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 487 year), it nevertheless is subject to the rule of actual use, and may be lessened by supplemental order on proof of lesser necessity. 22 In California, with the exception of a late statute regarding artesian wells, there is no statute or rule of law upon the matter, but the duty of water is there probably the highest in the \vorld. 23 According to measurements made in 1906, the average net duty of water for single irrigations of alfalfa in a certain district is approximately seven-tenths acre-foot, costing seventy cents per acre of land. 24 In the report of the Department of Agriculture for 1896, Mr. Newell, now head of the Reclamation Service, dis- cusses the duty of water, and shows that the amount of acres per second-foot now allowed in most statutes is very generous as compared with the practice in Southern California where the water serves many more acres per second-foot than these statutes specify, and such an amount in Southern California would be considered wasteful. 25 ents in this particular. The lowest claim made was one inch to the acre, the highest, seven and one-third inches to the acre, by one of the largest land- owners in the valley. Union M. Co. v. Dangberg, 81 Fed. 73. 22 Hough v. Porter, 51 Or. 318, 95 Pae. 732, 98 Pac. 1083, 102 Pac. 731. Mr. Justice King said: "In determin- ing the 'duty of water,' or quantity essential to the irrigation of any given tract of land, we must take into con- sideration the character, the climatic conditions, the location and altitude of the lands to be irrigated, the kind of crops, period of time irrigated, and necessary manner of irrigation, as well as many other contingencies not aris- ing here. The 'head' of water, or quantity entering the intake of any canal or ditch, must also be consid- ered. A large body of water, used at one time and upon the same tract, will reclaim a larger quantity of land pro- portionately than will a small supply; for example, one miner's inch might prove inadequate in many instances for the proper irrigation of more than a small fraction of an acre, while one hundred inches, or two and one-half second-feet, if under the control of and used by one person and at one time, might properly irrigate three hundred acres of the same kind of land. Applying these principles in the case at hand, where there are no small bodies or tracts involved, we think the water users, by the adoption and use of the more modern and economical methods now more generally applied and in use, will find that a constant flow of from one-third to two-thirds of an inch per acre will prove adequate for the proper irrigation of the lands, being, with ninety days' continuous flow, one and one-half to three 'acre- feet,' which is more than allowed by the government reclamation service in Klamath county." Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1Q83, at 1102, 102 Pac. 728, citing 6 Am. Eep. of Reclamation Serv., p. 195. 23 Regarding artesian wells Stats. 1907, p. 122, sec. 3, as amd. 1909, c. 427, provide that permitting over five per cent of the water received on the land to escape is waste, and that one-tenth of a miner's inch per acre each year is the proper duty of artesian water (equivalent, apparently, to an inch for ten acres, and to a second- foot for four hundred acres). 24 Bulletin 207, Office of Experi- ment Stations, United States Depart- ment of Agriculture. 25 Report of U. S. Dept. Agrie. for 1896. 488 Ch. 21. QUANTITY OF WATEE. (3d ed.) 525 The average for eleven ditches in Utah was fifty acres per second-foot. 1 Results collected by the Office of Experiment Sta- tions of the United States Department of Agriculture during tho past few years show that on several canals in Montana the average duty of water was nearly four feet in depth over the surface ; in Colorado, four feet ; in Idaho, six feet ; in New Mexico and Washington, nearly eight feet; and in Wyoming for 1903, nearly ten feet; the general average for eleven Western States being over five feet. 2 In determining the duty of water as applied to the conditions in any particular case, evidence should be from actual experi- ment and measurement, if possible. 3 Opinion evidence is of less value than experiment, as to which the head of water influences its duty, the less the head the greater the quantity needed to spread it over the land, and evidence should be as definite as possible. 4 (3d ed.) 488. Duty of Water as Affected by Loss in Transmission. In a publication of the United States Department of Agri- culture 5 it is shown that old canals lose about fifty per cent between the stream and the lands. New canals lose about sixty per cent between stream and land, ten per cent being lost in the laterals. Upon the land itself, about twenty-five per cent is lost when the water -is applied by wetting the entire surface; reduced to a loss of twelve and one-half per cent when applied in deep furrows. A general discussion is made of the duty of water under varying conditions of climate, soil, type of canal or lateral, etc., and it is concluded: "From the foregoing discussion of losses of water it is apparent that not more than fifty per cent of the water diverted from streams reaches the lands for which 1 Bulletin 124, Office of Exp. Sta., hundred acres per second-foot. Bulle- U. S. Dept. Agrie., p. 32. tin 215, Office of Experiment Stations, 2 Professor Samuel Fortier, in United States Department of Agri- "Water and Forest" for July-October, culture. 1906. Concerning the duty of water, 3 Farmers' etc. Co. v. Eiverside Irr. see Gardner v. Wright, 49 Or. 609, 91 Dist. (1909), 16 Idaho, 525, 102 Pac. Pac. 286; United States v. Conrad 481. Inv. Co. (Or.), 156 Fed. 130. 4 Whited v. Cavin (Or.), 105 Pac. The State Engineer of Wyoming re- 396. ports an average depth of two and 5 Eeview of Ten Years of Irriga- fifty-nine hundredths feet. Eeport of tion Investigations, Annual Eeport of> St. Engr. for 1907-1908. Office of Experiment Stations for the Upon the Hondo Eiver in New Mex- year ending June 30, 1908. leo the State Engineer reports two 526 (3d ed.) Pt. III. THE LAW OF PEIOR APPEOPBIATION. 488 it is intended, the balance being lost in transit. There are, fur- ther, large losses by evaporation from the soil and by percolation beyond the reach of plant roots. It is conservative, therefore, to state that not more than one-third of the water diverted from streams contributes to the growth of plants. It has been shown that a large part of the losses mentioned can be stopped. In many. sections the point has already been reached where a more economical use of water is the only source of supply for increas- ing the area irrigated, and this condition is constantly becom- ing more common." 6 In calculating the amount actually used, the amount lost in necessary fluming must be added, even though there would be no loss if the water were transported in some other way as, for example, by a pipe-line. 7 But use in poor and leaky flumes will be enjoined, 8 or any waste from faulty means of conveyance, that can be saved by careful appliances. 9 The fact that a pipe-line conveys water with much less loss by seepage and evaporation than a ditch does not necessarily show that there is waste within this limitation. 10 " Conveying it through a ditch, even, will al- ways cause some loss 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 ac- quired 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 manner as before, and cannot change the method of use so as to materially increase the waste." 11 It has been held that it is the general rule of large ditches that seepage usually exists from their headgate along down their line until the ditch gradually winds its way from the river upon the 6 "On the basis of studies made by 8 Barrows v. Fox (Gal.), 30 Pac. the Department it has been estimated 768. But see same case on rehearing that the water at present turned into just cited. the main canals in the arid region can 9 Town of Sterling v. Pawnee Co., be made to serve approximately double 42 Colo. 421, 94 Pac. 339, 15 L. E. A., the area now irrigated with it, since N. S., 238. not much more than half the water 10 Barrows v. Fox, 98 Cal. 63, 32 entering the canals reaches the land, Pae. 811. and there are large losses in applica- n Boeder v. Stein, 23 Nev. 92, 42 tion." Eeport of the Secretary of Pac. 867. Agriculture for 1909. In issuing permits, the State En- 7 Barrows v. Fox, 98 Cal. 63, 32 gineer of South Dakota makes a Pac. 811. But see Courthouse, etc. Co. reasonable allowance for probable loss v. Willard, 75 Neb. 408, 106 N. W. in transmission. Eept. of St. Engr. 463. for 1908. 489 Ch. 21. QUANTITY OF WATER. (3d ed.) 527 level lands. "All irrigation canals must of necessity seep more or less along this portion of their lines, and will so continue until prevented by other means than ordinary diligence in their con- struction, and we do not think the time has yet been rsached in this State when the owners of such enterprises can be held to such a high degree of diligence in their construction as to be com- pelled to prevent them from seeping at all," etc. 12 Where a right to the use of water is acquired through and by the construction of a ditch tapping any source of water supply, and the users thereafter elect to take the water thus diverted from other points on the stream, due allowance must be made for loss by evaporation, including such loss as may occur under different methods of use and distribution, which loss must, so far as practicable of ascertainment, be deducted from the quantity awarded under the original diversion and method of use. 13 (3d ed.) 489. 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 deter- mined by the general plan and purpose of the appropriator where the appropriation is by actual diversion without notice, as still permitted in California and the States that have not adopted water codes, and possibly also in them; 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 being allowed an irrigator for expansion (but in California prob- ably not more than five years, and under State water codes usually less 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 provided by statute what quantity of water shall be allotted for irrigation, being usually between fifty and eighty acres per second-foot of flow ; while in Oregon a 12 Middlekamp v. Bessemer etc. Co. 13 Hough'v. Porter, 51 Or. 318, 98 (1909), 46 Colo. 102, 103 Pae. 280, 23 Pac. 1083. L. B. A., N. S., 795. 528 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 489 similar result is judicially reached by presumption without stat- ute. There is no such rule in California or Colorado, but an inch per acre (or one second-foot for forty acres) seems to be generally regarded as more than sufficient, for all but exceptional cases. 490-495. (Blank numbers.), 496 Ch. 22. CHANGE 01! MODE OF ENJOYMENT. (3d ed.) 529 CHAPTER 22. LIMITATIONS ON CHANGE OF MODE OF ENJOYMENT. A. GENERAL PRINCIPLES. 496. The right is independent of the mode of enjoyment. 497. Same. 498. No injury to others allowed. 499. Right of change chiefly a matter upon public lands. 500. Freedom of change gradually passing away. B. CHANGE OF MEANS OF USE. 501. Change of ditches, etc. 502. Same. 503. Same. C. CHANGE OF POINT OF DIVERSION. 504. Change of diversion. 505. Same. 506. Statutory restrictions. 507. .Same. D. CHANGE OF PLACE OF USE. 508. Change of place of use. 509. Statutory restrictions. 510. Change on sale of water-right. E. CHANGE OF PURPOSE OF USE. 511. Change of purpose. 512. Conclusion. 513-521. (Blank numbers.) A. GENERAL PRINCIPLES. (3d ed.) 496. The Right is Independent of the Mode of Enjoyment. By appropriating a stream the law has always considered that a right of property was conferred, and being property, the owner may enjoy it as he will, so long as he does no injury to others, just as he may a farm or a horse or other property. The law, hence, has always regarded the right as independent of means or place or purpose of use or of point of diversion. The litigation upon this question has always been addressed to the contention that the right was limited to its initial mode of enjoyment, and that a change forfeits priority and can only be made by new Water Rights 34 530 (3d ed.) Pt. III. THE LAW OF PEIOB APPEOPKIATION. 497 appropriation. The . decisions, now passed into legislation, almost universally, and with but a few exceptions, decided against the contention, and have settled the rule that change of means, place, or purpose of use or of diversion does not forfeit priority. "A priority to the use of water is a property right which is the sub- ject of purchase and sale, and its chapter and method of use may be changed, provided such change does not injuriously affect the right of others. ' ' * The law to this effect took its shape very early. It was early decided that the place of use may be changed without loss of priority. It was absolutely necessary in the early California mining days, when the law of appropriation arose and when new ground was being continually opened up. In Maeris v. Bicknell 2 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 localities. The right to change the place of use was hence first established. It was next held in Kidd v. Laird 3 that the point of diversion or taking the water could likewise be changed. These two decisions were relied on in all jurisdic- tions, 4 and passed into statutes. 5 The right to change the pur- pose of use has always been assumed to follow from these two cases and those following them, rather than having ever been actually independently decided. (3d ed.) 497. Same. The right is hence independent of point of diver- sion and of manner, place or purpose of use. As to the point of diversion, the Wyoming court said : 6 ' ' We are not aware of any rule 1 Seven Lakes etc. Co. v. New Love- The right to change, so limited, in- land etc. Co., 40 Colo. 382, 93 Pac. 485, eludes the point of diversion, and 17 L. B. A., N. S., 329. place and character of use." Fuller 2 7 Cal. 261, 68 Am. Dec. 257, 1 v. Swan River P. M. Co., 12 Colo. 19, Morr. Min. Bep. 601. 19 Pac. 836, 16 Morr. Min. Bep. 252. .3 15 Cal. 161, 76 Am. Dec. 472, 4 5 For example, Cal. Civ. Code, sees. Morr. Min. Bep. 571. 1412, 1415; Pierce's Washington Code, 4 For example, "We think that the sec. 5139. In the Nevada Stats. 1907, rule announced in Kidd v. Laird, 15 p. 30, see. 26, Stats. 1909, p. 31, it is Cal. 162-180, 76 Am. Dec. 472, 4 Morr. provided : "Any person changing his Min. Bep. 571, 'that in the absence of place of diversion or manner of use, injurious consequences to others any as specified in this act, shall not there- change which the party chooses to by lose any priority of right upon the make is legal and proper' is the only stream he may have heretofore ac- true rule under which the rights of the quired." prior appropriator can be fully ex- See statutes of other States below, ercised, and his rights and the rights Willey v. Decker, 11 Wyo. 496, of all other persons fully protected. 100 Am. St. Bep. 939, 73 Pac. 210. 497 Ch. 22. CHANGE OF MODE OF ENJOYMENT. (3ded.)53l which restricts as to location the point of diversion in initiating an appropriation, except the probable requirement that it be so located as to render the proposed diversion feasible in view of the intended use, and possibly that, if the proposed point of diversion be situated upon lands of another, the appropriator shall secure a right of way for his ditch or works to be constructed on such, lands. 7 So far as the mere right of appropriation is concerned, no obligation is imposed upon a party to divert the water at the nearest possible point to his land or within any particular dis- trict." As to the place of use, the Colorado court said: 8 "In the absence of legislation to the contrary, we think that the right to water acquired by priority of appropriation thereof is not in any way dependent upon the locus of its application to the bene- ficial use designed. And the disastrous consequences of an adoption of the rule contended for forbid our giving such a con- 1 struction to the statutes as will concede the same, if they will properly bear a more reasonable and equitable one." As to pur- pose of use, and as a concise statement of the view of the law upon the general independence of the right upon its mode of enjoyment, the following case is one of the earliest and most ex- plicit, and an authority usually relied on in later cases: "Suppose a party taps a stream of water for the purpose of surface mining in a given locality, and afterward finds that the ground 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 surface, he finds quartz, may he not erect a mill and convert 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 grist- mill will pay may he not convert the former into the latter with- out surrendering his priority to someone who may have subse- quently 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 oases like the present, a party acquires a right to a given quantity of water by appropria- tion and use, and he loses that right by nonuse or abandonment. Appropriation, use; and nonuse are the tests of his right j and 7 Cf. sec. 221 et seq., supra. 8 Coffin T. Left Hand Ditch Co., 6 Colo. 443. 532 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 498 place of use and character of use are not. "When 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 privileges." 9 (3d ed.) 498. No Injury to Others Allowed. The law, being thus addressed to the preservation of the prior right, at the same time prohibits any invasion of the rights of others existing at the time of the change. "Sic utere tuo ut alienum non laedas" is an old maxim of the law. That no one must be injured by the change is as well settled as the right to make the change. Consequently, a change in place of diversion, place of use, or pur- pose of use, which necessitates, for example, the diversion of an ad- ditional quantity of water, is not permitted as against existing claimants on the stream. 10 An appropriator, when the stream be- comes clogged up with debris, cannot raise his dam (which is equiva- lent to moving his point of appropriation up stream) if the water thereby is caused to flood mining claims above. 11 Where a person had appropriated water for placer mining, and the water had been Davis v. Gale, 32 Cal. 34, 91 Am. Dec. 554, 4 Morr. Min. Rep. 604. "The right to water acquired by prior appropriation is not dependent upon the place where the water is used. A party, having obtained the prior right to the use of a given quantity of water, is not restricted in such right to the use or place to which it was first applied. It is well settled that a person entitled to a given quantity of the water of a stream may take the same at any point on the stream, and may change the point of diversion at pleasure, and may also change the character of its use, if the rights of others be not affected thereby.'.' Union etc. Min. Co. v. Dangberg, 81 Fed. 73, "A person entitled to the use of water may change the point of its di- version, and may use it for other pur- poses than that for which it was originally appropriated, provided al- ways, however, other parties are not injured thereby. Rev. Codes, sec. 4842. Even in the absence of this statutory declaration the rule would be the same." Head v. Hale, 38 Mont. 302, 100 Pac. 222. 10 Ortman v. Dixon, 13 Cal. 33.; Mc- Donald v. Bear River Co., 13 Cal. 220, 1 Morr. Min. Rep. 626; McKinney v. Smith, 21 Cal. 374, 1 Morr. Min. Rep. 650; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554, 4 Morr. Min. Rep. 604; Ne- vada etc. Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685, 4 Morr. Min. Rep. 253; Higgins v. Barker, 42 Cal. 233, 7 Morr. Min. Rep. 525; Santa Paula etc. Works v. Peralta, 113 Cal. 38, 45 Pac. 168; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; Diez v. Hartbauer, 46 Colo. 599, 105 Pac. 868 ; Vogel v. Minnesota etc. Co., 47 Colo. 534, 107 Pac. 1108; Windsor Co. v. Hott'man Co. (Colo.), 109 Pc. 423; Whited v. Gavin (Or.), 105 Pac. 396; Pomeroy on Riparian Rights, sec. 79; Perry v. Calkins (Cal.), 113 Pac. 136. , 31 Nevada etc. Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685, 4 Morr. Min. Rep. 253. 498 Ch. 22. CHANGE OF MODE OF ENJOYMENT. (3ded.) 533 used by lower proprietors for farming purposes, the first appro- priator's successors could not change the use so as to deprive the agricultural appropriators of the water. 12 An appropriation of water is limited, in quantity as well as in time, to the extent of the appropriation, and, where water was taken from a ditch for mining only through the winter months up to June 1st, the right of appropriation was limited to that period, and cannot be changed to the injury of existing users. 13 A system of exchanges of water between reservoir owners could not be sustained, where its effect would be to convert junior- into senior rights. 14 A change of point of diversion upstream which, without lessening surface flow, lessens seepage (underflow) to injury of inter- mediate users, cannot be made. 15 Some other authorities are quoted in the note. 1 No change will be permitted to result in any greater draft upon the river than before the change, and the use after the change is in all ways measured and fixed (where it conflicts with exist- 12 Head v. Hale, 38 Mont. 302, 100 Pac. 222. 13 Davis v. Chamberlain, 51 Or. 304, 98 Pac. 154. 14 Windsor Beservoir & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 98 Pac. 729. 15 Bates v. Hall, 44 Colo. 360, 98 Pac. 3. Subsequent appropriator pro- tected against change by prior. Smith v. Duff (1909), 39 Mont. 382, 133 Am. St. Eep. 587, 102 Pac. 984. i The Oregon court lays down the law in several recent cases. "Altnow's position is that he is entitled to use the entire amount of water appropri- ated by him, if he needs that amount, 'anywhere, for any purpose, without reference to anyone else, and irrespec- tive of that use upon others.' In other words, his claim seems to be that by his appropriation he acquired a prior right to the amount of water ap- propriated by him, and is entitled to use it at any time or place, provided he needs it and puts it to a beneficial use. But this is not the law as we understand it, if the contemplated change in the use will injuriously af- fect rights which have been lawfully acquired subsequent to his appropria- tion." Williams v. Altnow, 51 Or. 275, 95 Pac. 200, 97 Pac. 539. And in an- other case: "The parties hereto are each limited, in the application of the water adjudged to them, to the specific tracts upon which it has heretofore been applied, except in such instances as where it may be practicable to change the place of use without sub- stantial injury to others whose rights are here determined; that is to say, if by changing the place of use, when the water is needed by others, the quantity returning to the stream after, changing the place of use as com- pared to its previous application is substantially diminished, or if, by rea- son of such change, the 'run off' re- verts to the stream or channel below the point diverted by another, thereby reducing the supply at such point, it must necessarily operate to the injury of the rights of such other party, and the change must not be permitted." Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728, citing Wiel on Water Rights, 2d ed., sec. 47} Williams v. Altnow, 51 Or. 275, 95 Pac. 200, 97 Pac. 539. "While well settled that a change of use and place of use of water by an appro- priator may in some instances be per- mitted, such risrht is always limited to changes that do not impair the rights of others interested in the water of the stream." Hough v. Porter, supra. 534 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 498 ing owners) by the same limitations which the law would impose upon its use before the change. 2 The mere fact of use of more land does not show the inhibited injury to others, however, since consistent with a more efficient use of the same amount of water/ 5 The consent of the party injured will remove the objection. 4 The burden of showing that the change injures others is upon those opposing the change. 5 The person injured must be a party to the suit to make the point material. An injury to strangers to the suit, such as other water users at points intermediate on the stream between the old and new places of diversion or use, cannot be considered. 6 The limitation against injury to others has now universally passed. into statutes in all States; for example, in sections 1412, 1415 of the California Civil Code, where changes are authorized "if others are not injured by such change." The limitation is taken from the original cases of Maeris v. Bicknell and Kidd v. Laird, above referred to. In applying the limitation thus generally stated, that no rights existing at the time the change is made must be infringed, the rights contemplated by the rule are those of other owners of the natural resource, appropriators on the same natural stream. Does it apply to the claims (which are bare claims and cannot ripen into a right) 2 Seven Lakes etc. Co. v. New Love- Platte Valley Irr. Co. v. Central Trust land etc. Co., 40 Colo. 382, 93 Pac. 485, Co., 32 Colo. 102, 75 Pac. 391 ; Ft. 17 L. R. A., N. S., 329. In a Colorado Lyon Canal Co. v. Chew, 33 Colo. 392, 'case (Baer etc. Co. v. Wilson, 38 Colo. 81 Pac. 37; Cache La Poudre I. Co. v. 101, 88 Pac. 265) : "If appellant was L. & W. R. Co., 25 Colo. 144, 71 Am. the only appropriator, it would have St. Rep. 123, 53 Pac. 318. And say- the right to change the point of di- ing: "The mere fact that it is the in- version or place of use of the water as tention of appellee to apply the water, frequently as desired, because there diverted from its original headgate would be none having rights which into the new headgate and new ditch, might be affected; but, when a subse- upon a larger acreage, does not even quent appropriator makes his diversion, presumptively' establish that more he acts under the belief that the water water, measured in time or quantity, appropriated by his senior will con- will be used than was diverted through tinue to be used as it was at the time the original headgate, nor will it pre- f the making of the. appropriation of sumptively establish injury to the vest- the junior-. So a subsequent appro- ed rights of others." nriator has a vested right as against 4 Crescent etc. Co. v. Montgomery, liis senior to insist upon the continu- 143 Cal. 248, 76 Pac. 1032, 65 L. R. A. ance of the conditions that existed at 940. Consent to change point of (li- the time he made his appropriation." version. Miller v. Douglas, 7'Ariz. 41, (Citing Handy Ditch Co. v. Louden 60 Pac. 722; Bates v. Hall, 44 Colo. Canal Co., 27 Colo. 515, 62 Pac. 847.) 360, 98 Pac. 3; Saunders v. Robison, See, also, Windsor Co. v. Hoffman Co. 14 Idaho, 770, 95 Pae. 1057. (Colo.), 109 Pac. 423. 5 Jacob v. Lorenz, 98 Cal. 332, 33 3 Fulton etc. Co. v. Meadow etc. Co., Pac. 119. 35 Colo. 588, 86 Pac. 748. Citing 6 Infra, sec. 626 et seq. 499 Ch. 22. CHANGE OF MODE OF ENJOYMENT. (3d ed.) 535 of those using the waste discharge from ditches or other artificial watercourses, at a distance from streams, without owning rights in the natural resource itself, from which the supply comes ? This is a matter of much difficulty in the philosophy of the law of watercourses the distinction between the natural resource and artificial flows of water and reference in regard thereto is made to a previous chapter. 7 (3d ed.) 499. Right of Change Chiefly a Matter upon Public Lands. These rules, having arisen with the doctrine of appropriation itself, must be understood in the light of the origin of that doc- trine, as having arisen upon the public domain. When the region is a new one, and the lands are largely public, and there are few appropriators of water, there is practically no one to be injured. The government is alone concerned, and under the act of 1866 acquiesces in the utmost freedom to the appropriator so far as the government is concerned (the doctrine of "free development"); 1 and the only question being as to continuance of the right, the right continues and its priority is not lost by the change. But as the lands become settled and appropriations also increase, the government is no longer the only one concerned. Private rights of others are now also concerned. Hence, while in the early days the chief consideration was the freedom of change without loss of priority, in latter days tke prohibition of injury is becoming the more important ; as settlement advances, will become the most important, and in time practically prohibit change altogether. The prohibition of injury (so far, at least, as concerns ditches, point of diversion and means of use) practically limits changes to acts done on land that is public land at the time of the change. It is an instance of the philosophy of the doctrine of appropria- tion as it arose (and is still applied) in California, wholly con- fined to the public land. Under the Colorado doctrine, which departed from this rationale, the limitation against injury to private landowners was at first also departed from. 1 * It was afterward restored (in all matters except only as to riparian right to the water itself, which Colorado does not recognize). 7 Supra, sec. 51 et seq., especially 1 Supra, sec. 88 et seq. eec. 61. U Supra, c. 10. 536 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 500 Changes- of ditches, point of diversion or means of use, any change which injures existing landowners or existing appro- priators, is not to-day allowed anywhere in the West. No change whatever can be made on land passed into private hands at the time of or subsequent to the appropriation, so far as such acts change the character of the servitude, and this practically pro- hibits any change of ditches or other works on such land at all. 2 Likewise, no change which (under the California doctrine) increases the interference with riparian water-rights of subse- quent patentees ; 3 nor, under any doctrine, which interferes with any existing appropriator, subsequent or prior in time of use. They have acquired vested rights in the stream or neighboring land which receive full protection against later acts of the prior appropriator. The landowner need show no damage from the change; it is enough to constitute an injury, or infringement of right, that the character of the servitude will be changed. Injunc- tion will be granted without a showing of damage, because it is a violation of right of ownership of the land. 4 "Much reliance appears to be placed upon the fact that it was not shown that there was any appreciable value to the land appropriated for the ditch [newly substituted for a flume]. This is entirely immaterial. It was plaintiff's land, however poor it might be, and the fact that it apparently has no great present value will not justify one who has no legal right thereto in appropriating the same. .... There can be nothing in the contention that, because defendants acquired their right of way over public unoccupied lands of the United States, they have the right, as against one ^acquiring the land from the government subject to their easement, to change the location thereof upon his land. He took his land subject only to.the right of way as thus located." 5 (3d ed.) 500. Freedom of Change Gradually Passing Away. The prohibition of injury is rapidly overshadowing the right of 2 Supra, sec. 221 et seq., appropria- 4 The doctrine of injuria sine damno. tion on private land; infra, sec. 501 See infra, sec. 642. et seq., changes of ditches. 5 Vestal v. Young, 147 Cal. 721, 82 3 Supra, sec. 257. As against set- Pac. 383 ; citing McGuire v. Brown, tiers prior in settlement to the appro- 106 Cal. 660, 39 Pac. 1060, 30 L. R. A., priation it cannot exist at all in Call- N. S., 384. fornia. Ibid. 500 Ch. 22. CHANGE OF MODE OF ENJOYMENT. (3d ed.) 537 change, as the lands pass into private hands, and the United States withdraws lands that remain public. The right of change was chiefly an instance of the freedom of the public domain exer- cised in pioneer days ; and to-day, under the policy of conservation, changes even on public land are prohibited except by special permit, just as the acquisition of new rights of way. 6 A further force is the modification which the law of appropria- tion as a whole is undergoing within itself. 7 As this book has endeavored to keep steadily before the reader, the law of appro- priation, having arisen as a possessory right upon the public domain (converted into a freehold by the act of 1866), took on the features of a system based upon the idea of possession of the stream, more than of any specific use made. Actual diversion (taking possession) created the right; capacity of ditch (the amount in possession) measured the right; voluntary abandon- ment (intentional relinquishment of possession) alone caused a loss of right. Use was represented by the requisite of bona fide intention, and nonuse was represented by being merely evidence of an intention to abandon possession. Coming to the matter of this chapter, the possession could be carried'and changed from place to place, or from purpose to purpose, or the point of diversion shifted up or down stream, without losing priority if no one was injured. The rule permitting changes is but one instance of the possessory origin of the law of appropriation, and is being af- fected by the general transition in the law of appropriation from a possessory to a specific use system. * In this change, actual diversion has been much displaced by actual use as the crea- tion of the right; capacity of ditch has almost wholly disappeared as a measure of the right ; intentional abandonment is being steadily displaced by nonuse as per se causing loss of right ; and recent legislation is being directed against changes, and making the right inhere inseparably in the initial mode of use, 8 or else permitting change but only after a hearing in court or with consent of the State Engineer, which is to be given sparingly, as below considered. 6 Sierra Buttes Co. (Nov. 19, 1909), 8 In 1909 it was enacted in Wyo- 38 Land 'Dec. . See supra, sec. ming: "Water-rights cannot be de- .,, n , tached from the lands, place or pur- pose for which they are acquired, with- 7 See cross-references supra, sec. out i oss O f priority." Wyo. Laws 139. 1909, c. 68, sec. 1. 538 (3ded.) Pt. III. THE LAW OF PEIOE APPEOPEIATION. 501,502 B. CHANGE OF MEANS OF USE. (3d ed.) 501. Change of Ditches, etc. It has been said that the ap- propriator may use the water in any manner necessary to carry out the use for which it was appropriated. 9 In all branches of the law of waters it is immaterial whether the use is in steam boilers, by hydraulic rams-, in flumes or pipes, or appliances of whatever kind. 10 The means of use may be changed so long as no one is injured in making the change. 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. Where no injury to others, the change may be made without loss of priority. A change in a dam is permissible of no injury to others, 11 and a new ditch may be substituted for an old one if exactly similar and in the same position and no damage results. 12 A change may be made from a stream diversion to well pumping if without injury to others, 13 or from a ditch to a natural depression. 14 The ditch owner has a right generally to keep his works in repair. 1 15 (3d'ed.) 502. Same. The point being an illustration of the principle that the law of appropriation was framed for the public lands (where, hitherto, the United States permitted absolute freedom under the act of 1866), 16 the appropriator, in making his change, must in no way impinge upon lands or rights already in private ownership. 9 Stone v. Bumpus, 46 Cal. 218, 4 Kiverside Co., 155 Cal. 509, 101 Pac. Morr. Min. Eep. 278; Abbott v. Pond, 790, 23 L. E. A., N. S., 331; Perry v. 142 Cal. 393, 76 Pac. 60; Thomas v. Calkins (Cal.), 113 Pac. 136. Guiraud, 6 Colo. 533. 14 Parties owning the right to the >o Charnock v. Higuerra, 111 Cal. use of water may change the method 473, 52 Am. St. Eep. 195, 44 Pac. 171, of conveying it to the point of use, if 32 L. E. A. 190; Coleman v. Le Franc, such change does not materially preju- 137 Cal. 214, 69 Pac. 1011; Miller etc. dice others' rights; and in doing so v. Eickey, 127 Fed. 573; Thomas y. any dry ravine, gulch, or hollow, as Guiraud, 6 Colo. 530 ; Pomeroy on Ei- well as the natural channel UQ pae ^ g> ^'^ 95 Pac. 200, 97 Pac. 539. See, also, however, certain conditions as to Whited v. Cavin (Or.), 105 Pac. 396; notice before use improper. Sanders v. Robison, 14 Idaho, 770, 95 12 Boulder etc. Co. v. Hoover Pae. 1057. (Colo.), 110 Pae. 75. 509 Ch. 22. CHANGE OF MODE OF ENJOYMENT. (3d ed.) 553 and final decision of the State Engineer, subject to review in court. Such statutes exist in numerous States, 13 and the certifi- cates and licenses issued by the State Engineers frequently declare the right to be inseparable from the land named therein. So far as these statutes have come before the courts, however, the early California cases have been generally cited, and the statutes have not been given great force. In a Wyoming case it was held that the statute requiring appropriators to file a descrip- tion of the land irrigated, which description is incorporated in the final certificate, does not limit the right -to use the water to that land inseparably; on the contrary, the water-right may nevertheless be sold for use on different land ; 14 saying that many of the objections urged against this rule of change of place of use are fanciful. In Idaho, likewise, the court refused to give full effect to statutes seeking this same end. 15 In a Colorado ease 16 it is said that the disastrous consequences of the rule making the right dependent on the place of use for- bids giving such a construction to statutes as will concede the same, if another construction is possible. In a California case 17 it is said that the rule would lead to endless complications, and materially impair the value of water rights and privileges. Concerning the Nevada statute it is said: ia "Parties entitled to water are required to make application to the State Engineer before any transfer may be made, but in practice farmers are allowed to use the water to which they 'are entitled on lands other than those in connection with which the rights were acquired, if others are not injured by the change. That is, if a farmer prefers to use his water on new land and let the old 13 Idaho. Stats. 1903, p. 223, sees. Utah. Stats. 1905, c. 108, sec. 53; 5, 8; 1907, p. 507. Stats. 1909, c. 62, p. 84; Comp. Laws Montana. See Civ. Code, sec. 1900. 1907, sees. 1228x8 and 1288x24. Nebraska. Comp. Stats. 1903, sec. Wyoming. Stats. 1909, c. 68, sec. 1. 6436. This list is not complete. Nevada. Stats. 1905, p. 66 ; 1907, ** Johnston v. Little Horse etc. Co., p. 30, sec. 26. 13 Wyo. 208, 110 Am. St. Eep. 986, New Mexico. Stats. 1907, p. 71, 79 Pac. 22, 70 L. E. A. 341. sees. 44, 45. 15 Hard v. Boise City etc. Co., 9 North Dakota. Stats. 1905, p. 274, Idaho, 589, 76 Pac. 331, 65 L. E. A. sees. 1, 21, 23, 30, 50. 407; Boise City etc. Co. v. Stewart, Oklahoma. Stats. 1905, p. 274, 10 Idaho, 38, 77 Pac. 25, 321. sees. 21, 30. 16 Coffin v. Left Hand Ditch Co., 6 Oregon. Stats. 1909, c. 216, sec. Colo. 443. 65. 1T Davis v. Gale, 32 Cal. 32, 91 Am. South Dakota. Stats. 1905, p. 201, Dec. 554, 4 Morr. Min. Eep. 604. sees. 31, 47; Stats. 1907, c. 180, sec. ]8 Bulletin 168, 17. S. Dept. of 48. Agric., Office of Exper. Sta. 552 (3d ed.) Pt. in. THE LAW OF PRICE APPROPRIATION. 510 land lie fallow, he is allowed to do so. This is done upon the theory that the water would be used on the old land if the farmer was not allowed to use it on the new land, and it makes no difference to the holders of the other rights what land the water is used on." (Being the ground on which the courts originally upheld changes.) In Arizona and Nebraska, however, statutes limiting the power to change place of use have been given effect. 19 But in Arizona, while the appropriation must be for some definite land, it need not remain the same tract of land. 20 In Oregon recent cases tend to restrict the right to the place of use inseparably. 21 (3d ed.) 510. Change on Sale of Water-right. The recent statutory attempts to restrict the place and purpose of use are due to objections raised to changes resulting from sales of water-right, urging that allowing purchasers to use the water for new land or new purposes or different kinds of industries, even if without injury to others, leads to confusion that is inimical to the plan of the water codes, which seek to establish an official list, or register, or "Domesday Book," as it is sometimes said, of water-rights. Frequent changes resulting from sales are not in the line thus contemplated. 22 In the absence of express statutes contra, however, the courts hold that a change of place of diver- sion or use or purpose of use following a sale is as permissible as a change made on any other occasion. The statutes are nar- rowly construed so as still to hold that the water-right may be sold separate from the land. 23 19 Slosser v. Salt River Co., 7 Ariz. still unprovided for. These are trans- 376, 65 Pae. 332; Gould v. Maricopa fers of lands which carry with them etc. Co., 8 Ariz. 429, 76 Pac. 598; the rights of water. There is no pro- Farmers' Irr. Dist. v. Frank, 72 Neb. vision for making a record of such 136, 100 N. W. 286. In Clague v. transfers in the State Engineer's of- Tri-State Co. (1909), 84 Neb. 499, fice, and consequently the records do 133 Am. St. Rep. 637, 121 N. W. 570, not show correctly the ownership of sale for use on different land was rights. It is frequently desirable to upheld, however, as to sales prior to send notices to water-right holders, the statute. and often these notices are not re- 20 Biggs v. Utah etc. Co., 7 Ariz. ceived, because the original owner has 331, 64 Pac. 494. transferred his land and water-right 21 Whited v. Cavin (Or.), 105 Pae. and left the State." Bulletin 168, U. 396; Ison v. Sturgill (Or.), 109 Pac. S. Dept. Agric. Exper. Sta. The 579. same may also be remarked of rights 22 The difficulty nevertheless remains acquired by adverse use. even when water is inseparable from 23 Frank v. Hicks, 4 Wyo. 502, 35 land. "Another class of transfers is Pac. 475, 1025; McPhail v. Forney, 4 510 Ch. 22. CHANGE OF MODE OF ENJOYMENT. (3d ed.) 553 The water-right may be reserved on a sale of the land. 24 Rental rights are" assignable free of the land in Idaho in analogy to similar sales of original appropriations. 25 On a sale, the pur- chaser may use the water for a new purpose, as from irrigation to city water supply, 1 or from irrigation to storage. 2 That the water-right may be sold separate from land, for use on other land, and for other purposes, is generally held (if the change does others no injury). 3 While the place of use may thus be changed on a sale, yet if the change is asserted as a reservation on sale of the land, the intent to reserve the water-right on a sale of the land must be affirmatively shown, as elsewhere discussed. Though not insep- arable from the land, the water-right may be, and usually is, appurtenant thereto. 4 So far as statutes attempt to change this rule, reference is further made to previous sections. 5 Such statutes are an uncon- scious return to common-law principles; for at common law the Wyo. 556, 35 Pac. 773; Johnston v. Little Horse etc. Co., 13 Wyo. 208, 110 Am. St. Rep. 986, 79 Pac. 22, 70 L. R. A. 341; Crippen v. Comstock, 17 Colo. App. 89, 66 Pac. 1074; Smith v. Denniff, 23 Mont. 65, 57. Pac. 557, 50 L. E. A. 737; Cache La Poudre etc. Co. v. Larimer etc. Co., 25 Colo. 144, 71 Am. St. Rep. 123, 53 Pae. 318; Boise etc. Co. v. Stewart, 10 Idaho, 38, 77 Pac. 25, 32; Bessemer etc. Co. v. Woolley, 32 Colo. 437, 105 Am. St. Eep. 91, 76 Pac. 1054; Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Eep. 245, 26 Pac. 313; Clague v. Tri-State Co. (1909), 84 Neb. 499, 133 Am. St. Eep. 687, 121 N. W. 570 (up- holding sales prior to the statute), and other eases cited below, sec. 550 et seq., in discussing the question of "Appurtenance." 24 Dodge v. Marden, 7 Or. 457, 1 Morr. Min. Eep. 63. 25 Hard v. Boise etc. Co., 9 Idaho, 589, 76 Pae. 331, 65 L. E. A. 407, Quaere, whether this follows in Cali- fornia as a result of Stanislaus W. Co. v. Bachman, 152 Cal. 716, 93 Pac. 858, 15 L. R. A., N. S., 359. See infra, sec. 1324 et seq. i Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Eep. 245, 26 Pac. 313. 2 Seven Lakes etc. Co. v. New Loveland etc. Co., 40 Colo. 382, 93 Pac. 485, 17 L. E. A., N. S., 329. 3 Cave v. Crafts, 53 Cal. 135; Coonradt v. Hill, 79 Cal. 587, 21 Pac. 1099; Crocker v. Benton, 93 Cal. 365, 28 Pac. 953 ; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 3.39; Smith v. Denniff, 23 Mont. 65, 57 Pac. 557, 24 Mont. 20, 81 Am. St. Eep. 408, 60 Pac. 398, 50 L. E. A. 741; Simmons r. Winters, 21 Or. 35, 28 Am. St. Eep. 727, 27 Pac. 7; Coventon v. Seufert, 23 Or. 548, 32 Pac. 508; Turner v. Cole, 31 Or. 154, 49 Pac. 971; Toyaho Co. v. Hutchins, 21 Tex. Civ. App. 274, 52 S. W. 101; Snyder v. Murdock, 20 Utah, 419, 59 Pac. 91; Fisher v. Bountiful City, 21 Utah, 29, 59 Pac. 520; Frank v. Hicks, 4 Wyo. 502, 35 Pac. 475, 1025; McPhail v. Forney, 4 Wyo. 556, 35 Pac. 773; Mt. Carmel Co. v. Webster, 140 Cal. 183. See Windsor Co. v. Hoffman (Colo.), 109 Pac. 423. 4 See sec. 550 et seq., appurtenance. 5 Sees. 282, 509, 510. 554= (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 511 use of water is inseparably attached to riparian lands, and can- not be severed therefrom by sale or in any other way. 6 E. CHANGE OP PURPOSE OF USE. (3d e Junkens v. Bergm, 67 Cal. 267, 7 Pac. Min ^ ^ m ^ ^ 5? Am Rep. 445, 6 Atl. 453. The case has 14 Phoenix etc. Co. v. Fletcher, 23 b een usua lly criticised. See infra, Cal. 481, 15 Morr. Min. Rep. 185. sec 559. 15 Benjamin v. Gulf Ry., 49 Tex. 22 Sims v. Smith, 7 Cal. 148, 68 Am. Civ. App. 473, 108 S. W. 408. Dec. 233, 13 Morr. Min. Rep. 161; 16 Tnfra SPP fi^8 Bear River etc. Co. v. Xew York etc. 17 ,r ,11 ! -e v v * AT.-K Co., 8 Cal. 327, 68 Am. Dec. 325, 4 " i? d r l- oo xr w inZn. PonrilP Morr - Min - Re P- 526 ' Compare Yun- (Unof ) ,63 92 N W. 104Q; Peopl ker Nichols f 1 Colo< 551 * 8 Morr . ex rel. Lmd v City of San Luis Min . Rep . 64 ; wpra> sec . 2 23. Obispo, 116 Cal. 617, 48 Pac 723; ^ Es ond ' v ^ 15 Cal 137 5 Peterson v Santa Rosa, 119 Cal 387 Morr Mifl ^ ' WixoQ y B ^ r S*?^ 5 ' i 5 g A^ ^ on r t V ' 9 fi 7 Q T Eiver etc - Co., 24 Cal. 367, 85 Am. Guthrie, 18 Okl. 32, 90 Pac. 26, 9 L. D &Q -. M ' M} R > . T R. A., N. S., 1150, 11 Ann. Cas. 581. 5d!^ Mille"'34 Cal 231 91 Am" 18 Jung v. Neraz, 71 Tex. 396, 9 S. D ec< QQ 2 , 12 Morr. Min" Rep. 232;' W. 344. Stone v. Bumpus, 40 Cal. 428, 4 Morr. 19 Beatrice Gas Co. v. Thomas, 41 Min. Rep. 271; Gregory v. Harris, 43 Neb. 662, 43 Am. St. Rep. 711, 59 N. Cal. 38, 14 Morr. Min. Rep. 91. W. 925. 24 Supra, sees. 85, 307. 564 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 527 rially injured prior appropriators (or landowners) who were engaged in agriculture ; sluice mining ; 25 hydraulic mining. 1 In a recent case concerning quartz mining 2 it is said: "Believing that the quartz and granite can be pulverized and the tailings impounded by the construction and maintenance of a proper dam, the decree of the lower court will be reversed, and one entered here perpetually restraining the defendant, its agents and ser- vants, from the further operation of its mill until it has made suitable provision to prevent injury to plaintiff's irrigating ditches, and to the water used by him from the creeks for house- hold and for stock purposes." Some other cases enjoining pollution by mining by a subsequent appropriator are given in the note. 3 In Robinson v. Black Dia- mond Coal Co. 4 debris from coal mining was carried far down stream and there, when the stream overflowed, covered agricul- tural ground. The court there said that the long distance made no more difference than if the debris had been dumped on the fields after being carried there by carts or cars. 5 The right to the use of a stream for depositing debris from mines is discussed by Judge Lindley. 6 Many cases from the various States of the Union are cited and discussed by the author. He closes his text as follows: "No positive rule of law can be laid down to define and regulate such use with entire precision. 25 Levaroni v. Miller, 34 Cal. 231, 2 Brown v. Gold Coin etc. Co., 48 91 Am. Dec. 691, 12 Morr. Min. Rep. Or. 277, 86 Pac. 361. 232; County of Sierra v. Butler, 136 3 Carson v. Hayes, 39 Or. 97, 65 Cal. 547, 69 Pac. 418; County of Yuba p ac . 814 . Golden etc. Co. v. Superior v. Kate Hayes etc. Co., 141 Cal. 360, Court, 65 Cal. 187, 3 Pac. 628 (by 74 Pac. 1049 ; McCarthy v. Gaston hydraulic mining) ; Eureka Lake etc. etc. Min. Co., 144 Cal. 542, 78 Pac. 7. Co. v. Superior Court, 66 Cal. 311, 5 Bee, also, Salstrom v. Orleans Min. p ac< 490 (hydraulic mining) ; Mon- Co., 153 Cal. 551, 96 Pac. 292, discuss- tana etc. Co. v. Gehring (Mont.), 75 Ing also the measure of damages for Fed. 384, 21 C. C. A. 414; Humphreys pollution. T. Co. v. Frank, 46 Colo. 524, 105 l Logan v. Driscoll, 19 Cal. 623, 81 p ac . 1093 (mine water). Am. Dec. 90 6 Morr. Min Rep 172 ; 4 g c , 4 People v. Gold Run etc. Co., 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152; 5 Mr - Justice Ailshie, in Hill v. Hobs v. Amador etc. Co., 66 Cal. 161, Standard Min. Co., 12 Idaho, 223, 85 4 Pac. 1147 ; County of Yuba v. Cloke, Pac - 907 > distinguishes between pollu- 79 Cal. 239, 21 Pac. 740; Miller v. tion of the Quality of the water as a Highland Ditch Co., 87 Cal. 430, 22 fluid , ancl filling up the bed of the Am. St. Rep. 254, 25 Pac. 550; Wood- stream by dumping material in it and ruff v. North Bloomfield Co., 18 Fed. making it overflow. See Tennessee 753, 9 Saw. 441; United States v. etc - Co - v - McMillan, 161 Ala. 130, 49 North Bloomfield Co., 81 Fed. 243; South. 880. North Bloomfield v. United States, 88 6 2 Lindley on Mines, sec. 840. Fed. 64, 32 C. C. A. 84. 528 Ch.23. POLLUTION. (3ded.) 565 As to this all courts agree. It is a question of fact to be deter- mined by the jury." In a recent case it is said: "We do not mean to say that the agriculturist may captiously complain of a reasonable use of water by the miner higher up the stream, although it pollutes and makes the water slightly less desirable, nor that a court of equity should interfere with mining industries because they cause slight inconveniences or occasional annoyances, or even some degree of interference, so long as such do no substantial damage, but to permit a subsequent appropriator to so pollute or burden the stream with debris as substantially to render it less available to the prior appropriator causes him to lose the rights he gained by appropriation as readily as would the diversion of a portion of the water which he appropriated." 7 As a result of the California cases on hydraulic mining, Con- gress has prohibited it in California on the ground of interfer- ence with the navigability of the Sacramento and San Joaquin Rivers, making it a misdemeanor unless under permission from the "Debris Commissioner." 8 This prohibition is made to extend to whatever the words "hydraulic mining" or "mining by the 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 pres- sure is not clear. 9 It has been held that a permit from the commissioner does not relieve from liability for damage or pollu- tion, though the works be carried on in strict compliance with the directions of the commissioner. An injunction may, never- theless, be granted. 10 (3d ed.) 528. Priority. We have been considering the question from the view of injury to the prior appropriator. The principles on which the law of appropriation rests should apply with equal 7 Arizona Copper Co. v. Gillespie seq., such work would clearly be within (Ariz.), 100 Pac. 465. See Me- the act. If emphasis is laid on the Carthy v. Bunker Hill etc. Co. (Idaho, word "mining," it might, perhaps, not. 1908), 164 Fed. 927, 92 C. C. A. 259. The effect of the act, and the question , of pollution as applied to mining are 8 27 Stats, at Large, 507 the sub- diB Med at j*^ in Lindle * on stance of which is given in Part VIII m 8econd edi *. gection fa t below m the collection of Federal seq . ; Pom eroy on Riparian Rights, sec- statutes. tion fg 9 If emphasis is laid on the words 10 County of Sutter v. Nichols "hydraulic process," as in Lindley on (1908), 152 Cal. 688, 93 Pac. 872. 15 Mines, second edition, section 848 et L. R. A., N. S., 616, 14 Ann. Gas. 900. 566 (3ded.) Pt. III. THE LAW OF PKIOE APPROPRIATION. 528 force where the case is reversed, and the injury is to the subse- quent claimant. If the prior claimant appropriated the stream on public land for the purpose of depositing tailings, sawdust or other material in it, and so used the water at the time the subse- quent claimant arrived, the continuance of the pollution of the stream should be lawful as one of the characteristics in which the law of appropriation is a departure from the cojnmon law of _jeiparian rights. It was so held in Sims v. Smith. 11 It is similar in principle to O'Keiffe v. Cunningham, 12 where it is said that tailings can be deposited on public land by a prior appropriation (i. e., location) of the land for that purpose, and Jacob v. Day, 13 where it was held that tailings can be "rushed" across land in a ditch, if the ditch was on the land while public, prior in time to the title of the occupant of the land. There is no distinction in principle between the right acquired by priority to deposit tail- ings on public land, rush them in a ditch on public land, or de- posit them in streams on public land. They are equally rights to which exclusive use should be acquired by priority on public lands. 14 How far priority will sanction the pollution is, however, left 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. 15 Following this, pollution has been declared to be a public nuisance. 16 In People v. Elk River etc. Co. 17 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 a Colorado case 18 tailings from a stamp-mill were enjoined at the suit of a power company, though to some extent at least 11 7 Cal. 148, 68 Am. Dec. 233, 13 ex rel. Ricks v. Elk River etc. Co., 107 \ Morr. Min. Rep. 161. Cal. 214, 48 Am. St. Rep. 121, 40 Pac. , 12 9 Cal. 589. 9 Morr. Min. Rep. 486 (a dairy) ; People ex rel. Ricks 451. v. Elk River etc. Co., 107 Cal. 221, 48 13 111 Cal. 571, 44 Pac. 243. Am. St. Rep. 125, 40 Pac. 531 (a 14 Consider Sullivan v. Jones (Ariz.), sawmill) ; Arizona etc. Co. v. Gillespie 108 Pac. 476, a quarrel between sheep- (Ariz.), 100 Pac. 465. See McCarthy men on public land. v. Bunker Hill etc. Co. (1908), 164 15 See cases cited above, and People Fed. 927, 92 C. C. A. 259. v. Gold Run etc. Co., 66 Cal. 138, 56 17 c - d . h di _ ote Am. Rep. 80, 4 Pac. 1152; Woodruff )te> v. North Bloomfield Co., 18 Fed. 801, 18 Suffolk etc. Co. v. San Miguel 9 Saw. 441, especially. etc. Co., 9 Colo. App. 407, 48 Pac. 828. fi6 Conrad v. Arrowhead etc. Hotel rommented upon in Humphreys T. Co. Co., 103 Cal. 399, 37 Pac. 386; People v. Frank, 46 Colo. 524, 105 Pac. 1093. 528 Ch.23. POLLUTION. (3ded.) 567 the stamp-mill had discharged tailings into the stream before the power company began. (The number of stamps thereafter, how- ever, had been increased.) In a recent Idaho case it was held that no prescriptive right to pollute can arise because it is a con- tinuous injury. 19 Idaho has a constitutional provision 20 that appropriations for mining in mining districts shall take prece- dence over those for agriculture. The same case held that the preference to mining in the Idaho constitution has no applica- tion to questions involving pollution of streams. 21 The miner in this case had a priority over the agriculturist by virtue of the constitution; hence this is a decision that priority cannot sanc- tion pollution. In a Texas case enjoining pollution By waste from oil wells, it was held no defense that the pollution was with- out negligence and the natural consequence of a lawful business. 22 It has been held in California that the utmost care cannot excuse pollution. 23 In Conrad v. Arrowhead etc. Hotel Co. 24 where the pollution consisted in refuse from a hotel and not mining debris, 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 com- plain. Familiar examples of the application, of this rule as be- tween appropriators are of frequent occurrence in the mining regions of this State, where water is diverted 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 con- tinued deterioration is damnum absque injuria." This would seem to be correctly stated upon principle, so far as concerns claim- ants taking up public land or water subsequent to the commence- ment of the pollution. But so far as the writer can gather from 19 Hill v. Standard etc. Co., 12 Eep. 445, 6 Atl. 453, cited supra. Idaho, 223, 85 Pac. 912. Also Humphreys T. Co. v. Frank, 46 20 Art. 15, sec. 3. Colo. 524, 105 Pac. 1093. 21 Semble accord, McCarthy v. 23 Salstrom v. Orleans Min. Co. Bunker Hill etc. Co., 164 Fed. 927, 92 (1908), 153 Cal. 551, 96 Pac. 292, C. C. A. 259, though denying injunc- discussing also the measure of dam- tion. ages. Compare the "smoke cases," 22 Tpel v. Rio Bravo Oil Co., 47 such as Bliss v. Anaconda etc. Co., Tex. Civ. App. 153, 104 S. W. 423, 167 Fed. 342. disapproving Pennsylvania Coal Co. v. 24 103 Colo. 399, 37 Pac. 386. Sanderson, 113 Pa. 126, 57 Am. St. 568 (3d e Jennison v Richland Township, 46 Mich. 549, v _ gg ^ ^ 25 41 Am. St. Rep. 178, 9 N. W. 845; . Morr Min Reo 504 Brown v. Illius, 27 Conn. 84, 71 Am. l Morr " Min " Ke P' &U4> Dec. 49; Dillon v. Acme Oil Co., 49 5 Village of Twin Falls, v. Stubbs,) Hun (N. Y.), 565, 2 N. Y. Supp. 289; 15 Maho, 68, 96 Pac. 195. Barnard v. Sherley, 135 Ind. 547, 41 6 Infra, sec. 626 et seq. E. g., Long Am. St. Rep. 454, 34 N. E. 600, 35 N. v. Louisville etc. Ry., 128 Ky. 26, 107 E. 117, 24 L. R. A. 568; Long v. , S. W. 203, 13 L. R. A., N. S., 1063, Louisville etc. Ry., 128 Ky. 26, 107 S. 16 Ann. Cas. 673. 530 Ch.23. POLLUTION. (3d ed.) 569 pollution comes within criminal statutes (as, for example, when injurious to health), or becomes a public nuisance, the rights of the public may probably be considered (though no public officer appears in court) even at law. 7 At all events, questions of pollution frequently involve the public interest to such an extent that in equity, exercising 'its extraordinary jurisdiction of in- junction, such outstanding and unrepresented interests are some- times made a controlling consideration in granting or refusing the injunction. 8 Statutes frequently make the pollution of water criminal. 9 (3d ed.) 530. Conclusions. The following appears to be the state of the authorities: (a) Pollution by a nonriparian owner to the impairment of the value of riparian land is always wrongful at common law, with- put regard to_jts degree; likewise a nonriparian owner cannot complain of pollution by a riparian owner. Nonriparian owners as such have no standing in court at common law so far as they would impair the land or restrict the use of a riparian owner. (b) Pollution by one riparian owner impairing the domestic use of another riparian owner is wrongful at common law with- out regard to its degree, because domestic uses are preferred uses at common law; but where domestic use is not involved, questions of pollution between riparian owners (for example, two riparian miners) are to be governed by the test of whether the pollution is carried to an excessive degree in consideration of the equal right of both riparian owners to make a reasonable use of the stream. (c) Under the law of appropriation, pollution by a subsequent appropriator is wrongful if it, to any material degree, impairs the use of the prior appropriator, and there can be no question involved whether the impairment is unreasonable or excessive. There must, however, be an actually material impairment, and of this the complainant has the burden of proof. (d) Under the law of appropriation, upon principle, pollution by a prior appropriator against a subsequent appropriator would T Supra, debris cases. example, Alaska, Carter's Annotated 8 Infra, sec. 648 et seq. ' Code of 1900, sees. 5, 33; Cal. Stats. 9 See infra, sec. 658, crimes. For 1907, p. 492; Wyo. Stats. 1907, p. 44. 570 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 530 always seem damnum absque injuria, if it existed at the time the subsequent appropriation was made ; but the weight of author- ity is that, on the ground of public nuisance, priority will not sanction pollution where it impairs domestic use of a subsequent appropriator, or impairs the health or agriculture of a com- munity subsequently formed upon the bank of the stream, though the pollution began while the stream was upon public land before the community was formed. 531-535. (Blank numbers.) 536 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 571 CHAPTER 24. ALIENATION AND DISPOSAL OF RIGHT CONTRACTS- CONVEYANCES. A. CONTRACTS BETWEEN PRIVATE PARTIES EXCLUSIVE OP PUBLIC SERVICE COMPANIES. 536. Right of contract. 537. Subject matter of water contracts. 538. Contracts (continued). 539. Assignment. 540. Contracts with public service companies are governed by special rules. B. CONVEYANCES. 541. Water-rights may be conveyed. 542. Formalities on transfer. 543. Subject matter f conveyance. 544. Construction and operation of conveyance. 545. Reservations. 546. Sales of uncompleted works After-acquired property. 547. Sale in parts. 548. Lease or exchange or other temporary disposal. 549. Sales of "water-rights" by public service companies. C. APPURTENANCE. 550. Whether the water-right is an appurtenance to land. 551. Same. 552. Whether passes on sale of land when appurtenant thereto. 553. Upon subdivision of land. 554. Appurtenance (concluded). D. PAROL SALE. 555. Parol sales of possessory rights on the public domain. 556. Parol sales and licenses in equity. 557. Conclusion. 558-565. (Blank numbers.) A. CONTRACTS BETWEEN PRIVATE PARTIES (EXCLUSIVE OF PUBLIC SERVICE COMPANIES). (3d ed.) 536. Right of Contract. A reference to the cases at large will disclose contracts of all kinds made by the appropriators whereby the water is apportioned between them, sold or dealt 572 (3ded.) Pt. III. THE LAW OF PKIOB APPROPRIATION. 537 with like other property. The court in an early case 1 says: "It can be transferred like other property." 2 One case maybe stated to show the great freedom in this respect. 3 A homestead claimant had sold a water-right of appropriation and a ditch appurtenant 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 inter- fere with the sale of the ditch and water-right acquired by appropriation. A similar question arose in another case. 4 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. Beside the general principles considered in this chapter, refer- ence is made to other places in the book where contracts are con- sidered in particular connections. 5 (3d ed.) 537. Subject Matter of Water Contracts. Where a contract concerns water in a reservoir, ditch, pipe, or other waterworks or structure that has reduced it to possession, the water therein is private property, the subject of contract as a corpus, and so far as it is property, is personal property. 6 Occasionally con- tracts may have such specific water as their subject matter. A contract with a house-supply company in a city is an example of this, the substance itself (as a liquid) being the subject of the contract, and a contract with such a company, so far as it is one of sale, 7 is for the sale of personal property. 8 Other illustrations 1 McDonald v. Bear R. Co., 13 Cal. 1062, holding contra as to a sale for 220, at 233, 1 Morr. Min. Rep. 626. power use. In Washington (Pierce's Code, sec. 4 Lobdell v. Hall, 3 Nev. 507. 5136) almost identical words are used. 5 Contracts concerning ditches, 2 See People's Ditch Co. v. Fresno supra, sec. 458. Contracts with ri- Canal Co. (1907), 152 Cal. 87, 92 Pac. parian owners, infra, sec. 844 et seq. 77; Fresno Canal Co. v. Park, 129 Cal. Contracts by water users' associations, 437, 62 Pac. 87; Barkley v. Tieleke, infra, sec. 1415. Of irrigation dis- 2 Mont. 59; Thompson Co. v. Penne- tricts, infra, sec. 1356 et seq. Be- baker (Wash.). 173 Fed. 849, 97 C. tween tenants in common, supra, sec. C. A. 591, citing the second edition of 320. Concerning percolating water, this book. infra, sec. 1172. See, in general, the 3 Mt. Carmel etc. Co. v. Webster, index at the end of the book. 140 Cal. 183, 73 Pac. 826. See Village Supra, sees. 30 et seq., 35. of Hailey v. Riley, 14 Idaho, 481, 95 7 Primarily it is a contract of Pac. 686, 17 L. R. A., N. S., 86, hold- service rather than of sale. Infra, ing similarly as to a desert entryman sec. 1324. after final proof. But see Cascade etc. 8 People ex rel. Heyneman v. Blake, Co. v. Railsback (Wash.), 109 Pac. 19 Cal. 595, Field, J., quoted supra, 537 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 573 may be instanced. Thus, if one artificially manufactures water from oxygen and hydrogen, and leads it in a ditch from the factory to a bottling works, and contracts with me about the water in the ditch, it is obviously a contract concerning personalty. So if one has a spring of medicinal waters and collects the water in a reservoir preparatory to bottling, and contracts to sell one reservoir full, it would be a sale of personal property. Likewise, if he sells me so many gallons from the reservoir measured by a meter. The specific particles sold could be marked and set aside. The very body of water in the reservoir at time of purchase may have peculiar mineral properties not again occurring, so that the purchaser desires just that very water. In such supposable cases it is the corpus of water, a specific body of the substance in specie, that is contracted about. But such situations are unusual. Contracts for irrigation or water-power or similar uses usually have in view a natural stream, and then the usufructuary "water-right" in the stream (and not the water itself) alone constitutes private property; the water itself therein cannot be the subject of contract because it is not the subject of ownership. 9 Contracts between private par- ties 10 for irrigation usually deal with ' ' water-rights ' ' or the ' ' usu- fruct," or continual flow and use of the natural stream as a natural water resource. While the city supply water company above considered sells the householder only so many gallons or cubic feet of liquid measured by a meter, not professing to grant a perpetual flow from a natural stream, nor to confer upon the householder any "water-right," on the other hand, if the man above supposed, who bought a reservoirful of mineral water, buys instead (as he usually does) the right to have the mineral water flow from the spring which supplies the reservoir, he would be contracting concerning the water-right concerning realty and not personalty. As a general principle, it is the water-right which irrigation and similar contracts have for their subject sec. 35; Spring Valley W. W. v. v. Indiana etc. Co., 120 Ind. 575, 22 Schottler, 110 U. S. 347, 4 Sup. Ct. N. E. 778, 6 L. R. A. 579; People's Rep. 48, 28 L. Ed. 173, quoted supra, Gas Co. v. Tyner, 131 Ind. 277, 31 sec. 33; Hesperia etc. Co. v. Gardner, Am. St. Rep. 433, 31 N. E. 59, 16 L. 4 Cal. App. 357, 88 Pac. 286. Com- R. A. 443, 17 Morr. Min. Rep. 481. pare Carothers v. Phil. Co., 118 Pa. 9 Supra, c. 1. 468, 12 Atl. 314; Ohio Oil Co. v. In- 10 Regarding this question in con- diana, 177 U. S. 190, 20 Sup. Ct. Rep. tracts with public service irrigation 576, 44 L. Ed. 729. 20 Morr. Min. companies, see infra, sec. 1324 et seq. Rep. 466; citing State ex rel. Corwin 574 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 538 matter, and hence, as a rule, they concern real 'property grant- ing an interest in the ditch and water-rights of the grantor. 11 A grant of a water-right involves no title to the corpus of water in a natural stream, but only a usufruct the right to the flow and use of the stream. 12 Further reference is specially made to the opening chapters of the book. (3d ed.) 538. Contracts (Continued). Appropriators may settle their rights by contracts ; 13 but agreements must be in writing within the statute of frauds, 14 unless the parol agreement was in- tended to be permanent and has been executed, or there has been part performance such as will take the case out of the statute in equity. 15 A parol license if unexecuted or if not intended per- manent is revocable, and is revoked by death. 16 A contract being to supply water from a specific canal, failure of the supply in the canal from natural causes relieves the canal owner from liability for the failure to supply the water, 17 and is not failure of consideration such as to allow recovery of ad- vance payments ; 18 but it would be otherwise where the contract referred to no specific canal. 19 Prevention by injunction at suit 11 See infra, sec. 1324 et seq. 14 Bree v. Wheeler, 4 Cal. App. 109, 12 Kidd v. Laird, 15 Cal. 161, at 87 Pac. 255; Schilling v. Rominger, 4 180, 76 Am. Dec. 472, 4 Morr. Min. Colo. 100; Oliver v. Burnett (1909), Rep. 571; McDonald v. Askew, 29 Cal. 10 Cal. App. 403, 102 Pac. 223. A 200, at 207, 1 Morr. Min. Rep. 660 ; parol contract to furnish water "at all Johnston v. Little Horse Co., 13 Wyo. times" is void under the statute of 208, J.10 Am. St. Rep. 986, 79 Pac. 22, frauds as a contract not to be per- 70 L. R. A. 341 ; Mayor v. Commis- formed within a year. Metropolitan sioners, 7 Pa. 363. In Duckworth v. etc. Co. v. Topeka etc. Co. (Kan.), Watsonville Co., 150 Cal. at 532, 89 132 Fed. 702. Pac. 338, Mr Justice Shaw said: 15 See inf see 555 et "The claim of the respondents that the grant by Mrs. McKinley of the Se e */>, sec. 556. rights pertaining to the land described 17 See Fresno Milling Co. v. Fresno in the deeds extended only to the water Canal etc. Co., 126 Cal. 640, 59 Pac. then standing in the lake, and that as 140, semble. See Evans v. Prosser soon as that water was exhausted by etc. Co. (Wash.), 113 Pac. 271, hold- use, runoff or evaporation, the rights ing, however, that if more efficient ceased to exist, is utterly baseless, and appliances could remedy the deficiency, needs no discussion further than to there is no excuse. n (Cal.), 110 Pac. 927. See, also, 81 Neb. 641, 116 N. W. 514. Booth v. Chapman, 59 Cal. 194; Booth 19 Cf. Wilson v. Alcatraz Co., 142 v. Trager, 44 Colo. 409, 99 Pae. 60. Cal. 188, 75 Pac. 787 (oil).. See Red- 13 Biggs v. Utah etc. Co.. 7 Ariz. water Co. v. Jones (S. D.), 130 N. W. 331, 64 Pac. 494. 85. 538 Ch. 24. CONTRACTS CONVEYANCES. (3d ed.) 575 of a third party does not excuse for breach of contract to furnish water. 20 A contract for conveyance of a "good and sufficient water- right" is fulfilled by tender of certificates in a mutual irrigation company. 21 Contracts may be made for "developing" under- ground water. 22 One who buys a right to a specific quantity of water has, against his grantor, unlimited right of disposal thereof, and may resell it to others in whole or part, 23 provided the grantor is not in public service. 24 An agreement whereby one acquires from another the right to a specific quantity of water in general terms passes a right as between the parties without regard to the use made of the water. The covenantor cannot follow the water after its delivery to the covenantee, who consequently may, when not needing all himself, license use of the surplus to his neighbors for a rental. 25 In the case just cited it is said : "As he had purchased the right to the use of all the waters conveyed from the irrigation ditch, he was entitled to an unrestricted control over that use. He was not limited by any contract with defendant upon the sub- ject. He is not taking any more water than he purchased, and is not using himself or licensing to his neighbors more than he bought. Having purchased the use of a given quantity, if he cannot use it all himself, we see no reason why he cannot sell the right to a temporary use of it to his neighbors, as wanted, for a beneficial purpose. To hold that he cannot do so would be to impose a restriction for which no warrant is found in the agree- ment of purchase, and would be in effect to deprive him of a valuable incident to the ownership of this character of property, the right to dispose of its use to others when it is not required for use by the owner himself. There is no law which will impose the limitation contended for by appellant." 20 Sample v. Fresno etc. Co., 129 22 Painter v. Pasadena Co., 91 Cal. Cal. 222, 61 Pac. 1085. Contra, 74 > 27 Pac - 539 5 Roberts v. Krafts, Fresno Milling Co. v. Fresno Canal CaL 20 > 74 Pac ' 281< Co., 126 Cal. 640, 59 Pac. 140, under 23 Calkins v. Sorosis etc. Co., 150 . . . Cal. 426, 88 Pac. 1096. express provision in the contract tor such excuse 24 Leavitt v. Lassen Irr. Co. (1909), 157 Cal. 82, 106 Pac. 404. See infra, 21 Fairbanks v. Rollins (Cal.), 54 sec ^24 e t se q. Pac. 79. See Nampa Irr. Dist. v 25 Calkins v. Sorosis Fruit Co., 150 Gesa, 17 Idaho, 552, 106 Pac. 993. Cal. 426, 88 Pac. 1094. 576 (3de Stanislaus Water Co. v. Bachman, four v. Fresno Irr. Co., 109 Cal. 221, Cal. App., March 30, 1906. 41 Pac. 876; Fresno Canal etc. Co. v. 10 Same v. Same (1908), 152 Cal. Park, 129 Cal. 435, 62 Pac. 87. But 716, 93 Pac. 858, 15 L. R. A., N. S., that is owing to no peculiarity of the 359. law of appropriation; it applies to u 157 Cal. 82, 106 Pac. 404. other contracts also. See Cal. Civ. 12 Infra, sec. 1315 et seq. Code, see. 1468. See, also, Hoboken 13 Thompson Co. v. Pennebaker Co. v. Mayor etc., 76 N. J. L. 122, 68 (Wash.), 173 Fed. 849, 97 C. C. A. Atl. 1099. 591. Water Rights 37 578 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 540 land and the water appurtenant thereto or used in connection therewith, after the passage of this act. ' ' 13a (3d ed.) 540. Contracts With Public Service Companies are Governed by Special Rules. Contracts with canal or irrigation companies (public service companies) for supply are separately considered in a later chapter. It has not always hitherto been borne in mind that public service companies are under duties to the public which bring their contracts under some different rules, for the .protection of the public, than those between private parties alone. Where an irrigation company sells its plant to a new company (as, for example, upon foreclosure of mortgage upon the dis- tributing system), it has usually been held in the West that the new company is bound to the terms of the old contracts. 14 This is usually on the holding that the consumer has an interest in the real estate of the distributing system ; but where the distributing system is one devoted to public use, it seems now held in Califor- nia 15 that the consumer's right is one of service as a member of the public, and his contract does not involve an interest in real estate. It consequently seems now the rule in California that contracts will not bind the new company without an express or implied assumption thereof by it; that the consumer's right against the new company is a right of service depending upon the duties of the company to serve the public irrespective of con- tract, but that the contract will apply against the new company as strong evidence of what would be a proper and reasonable service and charge to all members of the public. The California cases above referred to 16 have been limited as applying only to contracts and transfers between private parties, and not to con- sumers from public service companies, 17 though throughout the I3a S. D. Stats. 1905, p. 201, sec. n Infra, sec. 1320. 55; S. D. Stats. 1907, c. 180, sec. 56. 15 Leavitt v. Lassen Irr. Co., 157 Likewise N. D. Stats. 1905, p. 270, Cal. 82, 106 Pac. 404, and Lassen Irr. sec. 44; N. M. Stats. 1907, p. 71, sec. Co. v. Long, 157 Cal. 94, 106 Pac. 52. Quaere, what bearing, if any, 409. has the constitutional provision 16 Hunt v. Jones, 149 Cal. 297, 86 against impairing the obligation of Pac. 686; Fresno Co. v. Park, 129 contracts? Cal. 437, 62 Pac. 87, and Stanislaus Regarding statutory lien on land W. Co. v. Bachman, 152 Cal. 716, 93 for water charges, see, also, Hoboken Pac. 858, 15 L. R. A., N. S., 359. etc. Co. v. Mayor etc., 76 N. J. L. 17 Lassen Irrigation Cases, supra. 122, 68 Atl. 1099. 541 Ch. 24. CONTRACTS CONVEYANCES. (3d ed.) 579 West, the status of the law of public service is somewhat un- settled. As a general principle, rights of consumers from public service companies (irrigation, canal, and other companies supplying the public use) rest upon certain duties of the company to the entire public, and where a contract with such a company exists, it is rather an incidental matter, and governed by different rules, in many respects, than contracts or sales between private parties. 18 B. CONVEYANCES. (3d ed.) 541. Water-rights may be Conveyed. Possessory rights on the public domain (from which the law of appropriation arose) 19 were always recognized as transferable. It is consequently said that a water-right "can be transferred like other property." 20 Water-rights may pass by descent ; 21 may be sold on execution ; 22 may be mortgaged. 23 Some special rules, however, may come in regarding parol sales, 24 and sales by public service companies. 25 18 Infra, sec. 1315. orado Springs (1891), 16 Colo. 70, w Supra, sec. 82 et seq. 25 Am - st - Re P- 245 > 26 Pac. 313. 20 McDonald v. Bear E. Co, 13 Cal. fi J% Hall 1Q V - Blackman, 8 Idaho, 272, 220, at 233, 1 Morr. Min. Rep. 626. 8 ^ a , c ; p 19 ' .fee Griseza v Terw: ,lh- Like realty Barkley v. Tie&e, 2 ^f'! 44 Ca Mf''? * a ^ Estate Mont. 59; as real estate, Colo. Rev. of J^"' 147 ^f^K^n Stats. 1908, sec. 669. pj g^**" v " Hlll 65 Cal - 17 > 2 "Possessory rights on the public do- 23 Farm Inv. Co. v. Alta etc. Co., 28 main have always been recognized as Colo. 408, 65 Pac. 22; Mitchell v. transferable, and water-rights can be Canal Co., 75 Cal 464, 17 Pac 246 transferred like other property." both considering a question of after- Thompson v. Pennebaker (Wash.), acquired property. As to which see, 173 Fed. 851, 97 C. C. A. 591, citing a i so> Stanislaus Water Co. v. Bach- this book, 2x1 ed., sec. 221. man (1908), 152 Cal. 716, 93 Pac. 858, "We grant that the water itself is 15 L. R. A., N. S., 359, and Bear Lake the property of the public; its use, Co. v. Garland, 164 U. S. 1, 17 Sup. however, is subject to appropriation, Ct. Rep. 7, 41 L. Ed. 327. and in this case it is conceded that Upon foreclosure of mortgage, all the owner has the paramount right to claimants under the mortgagor must such use. In our opinion this right be made parties, or their easements or may be transferred by sale so long water-rights will not pass to the fore- as the rights of others, as in this case, closure purchaser. Schwab v. Smug- are not injuriously affected thereby. gler Union Co. (Colo. C. C. A.), 174 If the priority to the use of water for Fed. 305. See, also, infra, sec. 1320, agricultural purposes is a right of mortgages of plant of public service property, then the right to sell it is company, as essential and sacred as the right to 24 Infra, sec. 555. possess and use." Strickler v. Col- 25 Infra, sec. 1324 et seq. 580 (3ded.) Pt. III. THE LAW OF PRIOR APPKOPRIATION. 542 (3d ed.) 542. Formalities on Transfer. The conveyance must be in writing, as of an interest in real estate * within the statute of frauds. 2 But probably this applies only between the parties to a sale, and cannot be taken advantage of by third persons, 3 and even between the parties parol sales may be effectual in some cases. 4 The sale must be recorded, as it is within the recording acts, as an interest in real estate, 5 and under the recent water codes, record must usually be made also in the office of the State Engi- neer. 6 But recording is not necessary inter partesJ 1 The differ- ence between the statute of frauds and the registry acts in this is that the former is to prevent frauds betiveen the parties, while the latter are to prevent frauds on third parties by giving them constructive notice. Consequently, actual notice to third parties purchasing subsequent to a prior unrecorded conveyance is equiva- lent to recording, and a purchaser with notice cannot set up failure of record as invalidating the prior grant, and possession of ditches and water structures by the former grantee is generally, especially where coupled with open use, notice to the world. 8 "The 1 Supra, sec. 283 et seq. 2 California. Smith v. O'Hara, 43 Cal. 371, 1 Morr. Min. Rep. 671; O'Neto 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; Griseza v. Ter- williger, 144 Cal. 456, 77 Pac. 1034; Oliver v. Burnett (1909), 10 Cal. App. 403, 102 Pac. 223. Colorado. Child v. Whitman, 7 Colo. App. 117, 42 Pac. 601; Burn- ham v. Freeman, 11 Colo. 601, 19 Pac. 761; Daum v. Conley, 27 Colo. 64, 59 Pac. 753. Montana. Middle Creek Co. v. Henry, 15 Mont. 558, 39 Pae. 1054. 3 -Daum v. .Conley, 27 Colo. 56, 59 Pae. 753, a point upon which there has been much discussion, depending upon the wording of the statute of frauds as enacted in different States. See, also, Watts v. Spencer, 51 Or. 262, 94 Pac. 39; Featherman v. Hennessey (Mont.), 113 Pac. 751. 4 Infra, sec. 555 et seq. 5 Partridge v. McKinney, 10 Cal. 181, 1 Morr. Min. Rep. 185; Lyles v. Perrin, 119 Cal. 264, 51 Pac. 332; Leavitt v. Lassen Irr. Co., 157 Cal. 82, 106 Pac. 404. See Stanislaus W. Co. v. Bachman (1908), 152 Cal. 716, 93 Pac. 858, 15 L. R. A., N. S., 359, holding "Miscellaneous" to be a proper book for the instrument in that case. 6 E. g., Utah Laws 1905, c. 108, sees. 62; 63, and subsequent Utah acts. In Wyoming, it is enacted: "Every conveyance of a ditch, canal or reser- voir, or any interest therein, shall hereafter be executed and acknowl- edged in the same manner as a con- veyance of real estate and recorded as herein provided, and any suck con- veyance which shall not be made in conformity with the provisions of this act shall be null and void as against subsequent purchasers thereof in good faith and for a valuable considera- tion." Laws 1907, c. 86, p. 138, sec. 22. 7 Whalon v. North Platte etc. Co., 11 Wyo. 313, 71 Pac. 995; Middle Creek etc. Co. v. Henry, 15 Mont. 558, 39 Pac. 1054; Little v. Gibb, 57 Wash. 92, 106 Pac. 491. s Powers v. Perry, 12 Cal. App. 77, 106 Pac. 595 (dictum, but holding 543 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 581 open and notorious possession and user of water from an irriga- tion canal through lateral ditches is constructive notice to a pur- chaser of the rights of the party so in possession and using the water." 9 The statute of limitations concerning realty applies to water- rights. 10 In California, the distinction between sealed and unsealed instruments has been abolished. 11 As to the necessity of a seal where the distinction still prevails, see cases in the note. 12 The sale is complete on delivery of a deed and possession. 13 (3d ed.) 543. Subject Matter of Conveyance. A grant of a water- right is not a grant of property in the corpus of the water. A sale does not sell the water itself nor mean the delivery of any specific quantity of water; it merely passes the right to use it and have it flow. 14 The size of the estate granted may sometimes be a difficult question, 15 especially in cases of public service companies. 16 no notice upon the facts); Evans v. 1 Morr. Min. Eep. 626; Barkley v. Lakeside D. Co., 13 Cal. App. 119, 108 Tieleke, 2 Mont. 59, 4 Morr. Min. Pac. 1027. Rep. 666; Mattis v. Hosmer, 37 Or., 9 Park v. Park (1909), 45 Colo. 347, 523, 62 Pac. 17, 632. 101 Pac. 406; McLure v. Koen, 25 13 Booth v. Chapman, 59 Cal. 149. Colo. 284, 53 Pac. 1058; Conger v. 14 Supra, sec. 537. Weaver, 6 Cal. 548, 1 Morr. Min. Rep. 15 A written permission to build a 594. Reasonable diligence would, it is ditch, held to grant a perpetual ease- held, require a prospective purchaser ment. Shaw v. Proffitt (Or. 1910), of a portion of land to investigate the 109 Pac. 584. An agreement to al- title to priorities, where three persons low defendants to flow slimes and after a decree openly continued to use tailings from a mine through plain- all the water for irrigating their tiff's predecessor's flumes, pipes, farms as before the decree, and it was sluices and reservoirs and onto plain- constructive notice of their rights tiff's predecessor's land, held to grant though the decree itself did not settle an easement which, being an interest such rights. Park v. Park, 45 Colo. in realty, was not lost by foreclosure 347, 101 Pac. 403. of a mortgage on plaintiff's property, As to the effect of possession as to which foreclosure defendant was notice, see also, the following sections, not a party. Schwab v. Smuggler regarding apparent easements between Union Co. (Colo.), 174 Fed. 305, 98 the parties. The present section refers C. C. A. 160. Deed of reservoir to third persons. site construed and held to pass a 10 Infra, sec. 579 et seq., adverse fee in the soil and not merely an ease- possession, ment of flooding. Van Slyke v. Ar- il Civ. Code, sec. 1629. rowhead etc. Co. (1909), 155 Cal. 12 Ortman v. Dixon, 13 Cal. 33; 675, 102 Pac. 816. McDonald v. Bear R. Co., 13 Cal. 220, 1C Infra, sec. 1324 et seq. 582 (3ded.) Pt. IIL THE LAW OF PRIOR APPROPRIATION. 544,545 (3d ed.) 544. Construction and Operation of Conveyance. Contracts and conveyances must be certain. "Sufficient to irrigate said land" in a deed is probably too uncertain. 17 By a written conveyance, priority is preserved. 18 A sale cannot bind other appropriators not parties to it, nor abridge their rights, nor be valid as against them to their injury. 19 Thus, a grant of an appropriation by a mill owner cannot, as against lower (though subsequent) appropriates, confer any right to make a different use of the water than the mill did, to their prejudice, such as to take the water permanently away for irrigation. 20 It has been held that the grantee cannot sue for damages for a diversion antedating the sale. 21 Mortgages are some- times postponed to water charges. 22 Where one agrees to furnish water to another, the conveyance into a single person of all of both parties' rights and duties under such a contract could result in nothing but a merger of these rights and duties and an extinguishment of the contract, since no man can contract with himself and no man can be compelled to furnish water to himself and pay himself therefor. 23 (3d ed.) 545. Reservations. Unless otherwise provided by statute, the right may be sold separate from land, since it is independent of title to or possession of land, as is more fully considered elsewhere. 24 Likewise, the water-right and ditch right may be sold separately, and the conveyance of one does not necessarily include the other. 25 As below considered, though a water-right is usually appur- tenant to the land where used, yet it may be reserved on a sale 17 See Leavitt v. Lassen Irr. Co., 21 Kimball v. Gearhart, 12 Cal. 27, 157 Cal. 82, 106 Pac. 404. See as to 1 Morr. Min. Rep. 615; Rianda v. certainty generally, Stanislaus W. Co. Watsonville etc. Co. (1907), 152 Cal. v. Bachman, 152 Cal. 716, 93 Pac. 523, 93 Pac. 79. 858, 15 L. R. A., N. S., 359; Booth v. 22 Supra, sec. 539. Trager (1908), 44 Colo. 409, 99 Pac. 23 Mr. Justice Henshaw, in Leavitt 60; Thompson v. Pennebaker, 173 v. Lassen Irr. Co., 157 Cal. 82, 106 Fed. 849, 97 C. C. A. 591. A ditch Pac. 404. is sufficiently described in a deed as 24 Supra, sees. 281, 508 et seq. "Watson Ditch." Murray v. Tulare Under water codes, approval of the Irr. Co., 120 Cal. 315. State Engineer is necessary. 18 Infra, sec. 555 et seq., parol sale. 25 Wold v. May, 10 Wash. 157, 38 19 See supra, 499 ; infra, sec. 626 Pac. 875 ; Ada etc. Co. v. Farmers' et seq. etc. Co., 5 Idaho, 793, 51 Pac. 990, 20 Windsor Co. v. Lake Supply Co., 40 L. R. A. 485; Rogers v. Riverside 44 Colo. 214, 98 Pac. 729. etc. Co., 132 Cal. 9, 64 Pac. 95. 546 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 583 of the land. A "reservation" is something extracted from the whole res covered by the general terms of the grant, lessening the thing granted from what it would otherwise have been. 1 A grantee's acceptance of a deed containing a reservation to the grantor of a priority or appropriation of water for a certain reservoir, when no priority or appropriation had b'een secured, did not estop' the grantee to claim an appropriation of its own for such reservoir. 2 Implied reservations may exist from circumstances. A con- veyance of land is subject to apparent water-right or ditch .ease- ments, 3 or those of which the grantee has notice, 4 but not to nonapparent ones of which the grantee has no notice. 5 Even in Colorado one cannot enter upon another's land to build an irri- gation ditch which was not there when he acquired the land, contrary to the rule at first asserted in Colorado that all land was held subject to entry by irrigators to build ditches across it. 9 (3d ed.) 546. Sales of Uncompleted Works After-acquired Prop- erty. A sale before completion of the appropriation gives the grantee a right to complete it where diligence has been used in the construction work, preserving priority ; 7 but where a right has been lost by lack of diligence in construction work, 8 or by nonuser and abandonment, 9 there is nothing to sell and a con- veyance passes nothing. A sale between notice and completion, while acting diligently, is valid, and the purchaser's completion relates back to the original notice. 10 Rights of purchasers from 1 Hough v. Porter, 15 Or. 318, 95 Canyon W. Co. v. Everett (1908), 154 Pac. 732, 98 Pac. 1083, 102 Pac. 728. Cal. 29, 96 Pac. 811. 2 Windsor R. Co. v. Lake Supply 4 Fresno Canal Co. v. Rowell, 80 Co., 44 Colo. 214, 98 Pac. 729. Cal. 114, 13 Am. St Rep. 112, 22 Pac. Reservations in deeds construed: 53 See Kelly v. Hynes (Mont. 1910), 5 B] , B ._ _ ins T>*fl 7R^- Ppfprsrm v TVIVDnnald r>ldKe V. ISOye, 38 1^010. OO, 88 IUB .rac. IKO, .reie a v. IYICJ uu, p ,,- 8 T, R A MS d.18 13 Cal. App. 644, 110 Pac. 465; Bal- rac " 4 ' U ' * ^ K ' A '' "' b -> 418 ' lard v. Titus, 157 Cal. 673, 110 Pac. 8 Supra, sec. 221 et seq. 118; German etc. Soc. v. McLellan T Nevada etc. Co. v. Bennett, 30 Or. (1908), 154 Cal. 710, 99 Pac. 194. 59, 60 Am. St. Rep. 777, 45 Pac. 472. 3 Baldock v. Atwood, 21 Or. 73, 26 8 Colorado etc. Co. v. Rocky Ford Pac. 1058; Shaw v. Proffitt (Or.), 110 etc. Co., 3 Colo. App. 545, 34 Pac. 580. Pac. 1092. Purchaser of land takes Davis v. Gale, 32 Cal. 26, 9 Am. subject to visible dam and ditch Dec. 554, 4 Morr. Min. Rep. 604; easement. Arterburn v. Beard (1910), Kirman v. Hunnewill, 93 Cal. 519, 29 86 Neb. 733, 126 N. W. 379. Whether Pac. 124. a pipe-line buried in the ground is an 10 Beckwith v. Sheldon (1908), 154 apparent easement, left open in Rubio Cal. 393, 97 Pac. 867. 584 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 547 a mere squatter, claiming under the doctrine of prior appropria- tion, relate back to the original diversion. 11 Mortgages or mechanics' liens may attach to property added to water struc- tures in course of completion or afterward acquired. 12 Sales may be made of permits from the State Engineer to make appropriations, and the purchaser of the permit will stand, in the shoes of his vendor. 13 This is usually expressly allowed by statute, with the additional requirement of recording the transfer with the State Engineer. 14 In Idaho the record in the State Engineer's office does not necessarily contain a record of assignments of the permit or transfers made thereof, as no pro- vision is made for recording such assignments or transfers in the State Engineer's office. 15 The grantor of a water-right which he does not own at the time is estopped by his deed from claiming it if afterward acquired by him. 16 But reservation to a grantee of a priority of appropriation of water for a reservoir, which had not been in fact acquired by the grantor, did not estop the grantee from claiming priority for a subsequent appropriation for such reser- voir. 17 The owner of a water-right who accepts a "lease" thereof from another claimant, while he is himself in possession, and who has not at any time received the possession from the lessor, is not estopped by the lease from asserting his title against said lessor. 18 (3d ed.) 547. Sale in Parts. An appropriation may be sold in parts and a sale of a part is not per se void as an abandonment of that part. 19 A sale of a part which, previous to the sale, has in fact 11 Hough v. Porter, 51 Or. 318, 95 214, 98 Pac. 729. See Bessemer etc. Pac. 732, 98 Pac. 1083, 102 Pac. 728. Co. v. Woolley, 32 Colo. 439, 105 Am. 12 Supra, sec. 541., St. Rep. 91, 76 Pac. 1053, holding a 13 Whalon v. North Platte etc. Co., certain clause not to pass after- 11 Wyo. 313, 71 Pac. 995. acquired water-right. 14 E. g., N. M. Stats. 1907, p. 71, 18 Strong v. Baldwin (1908), 154 sec. 36; S. D. Stats. 1907, c. 180, sec. Cal. 150, 129 Am. St. Rep. 149, 97 32; N. D. Stats. 1905, c. 34, sec. 31. Pac. 178; citing Oneta v. Restano, is Speer v. Stephenson (1909), 16 89 Cal. 63, 26 Pac. 788. Compare Idaho, 707, 102 Pac. 365. Swift v. Goodrich, 70 Cal. 103, 11 16 Dictum, Rianda v. Watsonville Pac. 561. W. Co. (1907), 152 Cal. 523, 95 Pac. 19 Senior v. Anderson, 138 Cal. 716, 79. See Shaw v. Proffit (Or.), 110 72 Pac. 349; McDanold v. Askew, 29 Pac. 1092. Cal. 200, 1 Morr. Min. Rep. 660; IT Windsor Reservoir & Canal Co. Drake v. Earhart, 2 Idaho, 716, 23 V. Lake Supply Ditch Co., 44 Colo. Pac. 541; Strickler v. Colorado 548 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 585 been abandoned for nonuse, will pass nothing, however. 20 Con- sequently a sale of the surplus one does not need will pass nothing, where the facts show that such lack of need preceded the sale in such a way as to have caused abandonment or for- feiture before the sale, so as to show that the seller at the time of sale had no right to such surplus. 21 A sale of a part which would injure subsequent appropriators by the new use made of it is invalid against them. 22 But a sale of part is valid between the parties to the sale in any event, 23 the parties becoming tenants in common. 24 (3d ed.) 548. Lease or Exchange or Other Temporary Disposal. "Leases" or "loans" or similar transactions in water-rights cannot create the relation of landlord and tenant, since water- rights are incorporeal hereditaments in which tenancy cannot exist. A water-right may be sold outright for use on different land, but cannot be leased for temporary use. 25 A "lease" of a water-right does not bring in the law of estoppel that applies between landlord and tenant. 1 The owners of a mining ditch, who took water therefrom for irrigation, by leasing their interest therein, were held to have abandoned their irrigation rights in the ditch. 2 Colorado permits contracts for the "loan" of water, an anomalous procedure, authorized by statute, 3 but not favored by the court. Springs, 16 Colo. 61, 25 Am. St. Rep. 23 Calkins v. Sorosis Fruit Co., 150 245, 26 Pac. 313; Larrimer etc. Co. v. Cal. 426, 88 Pac. 1094. Cache La Poudre etc. Co., 8 Colo. App. 24 Rose v. Mesmer, 142 Cal. 322, 237, 45 Pac. 525; Ft. Morgan Co. v. 75 Pac. 905. So. Platte D. Co., 18 Colo. 1, 36 Am. 25 Slosser v. Salt R. Co. (1901), 7 St. Rep. 259, 30 Pac. 1032; Middle Ariz. 376, 65 Pac. 332. Cr. Co. v. Henry, 15 Mont. 558, 39 i Swift v. Goodrich, 70 Cal. 103, Pac. 1054; Frank v. Hicks, 4 Wyo. 11 Pac. 561; Strong v. Baldwin 502, 35 Pac. 475, 1025; Milheiser v. (1908), 154 Cal. 150, 129 Am. St. Long, 10 N. M. 99, 61 Pac. Ill; Hall Rep. 149, 97 Pac. 178. Cf. Oneta v. v. Blackman, 8 Idaho, 272, 68 Pac. Restano, 89 Cal. 63, 26 Pac. 788. 19; Calkins v. Sorosis etc. Co., 150 2 Davis v. Chamberlain, 51 Or. 304, Cal. 426, 88 Pac. 1094. 98 Pac. 154. 20 Davis v. Gale, 32 Cal. 26, 91 Am. A covenant in a lease to furnish Dec. 554, 4 Morr. Min. Rep. 604; water for irrigation held not complied Kirman v. Hunnewill, 93 Cal. 519, 29 with by furnishing a well with the Pac. 124; Manning v. Fife, 17 Utah, cap locked, so that water could not be 232, 54 Pac. 111. obtained without breaking the lock. 21 Dictum, Johnston v. Little Horse Smith v. Hicks, 14 N. M. 560, 98 etc. Co., 13 Wyo. 208, 110 Am. St. Pac. 138. Rep. 986, 79 Pac. 22, 70 L. R. A. 341. 3 3 Mills' Ann. Stats., 2d ed., sees. 22 Creek v. Bozeman etc. Co., 15 2271a-2271e; Mills' Ann. Stats. Rev. Mont. 121, 38 Pac. 459. Supp., sec. 2273c; Rev. Stats. 1908, 586 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 549,550 The statute provides that the owners of irrigation ditches and water- rights taking from the same stream may exchange with and loan to each other, for a limited time, water to which each may be entitled, for the purpose of saving crops or of using the water in a more economical manner. This is held only to permit an exchange or loan of water under circumstances not injuriously affecting the vested rights of other appropriators, and the bene- ficiary of the loan must affirmatively plead and prove that the water so loaned could be and was used without injury to other appropriators, including those subsequent in priority to the lenders. So construed, the statute has been held constitutional. 4 Nor can exchanges of water be made under the Colorado law such as to convert a junior into a senior right. 5 Question of exchanges of water between the same or different owners of reservoirs cannot be determined in a statutory action to establish priorities of rights to store water in reservoirs of the district. 6 (3d ed.) 549. Sales of "Water-rights" by Public Service Companies. Concerning sales of "water-rights," so called, by a distributing company, reference is made to a later chapter. Though the decisions have not always appreciated the distinction, yet, prop- erly speaking, contracts for or sales of water supply by public service companies are, for the protection of the public, governed by different considerations than those between private parties. 7 C. APPURTENANCE. (3d ed.) 550. Whether the Water-right is an Appurtenance to Land. The water-right by appropriation is an individual thing or species of property, independent of ownership or possession of sec. 3232; Laws 1899, p. 236, sec. 3;. make many of the reservoirs of ap- Ft. Lyon v. Chew, 33 Colo. 392, 81 pellants, which , were built and used Pac. 37 ; Bowman v. Virdin, 40 Colo. for storage a decade before Fossil 247, 90 Pac. 506. But see Slosser v. Creek reservoir was conceived, subor- Salt River Co., 7 Ariz. 376, 65 Pae. dinate to the latter. No device or 332. See Kan. Gen. Laws, 1909, sec. combination of appliances that would 4436. produce such a flagrant injustice 4 Bowman v. Virdin, 40 Colo. 247, should be looked upon with favor or 90 Pac. 506. sanctioned by a court of equity." 5 "If such system of exchange, taken Windsor Co. v. Lake Supply Co. in connection with other parts of the (1909), 44 Colo. 214, 98 Pac. 729. decree in favor of the owner of the 6 Windsor Reservoir & Canal Co. v. Fossil Creek reservoir, is put into Lake Suply Ditch Co. (Colo.), supra. practice, it will necessarily convert a 7 Infra, sec. 1245 et seq. junior into a senior right. It will 551 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 587 any land, 8 and not an easement or servitude upon any other prop- erty, but a usufructuary right in a natural stream as a natural resource. As elsewhere considered at length, it may be sold separately from the land (except where the very recent legisla- tion expressly enacts the contrary). 9 It is consequently entirely a matter of the will of the owner whether, on a sale of the land, the water-right shall or shall not pass at the same time. It is well settled that a water-right may pass with land as an appurtenance thereto, or as a parcel thereof, 10 but not necessarily so; and whether a water-right passes as an appurtenance involves two questions, viz. : (a) Whether the water-right is an appurte- nance, and (&) whether, being such, it was intended to pass. Both of these are questions of fact in each case. (3d cd.) 551. Same. The first question, whether the water-right is an appurtenance, depends on whether it is an incident, neces- sary to the enjoyment of the land. The water-right is not neces- sarily appurtenant to or parcel of any land; and whether it is an appurtenance or parcel is a question of fact resting chiefly upon whether it was used specially for the benefit of the land in ques- tion. 11 When used for irrigation, there will seldom be doubt of 8 Supra, sec. 281. 777, 45 Pac. 472; Hough v. Porter, Supra, sec. 508 et seq. 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 10 Quirk v. Talk, 47 Cal. 453, 2 102 Pac. 728; Whited v. Gavin (Or.), Morr. Min. Rep. 19; Reynolds v. Hos- 105 Pac. 396; Porter v. Pettengill mer, 51 Cal. 305, 5 Morr. Min. Rep. (Or.), 110 Pac. 393; Arnett v. Lin- >6; Hungarian etc. Co. v. Moses, 58 hart, 21 Colo. 188, 40 Pac. 355; Gel- Cal. 168; Lower Kings River etc. Co. wicks v. Todd, 24 Colo. 494, 52 Pac. v. Kings etc., 60 Cal. 408; Fitzell v. 788; North American Exploration Co. Leaky, 72 Cal. 477, 14 Pac. 198; v. Adams, 104 Fed. 404, 45 C. C. A. Standart etc. Co. v. Round Valley 185, 21 Morr. Min. Rep. 65. See, also, etc. Co., 77 Cal. 399, 19 Pac. 689; 65 L. R. A. 407, note, and 17 Ency. Mitchell v. Amador Canal etc. Co., 75 of Law, 515. Cal. 464, 17 Pac. 246; Coonradt v. Utah Laws 1905, c. 108, sec. 617; Hill, 79 Cal. 587, 21 Pac. 1099; Me- Idaho Rev. Codes, sec. 3240; Stats. Shane v. Carter, 80 Cal. 310, 22 Pac. 1901, sec. 9b; Stats. 1903, p. 223, 178; Crooker v. Benton, 93 Cal. 365, sec. 9, as amended 1905, p. 174, sec. 28 Pac. 953; Clyne v. Benicia etc. 38; Okl. Stats. 1905, p. 274, sees. Co., 100 Cal. 310, 34 Pac. 7*14; Dixon 21, 30; S. D. Stats. 1905, p. 201, sees. v. Schermeier, 110 Cal. 582, 42 Pac. 31, 47; Stats. 1907, c. 180, sec. 2; 1091; Smith v. Corbit, 116 Cal. 587, and water codes generally. Cf. Cal. 48 Pac. 725 ; Williams v. Harter, 121 . Civ. Code, sec. 662. Cal. 47, 53 Pac. 405 ; Pendola v. See, also, cases below cited. See, Ramm, 138 Cal. 517, 71 Pac. 624; also, as to rights of consumers from Senior v. Anderson, 138 Cal. 716, 72 distributing agencies, infra, sees. 1324 Pac. 349; Pogue v. Collins, 146, Cal. et seq., 1338. 435, 80 Pac. 623; Nevada etc. Co. n Quirk v. Falk, 47 Cal. 453, 2 v. Bennett, 30 Or. 59, 60 Am. St. Rep. Morr. Min. Rep. 19; Mitchell v. Am- 588 (3de 121 Cal - 47 \ 5 * 7 Q n ' \ 53 Pac. 405; Fudickar v. East River- A., N. S, 359. Compare as to after- si(Je ^ ^ m ^ pac acquired property Mitchell v. Canal Q2 Lower > CQ R . ' g c Co., 75 Cal 464 17 Pac 246; Farm 6Q ^ 40g R lds v -^ 51 ' etc. Co. v Alta etc. Co 28 Colo 408 c } ^ g fa ' m R 65 Pac. 22 ; Bear Lake Co. v. Garland, 164 U. S. 1 17 Sup. Ct. Rep. 7, 41 L. 21 Jacob v - Lorenz, 98 Cal. 332, 33 Ed. 327. Pac - 119 - is Smith v. Logan, 18 Nev. 149, 1 22 Supra, see. 456. Pac. 678 ; Alta etc. Co. v. Hancock, 85 555 Ch. 24. CONTEACTS CONVEYANCES. (3ded.) 595 barred from using the water upon other land, but only. upon the land first mentioned. 23 D. PAKOL SALE. (3d ed.) 555. Parol Sale of Possessory Rights on the Public Domain. In the treatment of parol sale of water-rights, there is a peculi- arity 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. 24 But the matter to which we refer is independent of that. The matter brings us back to the origin of the doctrine of appropriation, as a possessory right on the public domain, and thereby back to the opening chapters of Part II of this book. It was, in pioneer times, declared upon strict legal theory that the California pioneers were trespassers upon public lands. The law did not become settled to the contrary until the act of 1866, when the United States as landowner then "acknowledged and confirmed" their rights. Until that time, the theory that they were mere trespassers showed itself in many forms, such as that, the estate not being one of freehold, a justice of the peace had (it was contended) jurisdiction over mining claims; also that dower did not exist therein, not being a freehold, and other similar contentions, concerning which the reader may consult other books. 25 In one form, especially, this took strong hold in the early decisions, to wit, that a transfer of a mining claim operated as a surrender 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. 1 The supreme court of the United States affirmed this view. 2 And it crept also into early water decisions, 3 and from reference to them, has partly 23 Duckworth v. Watsonville Co., Rep. 323. And later again in Black 158 Cal. 206, 110 Pac. 927, sed qu. y Elkhorn M. Co., 163 U. S. 445, 16 24 Infra, next section. p T 25 Yale on Mining Claims and Su P- Ct - **P- 1101 > 41 L - Ed - 221 > 18 Water Rights, and Lindley on Mines. Morr. Min. Rep. 375, declared this 1 Table Mt. M. C. v. Stranahan, 20 principle to be correct. Cal. 198, 9 Morr. Min. Rep. 457. 2 Union etc. Co. v. Taylor, 100 U. 3 Smith v - O'Hara, and Chiatovich 8. 39, 25 L. Ed. 541, 5 Morr. Min. v. Davis, infra. 596 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 555 come down to the present day as a rudimentary survival, long after the theory on which it rested ceased to be operative. For the "trespasser" theory from the start had strong opposi- tion in the "free development" theory of a grant to the appro- priator from the United States a full title of the dignity of a fee, and equivalent to other freehold interests in realty ; the theory which finally prevailed and became law under the act of 1866. 4 Consequently it is, as already shown, now held that transfers of water-rights are ineffectual as transfers without a writing, within the statute of frauds. 5 To-day a sale equivalent to a sale of any- thing else, operating as a transmission of a right, not as the crea- tion of a new one, is recognized if in writing. 8 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 early theory, as concerns water-rights at least, remains as a survival in this matter of parol sales. A water-right, then, may be transferred by a parol sale, pro- vided the grantee enters into possession. 7 The same result will be accomplished by a faulty deed. 8 The rights of the grantee, however, are different from those under a true sale, in writing. He does not acquire 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 date of the parol sale to assert priority in their favor as against the grantee. 9 The California court says: "The objection made by defendant is, that plaintiffs 4 Supra, sees. 89, 92 et seq. williger, 144 Cal. 456, 77 Pac. 1034; 5 The rule as to sales of mining Chiatovich v. Davis, 17 Nev. 133, 28 claims is now also the same. Costigan Pac. 239; Salina etc. Co. v. Salina on Mining Law, pp. 497, 498. etc. Co., 7 Utah, 456, 27 Pac. 578; 6 McDonald v. Askew, 29 Cal. 200, Union Mill & Min. Co. v. Dangberg, 1 Morr. Min. Rep. 660. As to water- 81 Fed. 73, citing cases; Low v. rights, cases already cited, and com- Schaffer, 24 Or. 239, 33- Pac. 678; pare California Civil Code, section South Tule etc. Co. v. King, 144 Cal. 1411, "successor in interest." As to 450, 77 Pac. 1032. See Smith v. mining claims, Lindley on Mines, sec- Green, 109 Cal. 235, 41 Pac. 1022; tion 642. Bowen v. Webb (1908), 37 Mont. 479, 7 Smith v. O'Hara, 43 Cal. 371, 1 97 Pac. 839; Gould on Waters, sec. Morr. Min. Rep, 671; Griseza v. Ter- 234; Pomeroy on Riparian Rights, williger, 144 Cal. 456, 77 Pac. 1034. sees. 58, 89 ; Kinney on Irrigation, sec. 8 Barkley v. Tieleke, 2 Mont. 59, 4 253. See, also, supra, sec. 390, use of Morr. Min. Rep. 666. abandoned ditches. See Kan. Gen. 9 Smith v. O'Hara, 43 Cal. 371, 1 Laws, 1909, sec. 4436. Moxr. Min. Rep. 671; Griseza v. Ter- 555 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 597 could not prove title by a parol sale, the interest conveyed being realty. Plaintiffs answer that the evidence was not offered to prove title, but as declarations against interest and as showing abandonment, to defeat defendant's alleged title, and that the court did not admit the evidence to prove title. Mr. Kinney states the doctrine to be, that the right to the use of the water acquired by prior appropriation, and the structure through which the diversion is effected, must be conveyed by a written instru- ment, as in the case of real property, and that a verbal sale is nugatory.' 10 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. 11 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, nonuse of them after completion and the like. The general doctrine concerning the effect of aban- donment 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 appro- priator 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 possible result is an immediate and complete abandon- ment. ' 12 It is not necessary, we think, to invoke the rule as to an executed parol contract such as arose in Flickinger v. Shaw, 13 nor to pass upon the applicability of the principle there enun- ciated to the present case. The evidence clearly w r as admissible to show abandonment, 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 support of her claim. It was competent for plaintiffs to show that long before defendant's deed, and con- tinuously for many years, he had treated his right as abandoned, 10 Citing cases. 13 87 Cal. 126, 22 Am. St. Rep. 234, 11 Kinney on Irrigation, sees. 253, 25 Pac. 268, 11 L. R. A. 134. See 255, 264. next section. 12 Citing Pomeroy on Water Rights, sees. 96, 97. 598 (3d ed) Pt. III. THE LAW OF PRIOR APPROPRIATION. 555 and his verbal sale was admissible as tending to establish this fact. The sale conferred no title upon Musgrave, but the subse- quent use by him and his associates and their successors of all the water was an appropriation of whatever water Terwilliger was entitled to prior to the sale." 14 This principle that the grantee on a parol sale acquires a new right as an appropriator by actual diversion, but that it operates by way of abandonment, forfeiting priority, seems in force in California. But in Montana and Oregon it is losing ground. There the courts have refused to apply it to the ease 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 parol, and the parol sale will carry the water-right as an appurtenance, preserving prior- ity. 15 In one Montana case 16 the court says: "We are satisfied that a verbal transferee of a settler's claim and water-right ap- purtenant 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 him- self of his predecessor's priority." In this case, Barkley v. Tieleke 17 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 Pomeroy, 18 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. In Wyoming, while at first disapproved, 13 the principle of the rule has been reasserted in another connec- tion. 20 A recent Oregon case says it is unable to see any reason for the rule, and the usual view to-day is that absence of a writing cannot be raised by strangers to the sale in any event. 21 14 Griseza v. Terwilliger, 144 Gal. 17 Cited supra. 456, 77 Pac. 1034. See, also, Duck- 18 Sees. 58, 89, 96, 97. worth v. Watsonville Co., 158 Cal. 206, 19 Whalon v. North Platte etc. Co., 110 Pac. 927, discussed supra, sec. 246. 11 Wyo. 313, 71 Pac. 995 ; Johnston 15 McDonald v. Lannen, 19 Mont. v. Little Horse Co., 13 Wyo. 208, 110 78, 47 Pac. 648 ; Wood v. Lowney, 20 Am. St. Rep. 986, 79 Pac. 22, 70 L. Mont. 273, 50 Pac. 794 ; Hindman v. R. A. 342. Rizor, 21 Or. 112, 27 Pae. 13 (citing 20 Supra, sec. 509, restricting Oregon cases) ; Turner v. Cole, 31 Or. changes of use. 154, 49 Pac. 972; Watts v. Spencer, 21 Watts v. Spencer, 51 Or. 262, 94 51 Or. 262, 94 Pac. 39. Pac. 39. Supra, sec. 542. 16 McDonald v. Lannen, supra. See, "The right of a person claiming an also, Featherman v. Hennessey appropriation of water cannot be (Mont.), 113 Pae. 751. tacked to that of a mere squatter, who, 555 Ch. 24. CONTRACTS CONVEYANCES. (3ded.) 599 The reasoning on which this rule is based would lead to the harsh result that a parol sale or a faulty deed endangers the rights of the grantor, by working an abandonment 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 the water-right), 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 grantee, the grantor himself could now claim only as an appro- priator 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, depending on the success of the whole plan of which it was a part. This would be supported by the decision in McGuire v. Brown, 22 where an owner abandoned an old ditch and used the water through 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 necessarily an abandonment of the right to use it in the old one. However, in Griseza v. Terwilliger, 23 it is said that a parol sale is an unequivocal sign of relinquishment, and works ipso facto as an abandonment. The truth is, that the rule is but a curious survival of the old pioneer law before possessory water-rights on the public domain came to be (as to-day they are) treated as freehold estates. It properly has no ground for existence to-day. 24 while he may have irrigated the land, 22 106 Cal. 660, 39 Pac. 1069, 30 has abandoned it (Low v. Shaffer, 24 L. E. A. 384. Or. 239, 33 Pac. 678) ; but a squatter 23 144 Cal. 456, 77 Pac. 1034, cit- upon public lands may, even "by parol, ing Pomeroy on Riparian Rights, sec. transfer his claim and interest, what- 89. ever it may be in this respect, to an- 24 In Liggins v. Inge, 7 Bing. other, and the rights of the subsequent 692, 5 M. & P. 712, the law of ap- purchaser and of his successors in in- propriation of water was regarded as terest, if asserted under the doctrine the law of England, and it was laid of prior appropriation, relate back to down that a sale by an appropriator the date of the first appropriation with passed no title, but only extinguished whom there may be a privity of his own claim, as an abandonment, and estate." Hough v. Porter. 51 Or. 318, hence was not within the statute of 95 Pac. 732, 98 Pac. 1083, 102 Pac. frauds. But the case was soon re- 728. pudiated both as to its theory of Eng- 600 (3d etL) Pt. III. THE LAW OF PRIOR APPROPRIATION. 556 (3d ed.) 556. Parol Sales and Licenses in Equity. Water and ditch rights being real property, interests therein can be conveyed or given only by an instrument in writing. Parol sales or licenses are expressly made void or invalid by the statute of frauds. But the requirement of a writing is at best a mere formality which, in practical affairs, men often disregard, and proceed in unwritten transactions until so involved therein that to permit the statute alone to control would work a clear fraud on one by allowing the other to be enriched by what he received under the bargain, while escaping from his own obligation under cover of the statute. To prevent the statute working such frauds, when passed to prevent fraud, courts of equity hold the defaulting party as a constructive trustee, and grant specific performance of parol contracts and sales regarding water-rights where one party has partly performed, taken possession, made improve- v ments, incurred expense and expended his energy on the faith of the parol understanding. 25 One recent case 1 says: "Water-rights are classed as real property, and hence, under the general rule, any agreement relating thereto must be in writing. 2 But in, the case at bar the agreement was acted upon by placing a measur- ing-box in the stream, and actually dividing the water, and by lish water law and its theory of parol that case to have been too uncertain sale, and has come in this latter regard to enforce.) See, also, cases below to be upheld only on the principles of cited regarding parol licenses, equity, in the next section, regarding Colorado. Yunker v. Nichols, 1 executed parol license. Colo. 551, 8 Morr. Min. Rep. 64; 25 California,. Flickinger v. Shaw, Schilling v. Rominger, 4 Colo. 104; 87 Cal. 126, 22 Am. St. Rep. 234, 25 McLure v. Koen, 25 Colo. 284, 53 Pac. Pac. 268, 11 L. R. A. 134; Blanken- 1053 ; Parke v. Parke (1909), 45 Colo, ship v. Whaley, 124 Cal. 300, 57 Pac. 347, 101 p ac . 403, at 406, saying: 79; Churchill v. Russell (1905), 148 "Oral agreements concerning priorities Cal. 1, 82 Pac. 440 ; Dorris v. Sullivan, an( j t i t i e to water-rights, followed with 90 Cal. 279, 27 Pac. 216; Bree v. j ts change of possession and applica- Wheeler, 4 Cal. App. 109, 87 Pac. 255; t ion by the claimant, have heretofore Bashore v. Mooney, 4 Cal. App. 276, b een held valid by this court; also 87 Pac. 553 (citing, also, Griseza v. that part performance will take it out Terwilliger, 144 Cal. 462, 77 Pac. 1034, O f the statute of frauds, and equity and Bates v. Babcock, 95 Cal. 486, 29 w ju enforce the right thus acquired." Am St Rep 133, 30 Pac. 605, 16 L. O n* on.-Coffman v. Robbins, 8 Or. R. A. 745. A parol contract to convey 27g g - Morr _ Min R 131 Co ' mbs y _ and with an easement over remaining gla ^ 19 Or 99 26 Pac. 6 ' 61 Wattg land for a pipe-line, being executed, v g pen ^ er 51 O r. 262, 94 Pac! 39. gives the grantee an equitable title ' to the easement. Rubio Canyon W. 1 Bree v. Wheeler, 4 Cal. App. 109, Co. v. Everett (1908), 154 Cal. 29, 96 87 Pac. 255. Pac. 811. (But see German etc. Soc. 2 Citing Code Civ. Proc., sees. 1971, v. McLellan (1908), 154 Cal. 710, 99 1973; Hayes v. Fine, 91 Cal. 398, 27 Pac. 194, holding the parol reserva- Pac. 772; Blankenship v. Whaley, 124 tion of a spring on the sale of land in Cal. 304, 57 Pac. 79. 556 Ch. 24. CONTRACTS CONVEYANCES. (3d ed.) 601 mutual consent of the parties each was placed in possession of one-half thereof. To complete the transfer nothing remained to be done except the execution of a conveyance, conveying a proper proportion of the water to each. Each had a perfect equity, entitling him to a deed from the other. When such is the case, a court of equity, in accordance with its familiar rules, consider- ing that as done which ought to be done, will protect the right obtained as readily and as fully as a legal title." And it is held in another case that the parol grantee can enjoin a stranger from diverting the water. 3 Upon the same principle, parol licenses to take water or build a ditch, being intended to be permanent, become irrevocable in equity after the licensee has acted upon the same, built his ditch or other works, and incurred large expense. 4 For example, "Go ahead. The more ditches you build, the better it will suit me," was held, when acted upon, to be irrevocable. 5 When thus irrev- ocable, it is not affected by subsequent conveyance by the licensor to a third person who has notice, express or implied, of the exist- ence of the irrevocable right. 6 At the same time, a parol license is revocable until thus executed, and is revoked when the licensor obstructs it 7 or by the licensor's death, 8 or by a conveyance by 3 Watts v. Spencer, 51 Or. 262, 94 amounts to a consent and parol license Pac. 39. which is irrevocable when executed. 4 Stoner v. Zucker, 148 Cal. 516, 113 The court said: "The principal conten- Am. St. Rep. 301, 83 Pac. 808, 7 Ann. tion upon appeal is that this court Cas. 704; Miller v. Kern etc. Co. should recede from the view which is (1909), 154 Cal. 785, 99 Pae. 179; adopted and expressed in Stoner v. Davis v. Martin, 157 Cal. 657, 108 Pac. Zucker, 148 Cal. 516, 113 Am. St. Rep. 866; Coventon v. Seufert, 23 Or. 301, 83 Pac. 808, 7 Ann. Cas. 704, 548, 32 Pac. 508 ; Maple etc. Co. and should adopt the contrary view v. Marshall, 27 Utah, 215, 75 Pac. 369 ; that a parol license, regardless of Jensen v. Hunter (Cal.), 41 Pac. 14; its nature, is always revocable at the Lavery v. Arnold, 36 Or. 84, 57 Pac. will of the licensor. This question wag 906, 58 Pac. 524, citing cases; Me- duly considered in Stoner v. Zucker, Phee v. Kelsey, 44 Or. 193, 74 Pac. supra, the conflict in authority was 401 ; 75 Pac. 713; Shaw v. Proffitt recognized, and the conclusion there (Or. 1910), 110 Pac. 1092; Munsch v. expressed deliberately adopted. We Stelter, 109 Minn. 403, 134 Am. St. perceive no reason for receding from Rep. 785, 124 N. W. 14; Arterburn v. that conclusion." Miller v. Kern Co. Beard, 86 Neb. 733, 126 N. W. 379. (1909), 154 Cal. 785, 99 Pac. 179. In one case it was held that where a 5 Shaw v. Proffit (Or.), 110 Pac. man's agents accompany another and 1092, holding it to become "a vested his employees to a reservoir and co- easement." operate and assist in laying out pipe- 6 Cases supra. lines and surveying and locating a 7 Prentice v. McKay, 38 Mont. 114, canal for conducting water over the 98 Pac. 1081, citing Great Falls etc. former's land, and the latter conducts Co. v. Great Northern Ry. Co., 21 the work openly, with the former's Mont. 487, 54 Pac. 963. knowledge, the former standing by and 8 Jensen v. Hunter (Cal.), 41 Pac. making no objection, but encouraging 17. the latter - the former's conduct 602 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 557 the licensor to some other party, 9 nor will it, even when executed, be irrevocable if not intended so, but only intended to be tempo- rary and revocable. 10 These cases enforcing executed parol licenses are based upon the same principles as specific performance, though sometimes called " estoppel." 11 (3d ed.) 557. Conclusion. The freedom of disposition of appropria- tions shows the possessory origin of the law of appropriation; a branch of the law of possessory rights on the public domain. Possession of the stream was the foundation of the right. Actual diversion (the taking of possession) created the right; capacity of ditch (the amount in possession) measured the right; injunc- tions were granted without present damage ; the appropriation was independent of ownership or possession of any land and independent of the place of use or mode of enjoyment and change did not forfeit priority; and, as to contracts or sales, "it could be transferred like other property" as a separate, individual thing. Much of this is still law to-day. 12 But the very late "water code" legislation, and the tendency of late court decisions, is, as elsewhere considered, 13 to treat the right as one to a specific initial use (such as the requirements of a specific piece of land) rather than to possession of a stream or any specific quantity or flow of water. Hence the innovations intro- duced by the statutes above referred to; and consequently, also, the reader must be prepared, as time goes on, to find the decisions departing from the (at present) established rules presented in this chapter. 9 Mclntyre v. Harty, 236 111. 629, pellant, and that respondents refused 86 N. E. 581, though this case seems to either to sell or convey a permanent lay down the same revocability even right. Such right or license was rev- after the license was acted upon. ocable at the will of respondents, and 10 Lanham v. Wenatchee Co., 48 could not be enforced thereafter by Wash. 337, 93 Pac. 522; Mclntyre v. the appellant." Weidensteiner v. Mally Harty, 236 111. 629, 86 N. E. 581; (1909), 55 Wash. 79, 104 Pac. 143, Davis v. Martin, 157 Cal. 657, 108 citing Hathaway v. Yakima Water etc. Pac. 866; Lewis v. Patton (Mont.), Co., 14 Wash. 469, 53 Am. St. Rep. 113 Pac. 745. See, also, supra, sec. 874, 44 Pac. 869; Prentice v. McKay, 56, and infra, see. 593. 38 Mont. 114, 98 Pac. 1081. "The evidence in the case, however, n As to which, see further infra, is clear that the right to construct the sees. 593, 655. ditch and use the water from Grouse 12 See cross-references supra, sec. Creek was a mere permissive right, 139. granted by the respondents to the ap- 13 Supra, sec. 139. 558-565. (Blank numbers.) 566 Ch. 25. LOSS OF EIGHT. (3d ed.) 603 CHAPTER 25. LOSS OF RIGHT. A. ABANDONMENT. 566. Introductory. 567. Abandonment is voluntary and a question of fact. 568. Same (examples). 569. Nonuser merely evidence of intention to abandon. 570. Same. 571. Discharged waste and recapture. 572. Parol sale or faulty deed. 573. Failure of diligence in construction work. B. FORFEITURE. 574. Failure to comply with statute in making an appropriation. 575. Smith v. Hawkins. 576. Forfeiture under statutes. 577. Transitionary state of the law. 578. Conclusions regarding abandonment and forfeiture. C. ADVERSE USE OR PRESCRIPTION. 579. General. 580. Effect of adverse use or prescription. 581. Extent. 582. Essentials. 583. Continuous. 584. Exclusive; uninterrupted. 585. Open; notorious. 586. Claim of right; color of title. 587. Hostile to owner; permission. 588. Invasion of right. 589. Chance to prevent. 590. Payment of taxes. 591. Against the United States or the State. 592. Conclusion. D. ESTOPPEL. 593. Elements of estoppel in pats. 594. Estoppel by silence. 595. Same. 596-603. (Blank numbers.) (3d ed.) . 566. Water-rights of appropriation may, it is true, continue indefinitely, but they may likewise come to an end in several 604 (3ded.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 567 ways, viz., by abandonment, forfeiture, adverse use, estoppel or eminent domain proceedings. A. ABANDONMENT. (3d ed.) 567. Abandonment is Voluntary and a Question of Fact. As the law of appropriation arose as a branch of the law of pos- sessory rights on the public domain, the right, upon its original basis, lasts during the retention of possession of the stream with a Itona fide intention not to relinquish it. The retention of pos- session with a bona fide intention is a condition upon retention of the right ; and the relinquishment of possession with intent to abandon constitutes an abandonment of the right. To constitute abandonment, properly speaking, there must be a concurrence of act and intent, the relinquishment of possession, and the intent not to resume it for a beneficial use, so that aban- donment is always voluntary, and a question of fact. 1 1 Arizona. Gould v. Marieopa etc. Co., 8 Ariz. 429, 76 Pac. 598; Marlar v. Maricopa etc. Co. (Ariz.), 76 Pac. 1125; Salt River etc. Co. v. Slosser (Ariz.), 76 Pac. 1125; Brockman v. Grand Canal Co., 8 Ariz. 451, 76 Pac. 602; Patterson v. Ryan (Ariz.), 108 Pac. 1118. California,. Wood v. Etiwanda W. Co., 147 Gal. 233, 81 Pac. 512; Utt v. Frey, 106 Cal. 397, 39 Pac. 807, quoted infra; Integral Quicksilver M. Co. Vv Altoona M. Co., 75 Fed. 380, 21 C. C. A. 409; Hewitt v. Story, 64 Fed. 510, 12 C. C. A. 250, 30 L. R. A. 265, and cases infra. Colorado. People v. Farmers' etc. Co., 25 Colo. 202, 54 Pac. 626; Platte etc. Co. v. Central etc. Co., 32 Colo. 102, 75 Pac. 391; Greer v. Heiser, 16 Colo. 306, 26 Pac. 770; Beaver Brook Co. v. St. Vrain Co., 6 Colo. App. 130, 40 Pac. 1066; New Mercer Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989 ; Putman v. Curtis, 7 Colo. App. 437, 43 Pac. 1056; Nichols v. Lantz, 9 Colo. App. 1. 47 Pac. 70; Hall v. Lincoln, 10 Colo. App. 360, 50 Pac. 1047 ; North Am. Exploration Co. v. Adams (Colo.), 104 Fed. 404, 45 C. C. A. 185; Lower Latham D. Co. v. Louden Irr. Co., 27 Colo. 267, 83 Am. St. Rep. 80, 60 Pac. 629; Hector M: Co. v. Valley View M. Co., 28 Colo. 315, 64 Pac. 205; Butterfield v. O'Neill, 19 Colo. App. 7, 72 Pae. 807; Boulder etc. Co. v. Leggett etc. Co., 36 Colo. 455, 86 Pac. 101; Buckers etc. Co. v. Farmers' etc. Co., 31 Colo. 62, 72 Pac. 49; Cooper v. Shannon, 36 Colo. 98, 118 Am. St. Rep. 95, 85 Pac. 175; O'Brien v. King, 41 Colo. 487, 92 Pac. 945; Alamosa Co. v. Nelson, 42 Colo. 140, 93 Pac. 1113. Idaho. Welch v. Garrett, 5 Idaho, 639, 51 Pac. 405, 19 Morr. Min. Rep. 193; Ada Irr. Co. v. Farmers' Canal Co., 5 Idaho, 793, 51 Pac. 990, 40 L. R. A. 485; Last Chance etc. Co. v. Bunker Hill etc. Co., 49 Fed. 430, 17 Morr. Min. Rep. 449. Montana. Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059; Atchison v. Peterson, 1 Mont. 561; Barkley v. Tieleke, 2 Mont. 61, 4 Morr. Min. Rep. 666; Kleinschmidt v. Greiser, 14 Mont. 484, 43 Am. St. Rep. 652, 37 Pac. 5; Middle Cr. Co. v. Henry, 15 Mont. 558, 39 Pac. 1054 ; Goon v. Proctor, 27 Mont. 526, 71 Pac. 1003; Hays v. Buz- ard, 31 Mont. 74, 77 Pac. 423 ; Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959, Featherman v. Hennessey (Mont.), 113 Pac. 751. Nebraska. Farmers' Irr. Dist. v. Frank, 72 Neb. 136, 100 N. W. 286. Nevada. Schutz v. Sweeney, 19 Nev. 359, 3 Am. St. Rep. 888, 11 Pac. 253; Lobdell v. Hall, 3 Nev. 507. Oregon. Dodge v. Marden, 7 Or. 456, 1 Morr. Min. Rep. 63; Moss v. Rose, 27 Or. 595, 50 Am. St. Rep. 743, 567 Ch. 25. LOSS OF EIGHT. (3ded.) 605 It has been said: "To constitute an abandonment of a water- right, there must be a concurrence of the intention to abandon it and an actual failure in its use." 2 And again: "Abandonment, like appropriation, is a question of intent, and to be determined with reference to the conduct of the parties. The intent to aban- don and an actual relinquishment must concur, for courts will not lightly decree an abandonment of a property so valuable as that of water in an irrigated region." 3 In another case it is said: "As abandonment is a matter of intention, it is peculiarly within the province of a trial court to determine from all the facts and circumstances of each particular case whether abandon- ment has or has not taken place." 4 The declarations of the party abandoning, as to his intention, are evidence, 5 and he may himself testify as to what his intention was, since his intention is in issue, 6 and evidence of statements out of court may be given in evidence. 7 The party claiming 41 Pac. 666; Wimer v. Simmons, 27 Or. 1, 50 Am. St. Rep. 685, 39 Pac. 6; Turner v. Cole, 31 Or. 154, 49 Pac. 972; Watts v. Spencer, 51 Or. 262, 94 Pac. 39. South Dakota. Edgemont Co. v. N. S. Tubbs Co., 2 S. D. 142, 115 N. W. 1130. See Stats. 1907, c. 180. Utah. Stalling v. Ferrin, 7 Utah, 477, 27 Pac. 686; Herriman Irr. Co. v. Keel, 25 Utah, 96, 69 Pac. 719; Promontory etc. Co. v. Argile, 28 Utah, 398, 79 Pac. 47. Washington. Miller v. Wheeler (1909), 54 Wash. 429, 103 Pac. 641, 23 L. R. A., N. S., 1065. 2 Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. 3 Miller v. Wheeler, 54 Wash. 429, 103 Pac. 641, 23 L. R. A., N. S., 1065. 4 Cooper v. Shannon, 36 Colo. 98, 118 Am. St. Rep. 95, 85 Pac. 175. Facts held to show abandonment. Brockman v. Grand Canal Co., 8 Ariz. 451, 76 Pac. 602; Nichols v. Lantz, 9 Colo. App. 1, 47 Pac. 70; Oviatt v. Big Four Co., 39 Or. 118, 65 Pac. 811; Lamborn v. Bell, 18 Colo. 346, 32 Pac. 989, 20 L. R. A. 241; Ruther- ford v. Lucerne Canal & P. Co., 12 Wyo. 299, 75 Pac. 445; Ophir Min- ing Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550, 4 Morr. Mm. Rep. 640; Kirman v. Hunnewill, 93 Cal. 519, 29 Pac. 124; Dorr v. Hammond, 7 Colo. 79, 1 Pac. 693; Smith v. Green, 109 Cal. 228, 41 Pac. 1022; Platte Water Co. v. Northern etc. Co., 12 Colo. 525, 21 Pac. 711. Facts held not to show abandon- ment. Utt v. Frey, 106 Cal. 392, 39 Pac. 807; Hays v. Buzzard, 31 Mont. 74, 77 Pac. 423; Greer v. Heiser, 16 Colo. 396, 26 Pac. 770; Putnam v. Curtis, 7 Colo. App. 437, 43 Pac. 1056 ; Welch v. Garrett, 5 Idaho, 639, 51 Pac. 405, 19 Morr. Min. Rep. 193; Promontory Co. v. Argile, 28 Utah, 398, 79 Pac. 47; Farmers' etc. Co. v. New Hampshire etc. Co., 40 Colo. 467, 92 Pac. 290; Sullivan v. Jones (Ariz.), 108 Pac. 476 (three years' nonuser). 5 Boulder etc. Co. v. Leggett etc. Co., 36 Colo. 455, 86 Pac. 101; Dodge v. Marden, 7 Or. 457, 1 Morr. Min. Rep. 63; Central Trust Co. v. Culver, 35 Colo. 93, 83 Pac. 1065. 6 Boulder etc. Co. v. Leggett etc. Co., 36 Colo. 455,- 86 Pac. 101, holding that on an issue of defendant's aban- donment of certain water-rights con- ferred by a decree, evidence as to whether defendant's officers had any intention or purpose of abandoning the rights so conferred was admissible. 7 Ibid. ; Central etc. Co. v. Culver, 35 Colo. 93, 83 Pac. 1064. 606 (3ded.) Pt. III. THE LAW OF PEIOR APPEOPEIATION. 567 there is an abandonment has the burden of proof, which must be clear and definite to a preponderance of evidence. 8 The rule of abandonment applies as well to rights or priorities decreed in proceedings adjudicating rights as to rights not so decreed, 9 so far as the abandonment rests on new matter subse- quent to the decree. But the decree is res adjudicata upon any abandonment prior thereto. 10 The question of abandonment can- not be determined in a suit under the special Colorado procedure for changing the point of diversion. 11 An abandonment of a ditch, however, does not necessarily in- volve an abandonment of the water-right. 12 The distinction be- tween the water-right and the ditch or other appliances must be borne in mind. 13 It has been held that abandonment is not complete until an- other relocates, so that a resumption of use may be made at any time before others intervene, 14 though not after others intervene. 15 Abandonment may be of part, as well as the whole, of an ap- propriation. 16 Abandonment must be made by the owner, without being pressed by any duty, necessity, or utility to himself, but simply because he desires no longer to possess the thing, and further, it must be made without any desire that any other person shall 8 Hall v. Lincoln, 10 Colo. App. 360, 12 New Mercer Ditch Co. v. Arm- 50 Pac. 1047; Beaver etc. Co. v. St. strong, 21 Colo. 357, 40 Pac. 989; Vrain etc. Co., 6 Colo. App. 130, 40 Kleinschmidt v. Greiser, 14 Mont. Pac. 1066; Platte Valley Irr. Co. v. 484, 43 Am. St. Rep. 652, 37 Pac. 5; Central Trust Co., 32 Colo. 102, 75 Wood v. Etiwanda Water Co., 147 Cal. Pac. 391; Putnam v. Curtis, 7 Colo. 233, 81 Pac. 512; McGuire v. Brown, App. 437, 43 Pac. 1056; O'Brien v. 106 Cal. 660, 39 Pac. 1060, 30 L. E. A. King, 41 Colo. 487, 92 Pac. 945; Ala- 384; Gould v. Maricopa etc. Co., 8 mosa Co. v. Nelson, 42 Colo. 140, 93 Ariz. 429, 76 Pac. 598; Marlar v. Pac. 1113; Miller v. Wheeler (1909), Maricopa etc. Co. (Ariz.), 76 Pac. 54 Wash. 429, 103 Pac. 641, 23 L. E. 1125; Salt River etc. Co. v. Slosser A., N. S., 1065; McFarland v. Alaska (Ariz.), 76 Pac. 1125; Salt Eiver etc. etc. Co., 3 Alaska, 308. Co. v. Van Fossen (Ariz.), 76 Pac. 9 New Mercer etc. Co. v. Arm- 1125. strong, 21 Colo. 357, 40 Pac. 989; 13 Supra,.sec. 456. Boulder etc Co v Leggett etc Co 14 Beaver fe Co g y . 36 Colo 455, 86 Pac 101; Alamosa c 6 Cok) A 130 4Q p&c 1Q66 CO. V. .NelSOn. 42 COlO. 140. yd *ac. m i ., , T - a -\r L oor in -D 1121; Dracha v. Isola (Colo.), 109 ^cker v " Jones > 8 Mont 225 ' 19 Pac ' Pac 748 O'-i. 10 O'Brien v. King, 41 Colo. 487, 92 15 Eutherford etc. Co. v. Lucerne Pac 945 etc. Co., 12 Wyo. 299, 75 Pac. 445. Cf. 11 Wadsworth D. Co. v. Brown, 39 Lindley on Mines, sec. . Colo. 57, 88 Pac. 1060; Lower Latham i Alamosa Co. v. Nelson, 42 Colo, etc. Co. v. Bijou etc. Co., 41 Colo. 212, 140, 93 Pac. 1113. 93 Pac. 483. 563 Ch. 25. LOSS OF EIGHT. (3d ed.) 607 acquire the same; for, if it were made for a consideration, it would be a sale or barter, and if without consideration, but with an intention that some other person should become the possessor, it would be a gift. Where for any reason a transaction fails as a sale, it cannot be converted into abandonment. 17 There is no such thing as abandonment to particular persons, or for a considera- tion. 18 The right once abandoned, it cannot be revived by a sale, and the sale passes nothing. 19 (3d ed.) 568. Same. A sale of the land on which the water is used, without passing the water-right, is not necessarily an abandon- ment of the water-right, 20 nor is an exhaustion of the mine for which the water was originally used, 21 nor is the posting of a second notice of appropriation necessarily an abandonment of rights under a former notice. 22 These are all evidence, but not conclusive. On the other hand, an abandonment is shown where the ditch was filled in and sown over with grass ; ^ also where the land irrigated is abandoned and nonuser of the water ensues for a long time 1 after which a later acquisition of other land does not revive the right against interveners. 2 On abandonment of oil locations, the right to the wells thereon bored for oil ceases also, though water flows from them, there being no intent to appropriate the water to a beneficial use. 3 A typical case of abandonment is where the appropriators' purpose has been ac- complished and they disperse, the mine for which they used the water being worked out, the ditches decayed, and two years go by without doing anything. 4 if But see supra, see. 555. See Kan. 20 Dodge v. Marden, 7 Or. 457, 1 Gen. Laws, 1909, sec. 4436. Morr. Min. Rep. 63. 18 McLeran v. Benton, 43 Cal. 467; 21 Lowden v. Frey, 67 Cal. -474, 8 Middle Creek Co. v. Henry, 15 Mont. Pac. 31. 556, 39 Pac. 1054; Richardson v. Me- 22 Norman v. Corbley, 32 Mont. 195, Nulty, 24 Cal. 343, 1 Morr. Min. Rep. 79 Pac. 1059. See Hall v. Lincoln, 10 11; Stephens v. Mansfield, 11 Cal. 363; Colo. App. 360, 50 Pac. 1047, examin. Watts v. Spencer, 51 Or. 262, 94 Pac. ing evidence and holding no abandon- 39 ; Norman v. Corbley, 32 Mont. 195, ment. 79 Pac. 1059 ; Cache La Poudre Co. v. 23 Stalling v. Ferrin, 7 Utah, 477, Water Supply Co., 27 Colo. 532, 62 27 Pac. 686. Pac. 420; Last Chance Co. v. Bunker l Jackson .v. Indian etc. Co., 18 Hill Co., 49 Fed. 430. Idaho, 513, 110 Pac. 251. 19 Davis v. Gale, 32 Cal. 26, 91 Am. 2 Rutherford etc. Co. v. Lucerne Dec. 554, 4 Morr. Min. Rep. 604; etc. Co., 12 Wyo. 299, 75 Pac. 445. Kirman v. Hunnewill, 93 Cal. 519, 29 3 De Wolf skill v. Smith, 5 Cal. App. Pac. 124; Colorado etc. Co. v. Rocky T75, 89 Pac. 1001. Ford etc. Co., 3 Colo. App. 545, 34 4 Davis v. Gale, 32 Cal. 26. 91 Am. Pac. 580. Dec. 604, 4 Morr. Min. Rep. 604. For 608 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 509 Where a water-right and ditch were used for mining in the ' early days but long since discontinued, no right thereunder can be claimed by anyone at the present day. 5 One who uses the works of old-timers with whom he is not connected can claim nothing through such old appropriation; nor if connected with them in interest where their rights have been abandoned ; nor, in fact, where one uses even recent works of others, with whom he is not connected, can he claim to tack on to the priority thereof. One using abandoned works must stand or fall on his own acts, irrespective of the use in such works by a former owner. 6 The rights which once pertained to the old pioneer mining ditches have mostly been lost by abandonment long ago, though evidence of the ditches still remains. 7 (3d ed.) 569. Nonuser is Merely Evidence of Intention to Abandon. Under the doctrine of abandonment in its possessory origin, non- user was merely evidence of the intention that the relinquishment should be permanent. The right being viewed as one to possession of the flow, nonuse was not per se an abandonment but only evi- dence upon the question of intention. 8 The test was whether the nonuser was for an unreasonable time under the .circum- stances, so as to reasonably indicate a relinquishment of possession and an intent not to resume it for a beneficial purpose ; a simple question for the jury similar to the question of the use of reason- able care left to the jury in the law of negligence. Where the non- user is for an unreasonable time, taking all the surrounding cir- cumstances into consideration, there is an abandonment of the water-right; on the other hand, if it appears to be a reasonable similar cases where the ditch, etc., was Where a squatter on public land allowed to decay, see Dorr v. Ham- abandons both water and land, a new tnond, 7 Colo. 79, 1 Pac. 693 ; Sieber v. locator of the land is a new ap- "Frink, 7 Colo. 148, 2 Pac. 901; Goon propriator, and cannot -take the prior- V. Proctor, 27 Mont. 526, 71 Pac. ity of the original one, though he re- 1003; Noland v. Coon, 1 Alaska, 36; opens and repairs and uses the old Ison v. Nelson Min. Co., 47 Fed. 199. ditches. Head v. Hale, 38 Mont. 302, ~ 100 Pac. 222. The right of an ap- /ion^ er ?^ g r 7m %?*? e ina propriator of public water cannot be (1909), 45 Colo. 401, 102 Pac. 108. g^, to that a mere squatter? who 8 Supra, sees. 390, 555. has abandoned his land. Hough v. _ T , _. /-.nnnx i * n i Porter, 51 Or. 318, 95 Pac. 732, 98 n L ? V 0lm f,n n ( l? 9) i ' Pac. 1083, 102 Pac. 728. 449 104 Pac. 449; Sternberger v. 8 gee ^ ross . references supra sec . Seaton etc. Co., supra. -.on 569 Ch. 25. LOSS OF EIGHT. (3d ed.) 609 time, there is not; and what is a reasonable time is a question of fact for the jury. 9 If, at the time of acquiring the right, the water-right having been newly created by completion of the preparatory work, there is a failure for an unreasonable time under the circumstances 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 upon (under the facts of each case) what is an unreasonable delay; that is, what nonuser under the circumstances reasonably indicates the intent, in that case, not to apply the water to a useful purpose. This has been discussed at length in considering "future needs." 10 After application and use have begun, a nonuser thereafter owing to breakage of apparatus, during change of plans, or from other cause, is not necessarily an abandonment. Here again the rule of the cases generally is that no definite time is set. The nonuser being for a reasonable time under the circumstances of each case, there is no abandonment. Upon the facts involved, for example, a reasonable time has lasted for one year ; n three years ; 12 eleven years ; 13 fourteen years. 14 If work is stopped because the stream naturally ceases to flow (act of God) or be- cause of tunneling or other wrongful act of another person, there is no abandonment. 15 There is no abandonment where the non- use was during the administration of a decedent owner's estate; ie 9 Gross v. Jones (1909), 85 Neb. 77, "Absence from land wrongfully 127 N. W. 681. See, also, supra, sec. forced does not work a forfeiture of 383 (diligence), and sec. 483 (future any interest the owner may have needs). therein"; and citing Hoffman v. 10 Supra, sec. 483. Smyth, 47 Or. 573, 114 Am. St. Rep. 11 Land v. Johnston (1909), 156 938, 84 Pac. 80, 8 Ann. Gas. 678). Cal. 449, 104 Pac. 449. "The last seven years preceding the 12 Gassert v. Noyes, 18 Mont. 216, trial of the action had been exception- 44 Pac. 959; Sullivan v. Jones (Ariz.), ally 'dry,' and during them the flow of 108 Pac. 476. water had ceased earlier in the spring 13 North Am. Co. v. Adams (Colo,), than in former years. The fact that 104 Fed. 404, 45 C. C. A. 185, 21 during this period the plaintiffs- had Morr. Min. Rep. 65. not been able to get as much water as l* Wimer v. Simmons, 27 Or. 1, 50 theretofore did not destroy the con- Am. St. Rep. 685, 39 Pac. 6. tinuity of their use, nor deprive them 15 Santa Barbara v. Gould, 143 Cal. of the right to use the amount 421, 77 Pac. 151 ; Putnam v. Curtis, 7 formerly diverted in the event that Colo. App. 437, 43 Pac. 1056; Union the flow of the stream should again Min. Co. v. Dangberg, 81 Fed. 73 furnish such amount." Huffner v. (nonuser during litigation) ; Hough Sawday, 153 Cal. 86, 94 Pac. 424. v. Porter, 51 Or. 318, 95 Pac. 732, 98 16 Turner v. Cole, 31 Or. 154, 49 Pac. 1083, 102 Pac. 728 (saying: Pac. 971. Water Rights 39 610 (3ded.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 569 or during temporary shut-down of a mine, 17 or during bona fide efforts of a colonization company to induce immigration. 18 What is beneficial user has already been discussed. 19 But if the non- user is unreasonably continued, 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 an abandonment. 20 During the temporary cessation of use, others may use the water. 21 The rule concerning nonuser is thus summed up in Utt v. Frey : 22 "The right which is acquired to the use of water by ap- propriation may be lost by abandonment. To abandon such right is to relinquish possession thereof without 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 property vacant, so that it may be appropriated by the next comer, and the intention of not returning. 23 The mere intention to abandon, if not coupled with yielding up possession or a cessa- tion of user, is not sufficient; nor will the nonuser alone without an intention to abandon be held to amount to an abandonment. Abandonment is a question of fact to be determined by a jury or the court sitting as such. Yielding up possession and nonuser is evidence of abandonment, and under many circumstances sufficient to warrant the deduction of the ultimate fact of abandonment. But it may be rebutted by any evidence which shows that, not- withstanding such nonuser or want of possession, the owner did not intend to abandon." To the same effect it is said in another case 24 concerning an appropriator of water: "It is well settled that lapse of time does not of itself constitute an abandonment, and that it is only a circumstance for the jury to consider in determining whether there has been an abandonment. In other 17 Smith v. Hope etc. Co., 18 Mont. 21 Supra, sec. 481 et seq.; infra, 4-32, 45 Pac. 632; Featherman v. sec. 642. Hennessey (Mont.), 113 Pac. 751 22 106 Cal. 397, 38 Pac. 807. (flume broke in 1888 and mines shut 23 Citing Judson v. Malloy, 40 Cal. down until 1894, but some work con- 299; Bell v. Bed Rock etc. Co., 36 tinued more or less in the meantime, Cal. 214, 1 Morr. Min. Rep. 45; Moon and water was turned into the ditch v. Rollins, 36 Cal. 333, 95 Am. Dec. annually). 181; St. John v. Kidd, 26 Cal. 272, 4 18 Nevada etc. Co. v. Bennett, 30 Morr. Min. Rep. 404; Richardson v. Or. 59, 60 Am. St. Rep. 777, 45 "Pac. McNulty, 24 Cal. 345, 1 Morr. Min. 472. Rep. 11; Willson v. Cleveland, 30 Cal. 19 Supra, sees. 378, 481 et seq. 192. 20 Alamosa Co. v. Nelson, 42 Colo. 24 Valcalda v. Silver etc. Co., 86 140, 93 Pac. 1113, and cases cited Fed. 90, 29 C. C. A, 591, 19 Morr. suvra. Min. Rep. 233. 570 Ch. 25. LOSS OF RIGHT. (3d ed.) 611 words, the question is one of intent. Said the court in Waring v. Crow, 25 'The intention alone governs.' 1 In Moon v. Rollins a 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 neaessarily constitute an abandonment." 8 In a word, nonuser is not per se an abandonment. 4 It is, so far as concerns abandonment, only a sign that you "did not want the water any more" and meant to give it up, but may be rebutted by other evidence that you still meant to keep it, unless the nonuse lasted so unreasonably long as to be convincing of what your inten- tion had been when you stopped use. (3d ed.) 570. Same. Like the rule of reasonable care in the law of negligence, the rule of reasonable time here is indefinite. In cases where there is no evidence of importance bearing on the surrounding circumstances it would be difficult for the jury to say whether the nonuser was for an unreasonable time. It would be enough in such cases 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 nonuser, has failed to sustain the burden of proof, and failed to make out its 25 11 Cal. 369, 5 Morr. Min. Rep. 8 Mont. 389, 21 Pac. 22, 16 Morr. 204. Min. Rep. 1; Gassert v. Noyes, 18 1 Keane v. Cannovan, 21 Cal. 293, Mont. 216, 44 Pac. 959; Sloan v. 82 Am. Dec. 738; St. John v. Kidd, Glancy, 19 Mont. 70, 47 Pac. 334; 26 Cal. 272, 4 Morr. Min. Rep. 454. Smith v. Hope Mining Co., 18 Mont. 2 36 Cal. 337, 95 Am. Dec. 181. 432, 45 Pac. 632 ; Lobdell v. Hall, 3 3 "An easement acquired by deed is Nev. 507 ; Dodge v. Harden, 7 Or. not lost by mere nonuser." Walker v. 456, 1 Morr. Min. Rep. 63 ; Turner v. Lillingston, 137 Cal. 401, 70 Pac. 282. Cole, 31 Or. 154, 49 Pac. 972; Wimer 4 Such is the effect of most of the v. Simmons, 27 Or. 1, 50 Am. St. Rep. cases in the first section of this 685, 39 Pac. 6; Edgemont Co. v. chapter. We happen to have noted Tubbs Co., 22 S. D. 142, 115 N. W. here a few particularly: 1130; Gill v. Malan, 29 Utah, 431, 82 Utt v. Frey, 106 Cal. 397, 39 Pac. Pac. 471; Promontory Co. "v. Argile, 807; Senior v. Anderson, 115 Cal. 496, 28 Utah, 398, 97 Pac. 47; Sowles v. 47 Pac. 454; Wood v. Etiwanda Co., Minot, 82 Vt. 344, 73 Atl. 1025; In- 147 Cal. 233, 81 Pac. 512; Sieber v. tegral etc. Co. v. Altoona etc. Co. Frink, 7 Colo. 149, 2 Pac. 901; Dorr (Cal.), 75 Fed. 379, 21 C. C. A. 409; v. Hammond, 7 Colo. 79, 1 Pac. 693; North Am. etc. Co. v. Adams (Colo.), People v. Farmers' etc. Co., 25 Colo. 104 Fed. 404, 45 C. C. A. 185, 21 202, 54 Pac. 626; Welch v. Garrett, 5 Mori-. Min. Rep. 65; Pomeroy on Ri- Idaho, 639, 51 Pac. 405, 19 Morr. Min. parian Rights, sec. 90; Farnham on Rep. 193; Ada etc. Co. v. Farmers' Waters, sec. 691; 17 Am. & Eng. etc. Co., 5 Idaho, 793, 54 Pac. 990, 40 Ency. of Law, 517. L. R. A. 485; McCauley v. McKeig, 612 (3ded.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 571 case. 5 An attempt has been made to cover such a case by a resort to a presumption of abandonment from nonuser. 6 This was early rejected in California. 7 The later case of Smith v. Hawkins 8 treats the matter and avoids the difficulty in an entirely new way; viz., on the prin- ciples not of abandonment at all, but of forfeiture. This case arbitrarily selects five years as a limit of nonuser under any cir- cumstances. The test of intent is then rejected and the principles of forfeiture acting in invitum substituted. Accepting Smith v. Hawkins as law, the rule, as stated above, that nonuser must be considered on .the principles of abandonment under test of reasonableness 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 ex- piration of the five-year period. That case is further considered below. 9 The introduction of the principle that nonuser after a definite period of time operates as a forfeiture as distinguished from abandonment was hence introduced in California only recently, and by a decision of the court, not by legislation. In the recent water codes of the arid States this new principle usually finds a place also, as considered below. 10 (3d ed.) 571. Discharged Waste and Recapture. Where water has been severed from the natural stream and used in an artificial structure that reduces it to possession, we have seen that it has become private property, and is dealt with by the law as a corpus (as distinguished from the usufructuary water-right in the natural stream), not longer subject to the law of naturally run- ning waters. In discharging it as waste from the ditches, etc., the question is not one of abandonment of a water-right, but of abandonment of specific particles of water, viz., the very particles that are discharged. The matter is of importance here, but has 5 Beaver etc. Co. v. St. Vrain etc. 7 Partridge v. McKinney, 10 Cal. Co., 6 Colo. App. 130, 4 Pac. 1066; 181, 1 Morr. Min. Rep. 185. Platte etc. Co. v. Central etc. Co., 32 8 no Cal. 122, 42 Pac. 453, affirmed Colo. 102, 75 Pac. 391. in 120 Cal. 86, 52 Pac. 139, 19 Morr. 6 Sieber v. Frink, 7 Colo. 148, 2 Min. Rep. 243. Pac. 901; Kinney on Irrigation, see. 9 Sec. 575. 257. 10 Infra, sec. 576. 572,573 Ch. 25. LOSS OF EIGHT. (3d ed.) 613 been fully treated elsewhere, and the reader is referred to a pre- ceding chapter. 11 (3d ed.) 572. Parol Sale or Faulty Deed. Owing to the insistence in the early days on the "trespasser" 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 posses- sion. A sale of a possessory right on public land was an un- equivocal sign of intent to relinquish on the grantor's part, and hence was evidence of an abandonment. 12 To-day, possessory rights on public land have (under the "free development" theory) been so far raised into the dignity of real estate 13 that a sale will, if in writing so as to satisfy the statute of frauds, operate as a transmission of title, like any other con- veyance, without loss of priority. But still the old view has some survival where the sale is by parol, or by faulty deed. Such a sale, so far as the old rule has survived, is not inoperative. It constitutes an abandonment on the part of the grantor, and the creation of a new right in the grantee as a new appropriator 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 un- successful attempt at a parol sale) is not enough without the actual relinquishment of possession. 14 The rule is, however, but a curious survival of "ancient" law before possessory rights on the public domain came to be recog- nized as freehold estates. It properly has no ground for exist- ence to-day. (3d ed.) 573. Failure of Diligence in Construction Work. An ap- propriator seeking the benefit of the doctrine of relation loses the 11 Supra, sec. 37 et seq. of a mining ditch, who took water 12 Supra, sec. 555; Black v. Elk- therefrom for irrigation, by leasing horn Min. Co., 163 U. S. 445, 16 Sup. their interest therein, abandoned their Ct. Rep. 1101, 41 L. Ed. 221, 18 Morr. irrigation rights in the ditch. Davis Min. Rep. 375. v. Chamberlain, 51 Or. 304, 98 Pac. 13 Supra, sees. 89 et seq., 283 et 154. seq. Sale is evidence of an abandonment. 14 The cases are cited, supra, sec. Miller v. Wheeler (1909), 54 Wash. 655. ^29. 103 Pac. 641, 23 L. R. A., N. S., Compare the following: The owners 1065. 614 (3ded.) Pt. III. THE LAW OF PBIOB APPEOPBIATION. 574 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 obtained against the other claimant who has performed the requisite formalities. 15 The two principles should be kept distinct. That this does not rest on abandonment is shown by the rule that the failure of diligence is immaterial if the diversion and use are nevertheless completed before others intervene. 16 The matter has already been discussed at length. 17 B. FOEFEITUBE. (3d ed.) 574. Failure to Comply With Statute in Making 1 an Appro- priation. Section 1419 of the Civil Code of California is as fol- lows: "Forfeiture. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a sub- sequent claimant who complies therewith. ' ' The rules mentioned are those governing how an appropriation is to be made. 17 * We have already discussed the cases construing this section, the result being seen that the word "claimants" here used means only those who are engaged in the preparatory work, and seek the benefit of the doctrine of relation. It does not apply to an ap- propriator by actual diversion, 18 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 statutory forfeiture of a right once acquired, as distinguished from abandonment, in those States where this section is copied. 19 15 Nevada etc. Co. v. Kidd, 37 Cal. the purpose of such appropriation 282. such water or such use of water, is 16 Wells v. Mantes, 99 Cal. 583, 34 hereby declared to be unappropri- Pac. 324. ated." 17 Supra, sec. 364 et seq. 18 De Necochea v. Curtis, 80 Cal. I7a Cal. Stats. 1911, e. 406, devoted 397, 20 Pac. 563, 22 Pac. 198; Wells to power uses, contains the following v. Mantes, 99 Cal. 583, 34 Pac. 324; in section 4: "All water or the use supra, see. 364 et seq. of water which has been heretofore 19 "The title to the water does not appropriated and which has not been arise as we have intimated before, put, or which has ceased to be put from the manifestation of a purpose to some useful or beneficial purpose, to take, but from the effectual prosecu- or which is not now in process of tion of that purpose. This prosecu- being put to some useful or bene- tion, therefore, is a necessary element ficial purpose with due diligence in of a title, and the negation of this, proportion to the magnitude of the the abandonment of the purpose, is not work necessary properly to utilize for so much matter in avoidance of title, 575 Ch. 25. LOSS OF RIGHT. (3d ed.) 615 Such, also, would seem to be the case under those water codes which (as already discussed) 20 include the actual application of the water to a beneficial use within a stated time as a prerequisite to the issuance of a license. 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. 21 It is held that even the time limit so specified does not work a for- feiture unless the State Engineer or the statute expressly so de- clares. 22 (3d ed.) 575. Smith v. Hawkins. If there is any such thing as for- feiture of a water-right, as distinguished from abandonment, it rests, in California, on Civil Code, section 1411, as construed in Smith v. Hawkins. 23 The distinction in principle would be a loss of the right in invitum, as distinguished from a voluntary act. Where mere nonuser and no other important evidence, the jury have difficulty in saying when that continuance of nonuser is un- reasonable. In Smith v. Hawkins, the difficulty is cut short at the end of five years. Nonuser for five years was held to consti- tute a loss of right not by abandonment, and hence irrespective 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 clear decision upon the point, fixing a limit of five years, that, though open to the charge of judicial legislation, 24 it is likely to be followed. The material part of the opinion in Smith v. Hawkins is as fol- lows : "Section 1411 of the Civil Code declares that the appropriation must be for some useful or beneficial purpose, and when the as it is matter showing that no title the United States district court, was ever obtained." Kimball v. Gear- affirmed in 120 Cal. 86, 52 Pac. 139, hart, 12 Cal. 27, 1 Morr. Min. Eep. 19 Morr. Min. Rep. 243. See, also, 615. Cal. Stats. 1911, c. 406, sec. 4, quoted 20 Supra, sec. 420. in the preceding section. 21 See supra, sec. 395 et seq. Cf. 24 "it would be contradicting a Conley v. Dyer, 43 Colo. 22, 95 Pac. fundamental principle of human na- 304; Drach v. Isola (Colo. 1910), 109 ture to allow no effect to the lapse of Pac. 748. time, however long, yet the fixing of 22 Pool v. Utah etc. Co. (Utah), 105 a definite time usually belongs to the Pac. 289. legislature rather than the courts." 23 HO Cal. 122, 42 Pac. 453. The Holmes, J., in Missouri v. Illinois, 200 opinion of the court was delivered by U. S. 520, 26 Sup. Ct. Rep. 268, 50 Mr. Justice Van Fleet, now judge of L. Ed. 572. 616 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 575 appropriator or his successor in interest ceases to use it for such a purpose, the right ceases. This section deals with the forfeiture of a right by nonuser alone. We say nonuser, 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 abandonment, but one of nonuser merely, and, as such, involves a construction of section 1411 of the Civil Code. That section, as has been said, makes a cessation of use by the appro- priator work a forfeiture of his right, and the question for deter- mination is, 'How long must this nonuser continue before the right lapses ? ' K "Upon this point, the legislature has' made no specific declara- tion, but, by analogy, we hold that a continuous nonuser 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 State five years is the period fixed by law for the ripen- ing of an adverse possession into prescriptive title. Five years is also the period declared by law after which a prescriptive right depending upon enjoyment is lost for nonuser; and for analogous reasons we consider it to be a just and proper measure of time for the forfeiture of an appropriator 's right for a failure to use the water for a beneficial purpose. "Considering the necessity of water in the industrial affairs of this State, it would be a most mischievous perpetuity which would allow one who has made an appropriation of a stream to retain indefinitely, as against other appropriators, a right to the waters therein, while failing to apply the same to some useful or beneficial purpose. Though during the suspension of his use, other persons might temporarily utilize the water unapplied by him, yet no one could afford to make disposition for the employ- 25 The previous cases had answered the jury considered unreasonable un- this question by saying any time that der the circumstances. 575 Ch. 25. LOSS OF EIGHT. (3d ed.) 617 ment of the same involving labor or expense of any considerable moment, when liable to be deprived of the element at the pleasure of the appropriator, and after the lapse of any period of time, however great. "The failure of plaintiffs 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 forfeiture of their rights as appro- priators. " Upon a second appeal it was said: "On the former appeal, it appeared from the findings that no beneficial use had been made of the water appropriated through plaintiffs' ditch for a period of five years next before the commencement of the action; and it was held that the right of plaintiffs and their grantor to the use of the water being one acquired by appropriation, a failure for that period to devote the water to a useful or beneficial purpose operated, under section 1411 of the Civil Code, to work a forfeiture of plaintiffs' rights thereto for nonuser, as against a subsequent appropriator ' ' ; and it was further held on the second appeal, "If plaintiffs could forfeit their future right of appropriation by nonuser, equally will they be held to forfeit less than the whole by like failure. In other words, the necessary result of the principles declared on that appeal is that, no matter how great in extent the original quantity may have been, an appropriator can hold, as against one subsequent in right, only the maximum quantity of water which he shall have devoted to a beneficial use at some time within the period by which his right would otherwise be barred for nonuser." 1 In a case in the Federal court 2 Smith v. Hawkins was con- sidered, but as less than five years of nonuser was shown, it was held unnecessary to pass upon that case. A Nebraska case seems to approve Smith v. Hawkins. 3 It has recently been cited with approval, though not actually applied, in. California. 4 The statute of limitations is sometimes referred to in other cases in this connection, but with a view to distinguishing the principle of nonuser alone from that of adverse use; that is, 1 Smith v. Hawkins, 120 Cal. 86, 52 4 Ladd v. Johnston (1909), 156 Cal. Pac. 139, 19 Morr. Min. Rep. 243. 253, 104 Pae. 449, nonuser having 2 Integral etc. Co. v. Altoona etc. lasted only one year; Leavitt v. Las- Co., 75 Fed. 379, 21 C. C. A. 409. sen Irr. Co., 157 "Cal. 82, 106 Cal. 404. 3 Farmers' etc. Co. v. Frank, 72 Neb. 136, 100 N. W. 286. 618 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 576 stating that the limitation period applies to claims of adverse use and not to nonuser at all, and as discouraging claims of abandon- ment, rather than otherwise. For example: "Such a right can- not be lost by nonuser alone short of the period of the limitation of actions to recover real property." 5 Instead of enforcing forfeiture, such an expression is in derogation thereof. 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, 6 an important result of the case. In other States, nonuser of water held for future needs has been allowed to go on for ten years or more, without loss of right, 7 in the absence of statute specifying a shorter time in which the actual use must be accomplished. (3d ed.) 576. Forfeiture Under Statutes. In Oregon an early statute provided that when a ditch is abandoned and thereafter for one year the claimant shall cease to exercise acts of ownership over the same, he shall be deemed to have lost all claim thereto. 8 In Dodge v. Harden 9 it was found that there was no intention to abandon, and it was held that the year of nonuser was not alone enough; that the statute does not dispense with intent; but, on the contrary, preserves the right for a year after that, granting, so to speak, an extra year of grace to the abandoning appro- priator, and is hence diametrically opposed to Smith v. Hawkins instead of supporting it. The court said it would be necessary in showing loss of right "by this statute to show first that he had given up all claims to it, which would be an abandonment, and then that after such abandonment he had ceased for one 5 People v. Farmers' etc. Co., 25 corporation, being the owner or propri- Colo. 202, 54 Pac. 626; Alamosa Co. etor of any ditch, flume or water-right, v. Nelson, 42 Colo. 140, 93 Pac. 1112. have or shall abandon the same, and The same words are used in Dodge who shall for one year thereafter v. Harden, 7 Or. 456, 1 Morr. Min. cease to exercise ownership over said Rep. 63, from which this expression is water-right, ditch or flume, and every evidently borrowed in the Colorado company, corporation or person who opinions. shall remove from this State, with in- 6 See "Appropriation for Future tent or purpose to change his or their Needs," supra, sec. 483 et seq. residence, and shall remain absent one 7 Ibid. year without using or exercising own- 8 Oregon Comp. Stats. 1887, p. ership over such water-right, ditch or 1639, sec. 3833, Act Oct. 29, 1887, sec. flume, by a legally authorised agent, 1, being section 7 of the act relating shall be deemed to have lost all title, to mines and mining claims, page 685 : claim or interest therein." "Whenever any person, company, or 97 Or. 457, 1 Morr. Min. Rep. 63. 57G Ch. 25. LOSS OF EIGHT. (3d ed.) 619 year to exercise any acts of ownership over it." It thus, instead of providing forfeiture, weakens even the rule of abandonment by providing a year of grace not elsewhere given. 10 In Noland v. Coon u the Oregon statute referred to in Dodge v. Harden was enforced, an intent to abandon being shown to coexist with the one year (and more) of nonuser, and likewise in another case where a ditch was destroyed and filled up by a landslide and not used again to take out water for ten years, it was held an abandonment within the Oregon act. 12 This Oregon act is frequently referred to as providing forfeiture as distinguished from abandonment, but such reference is not correct, as it thus provides grace instead of forfeiture, and has no force in the direc- tion of forfeiture. The recent statutes and water codes usually contain a definite period of time after which nonuse causes loss of right. The earliest of these is the Wyoming law of 1888, 13 providing that nonuser for two years (now extended to five years) 14 "shall be deemed an abandonment." This has been held not to apply where such failure results from the unlawful diversion of another. It means a voluntary failure. 15 A Utah statute ie contained the same provision as section 1411 of the California Civil Code, add- ing that when one "ceases to use the water for a period of seven years the right ceases; but questions of abandonment shall be questions of fact and shall be determined as other questions of fact." So far as this section has been before the court, the court has always considered it from the view of intention and abandonment; not of forfeiture. 17 10 In a later Oregon case it is said: 14 Infra. "The right to the use of water by non- 15 Morris v. Bean, 146 Fed 434. user alone cannot be deemed forfeited 16 N substa ntially Laws 1905, c. short of the period prescribed by the log ^ and / fa & statute of limitations for real actions. <, ' ^ nmn -f ., _ , Qn7 , 1000^09 Dodge v. Harden, 7 Or. 456, 1 Morr. See Com P' Laws ' 1907 > see ' 1288x23 - Min. Rep. 63. But such right may 17 Stalling v. Ferrm, 7 Utah, 477, become extinguished by any act show- 27 Pa c- 686; Gill v. Malan, 29 Utah, ing an intent to surrender or aban- 431 > 82 Pa c- 4 ; Promontory etc. Co. don the right, after which, if the per- * Argile, 28 Utah, 398, 79 Pac. 47. son having the right ceases its use In tne last case > tne nonuser did not for one year, his interest is lost." continue for seven years consecutively ; Hough v. Porter, 51 Or. 318, 95 Pac. otherwise the result, perhaps, might 732, 98 Pac. 1083, 102 Pac. 728. have been different. 11 1 Alaska. 36. A Montana statute contains the 12 Ison v. Nelson Min. Co., 47 Fed. same provision. Mont. Civ. Code, sec. 199. 1881. 13 Eev. Stats., sec. 895. 620 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 577 Seven years of nenuser causes loss of right in Utah ; 18 five in Wyoming 19 and Idaho ; 20 four in New Mexico ; 21 three in North Dakota 22 and South Dakota ; 23 two years in Oklahoma. 24 Such statutes as these will probably be construed in the light of Smith v. Hawkins, as providing for forfeiture in invitum, regardless of intent not to abandon. They preserve the posses- sory test (possession of the stream with a bona fide intent) for a definite period of years, but not after that. (3d ed.) 577. Transitionary State of the Law. The evolutionary condition of the law of appropriation at the present time from a possessory system to one based upon a specific use is shown markedly in the present matter. Arising upon the public domain (to which, in California, it remains confined) as a possessory right (though turned into a freehold by the act of 1866), it took on the characteristic features of a system based upon possession of the natural resource, or a portion of its flow. Actual diversion (the taking of possession) created the right; capacity of ditch (the amount in possession) measured the right; changes were per- mitted, the possession being independent of place or character of use. Beneficial use was represented by the requirement of a bona fide intention; and, as concerns loss of right, the right remained until possession was relinquished with actual intention to abandon. 25 The law of abandonment of appropriative rights is based upon this possessory origin of the law, concerned more with relinquish- ment of possession than with failure of use. To-day, as we have frequently pointed out, the law of appro- priation is undergoing a change in which possession of the stream or of its flow is ceasing to be -important, and beneficial use is is Stats., supra. 22 N. D. Stats. 1905, e. 34, see. 48 ; 19 Wyo. Stats. 1905, p. 36; Stats. formerly four years. Rev. Codes, 1907, p. 138, sec. 12; formerly two 1905, sec. 765. years in Stats. 1888, c. 55, sec. 14, 23 s. D. Stats. 1907, p. 373, sec. 4.6 ; Rev. Stats., sec. 895. formerly two years in Stats. 1905, p. 20 Idaho Stats. 1905, p. 27; but see 201 c 132, sec. 45. Stats 1907 p. 507 providing that 24 Qk] gtatg> ]9Q5 274 gl this shall not app y to the doctrine of gec 2g _ TwQ in ' Kansas in some "annual increase or "appropriation cageg _ gee G > L 19Q9 gecg> for future needs." Supra, sec. 483. ..,, 4440 21 N. M. Stats. 1905, p. 270, sec. au ' 5; Stats. 1907, p. 71; Hagerman etc. 25 See cross-references, supra, sec. 'Co. v. McMurray (N. M.), 113 Pac. 139 - 823. 578 Ch. 25. LOSS OF EIGHT. (3d ed.) 621 becoming very important.- This has been affecting the law of loss of right. The first step away from the possessory test of loss of right was in the above matter, fixing a definite number of years of nonuse after which retention of possession of the flow ceased to be a consideration; five years in California and from two to five years under recent water codes; being the introduction of for- feiture as just considered. A still further step is now well under way, looking almost solely to beneficial use at time of controversy. As considered under the question of beneficial use, 26 the decisions and statutes to-day are making "beneficial use the basis, the measure and the limit of the right," whether the time during which possession has been held without use has been reasonable or unreasonable,' or whether it has exceeded the statutory number of years, or not. For a further consideration of this latest phase the reader is referred to another place. 1 Yet it is not clear that the law should wholly disregard the allowance of a reasonable time during which possession, though in nonuse, may be held; nor is it clear that the courts can, if they would, wholly disregard the retention of possession, though with- out use, for a fixed period of years, when such period is allowed by statute. (3d ed.) 578. Conclusions Regarding Abandonment and Forfeiture. As accurate conclusions of the present state of the law as the writer can form are as follows: (a) Abandonment, strictly speaking, occurs only where there has been an actual relinquishment of possession of the flow, and an intention that the relinquishment be permanent. Nonuser is evidence of such intention, but must continue for an unreasona- ble time before it alone shows such intention. Per contra, during a reasonable time, the right to the flow to the capacity of the ditch (the amount in possession) is not lost by abandonment where there is nothing biit nonuser to show an intention to abandon, and what is a reasonable time is a question of fact in each case. (b) By the introduction of the principle of forfeiture in most States, the foregoing becomes true only for a fixed period (usually from two to five years) after which no intention to abandon is 26 Supra, sec. 473 et seq. 1 See cross-references, supra, sec. 139. 622 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 579 necessary, and nonuse ipso facto causes loss of right to the extent that it has continued for the period specified to cause forfeiture. (c) By the latest movement in the law, there is a tendency not to consider either the statutory period of nonuse, nor any ques- tion of reasonable time, but to make actual use at time of con- troversy the sole test; but considering the law as a whole, while it is difficult to draw a conclusion, the correct statement seems to be that the right to water by appropriation is lost in whole or part by nonuse for an unreasonable time (not exceeding the period fixed by statute for loss of right by nonuse) prior to the time a controversy arises. C. ADVERSE USE OR PRESCRIPTION. (3d e<3.) 579. General. By one allowing another to divert the water, or to use a ditch 2 (in whole or in part), 3 adversely for the stat- utory period, the right is correspondingly lost by the former and acquired by the latter. 4 A corporation is in this respect on the same footing as a natural person. 5 A landlord may lose his right in this way, if the adverse use is against his tenant. 6 Con- temporaneous adverse use by several may ripen into a separate right for each. 7 The principle of adverse use is entirely distinct from that of appropriation. It is said in California: "An appropriator of water under these circumstances, and while the land which he sub- jects to his necessary uses continues to be part of the public domain, is a licensee of the general government; but when such part of the public domain passes into private ownership it is bur- 2 McEwen v. Preece, 45 Wash. 612, 101 Cal. 242, 35 Pac. 770; Faulkner 88 Pac. 1031; Bashore v. Mooney, 4 v. Rondoni, 104 Cal. 140, 37 Pac. 883; Cal. App. 276, 87 Pac. 553. Higuera v. Del Ponte (Cal. App.), 3 Union Water Co. v. Crary, 25 Cal. 88 Pac. 808 ; State v. Quantic, 37 509, 85 Am. Dec. 145; 1 Morr. Min. Mont. 32, 94 Pac. 499, quoting the Rep. 196; Evans v. Ross (Cal.), 8 first edition of this book, page 278. Pac. 88 ; Smith v. Green, 109 Cal. 228, Montecito etc. Co. v. Santa Bar- at 233, 41 Pac. 1022; Smith v. Haw- bara, 144 Cal. 578, 77 Pac. 1113. kins, 120 Cal. 86, 52 Pac. 139, 19 6 Heilbron v. Last Chance etc. Morr. Min. Rep. 243; Bashore v. Ditch Co., 75 Cal. 117, 17 Pac. 65. Mooney, 4 Cal. App. 276, 87 Pac. 553. So one may acquire a prescriptive 4 Davis v. Gale, 32 Cal. 26, 91 Am. right through use by one's tenants; Dec. 554, 4 Morr. Min. Rep. 604; Perry v. Calkins (Cal. 1911), 113 Cox v. Clough, 70 Cal. 345, 11 Pac. Pac. 136. 732 ; Alta etc. Co. v. Hancock, 85 Cal. 7 Collins v. Gray, 3 Cal. App. 72.3, 219, 20 Am. St. Rep. 217, 24 Pac. 86 Pac. 983; Abbott v. Pond, 142 645; Gallagher v. Montecito etc. Co., Cal. 396, 76 Pac. 60. 579 Ch. 25. LOSS OF EIGHT. (3d ed.) 623 dened by the easement granted by the United States to the appro- priator, 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 who holds water-rights by prescription. The differences are twofold. A prescriptive right could not be acquired against the United States, and can be acquired only by one claimant against another private individual. Again, such an appropriation, to perfect the rights of the appropriator, does not necessitate use for any given length of time, while time and adverse use are essential elements to the perfection of a prescriptive right." 8 But the two rights are not necessarily inconsistent. 9 A notice of appropriation is not necessary to make out a right by adverse use; 10 nor, on the other hand, is a diversion under such notice per se adverse ; u but proof not amounting to adverse use may be sufficient to establish a priority by appropriation. 12 No prescriptive right can arise to be negligent, as, for example, to negligently allow seepage from a ditch, 13 or to continue a public nuisance. 14 No prescriptive right can arise to maintain a ditch on a highway, being a public nuisance. 15 The burden of proof is upon the adverse claimant. 16 Evidence of a prescriptive right must be clear and conclusive, 17 but proof of actual use for the prescriptive period raises a presumption that it was adverse in character. 18 The right by adverse use must 8 Smith v. Hawkins, 110 Cal. 122, Cal. 403, 90 Pac. 1052. Nor gener- 42 Pac. 453. See, also, State v. ally any property set apart for public Quantic, 37 Mont. 32, 94 Pac. 499. use; People v. Kerber, 152 Cal. 731; 9 Hough v. Porter, 51 Or. 318, 95 Visalia v. Jacobs, 65 Cal. 434; Clover- Pac. 732, 98 Pae. 1083, 102 Pac. 728, dale v. Smith, 128 Cal. 230; Southern citing Gardner v. Wright, 49 Or. 609, Pacific Co. v. Hyatt, 132 Cal. 240; 632, 91 Pac. 286; Davis v. Chamber- Shaw v. Town of Sebastopol (Cal., lain, 51 Or. 304, 98 Pac. 154. Apr. 4, 1911), 115 Pac. . 10 Alta etc. Co. v. Hancock, 85 Cal. 16 Morris v. Bean (Mont.), 140 219, 20 Am. St. Rep. 217, 24 Pac. 645. Fed. 433 ; Bauers v. Bull, 46 Or. 60, u Weidensteiner v. Mally (1909), 78 Pac. 757; Ball v. Kehl, 95 Cal. 55 Wash. 79, 104 Pac. 143. 613, 30 Pac. 780; Ison v. Sturgill 12 Hough v. Porter, 51 Or. 318, 95 (Or.), 109 Pac. 579; but semble, con- Pac. 732, 98 Pac. 1083, 102 Pac. 728. tra, Gardner v. Wright, 49 Or. 609, 91 13 Jenkins v. Hooper etc. Co., 13 Pac. 286. Utah, 100, 44 Pac. 829. See, how- 17 McRae v. Small, 48 Or. 139, 85 ever, Middelkamp v. Bessemer etc. Pac. 503 ; Morris v. Bean, supra. Co. (1909), 46 Colo. 102, 103 Pac. 18 Gurnsey v. Antelope Creek & 280, 23 L. R. A., N. S., 795. Red Bluff Water Co., 6 Cal. App. 14 Debris cases, supra, sees. 527, 387, 92 Pae. 326. 528. "A diversion more than ten years is Kern etc. Co. v. Bakersfield, 151 prior thereto (April 1, 1890) and sub- 624 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 579 be specially pleaded. 19 It has also been held, however, provable by plaintiff under a general allegation of ownership. 20 To support a plea of prescription or estoppel there must be a finding of some definite quantity diverted. 21 sequent use is established; but no evi- dence was offered showing an earlier use. Having established these facts, he made a prima facie showing of ad- verse user; and, this having been es- tablished, the burden of showing that such user was not a substantial inter- ference with the rights of others was thereby shifted to the parties ques- tioning such claim." Hough v. Por- ter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728; Gardner v. Wright, 49 Or. 609, 628, 91 Pac. 286. 19 Since actual title passes to the adverse claimant, he should, on prin- ciple, it would seem, be allowed to rely thereon by a general allegation of ownership, if a plaintiff, or a general denial of plaintiff's ownership, if a defendant. But the weight of author- ity that the writer has, supports the text strongly as to the pleading of the defendant though less strongly as to the pleading of plaintiff. Defendant must plead title by ad- verse use affirmatively in order to rely thereon. Lux v. Haggin, 69 Cal. 255, at 267, 10 Pac. 674; American W. Co. v. Bradford, 27 Cal. 361, 15 Morr. Min. Rep. 190; Matthew v. Ferrea, 45 Cal. 51; Lux v. Haggin, 69 Cal. 269, 10 Pac. 674 ; McKeohn v. North- ern Pac. Ry., 45 Fed. 464; State v. Quantic, 37 Mont. 32, 94 Pac. 491, quoting and relying on the first edi- tion of this book, page 278. Also the following cases semble: Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379; Montgomery v. Locke, 72 Cal. 76, 13 Pac. 401; Chauvet v. Hill, 93 Cal. 407, 28 Pac. 1066; Churchill v. Louie, 135 Cal. 611, 67 Pac. 1052; Montecito W. Co. v. Santa Barbara, 144 Cal. 596, 77 Pac. 1113. He may plead it simply by name and reference to the statute of limitations (Par- tridge v. Shepard, 71 Cal. 470, 12 Pac. 480; Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379. See Churchill v. Louie, 135 Cal. 608, 67 Pac. 1052; Cal. Civ. Code, p. 458) ; but if he chooses to al- lege the facts showing adverse use, he will be held strictly to allegation of all necessary requisites. Ibid. The writer has no Western holding that defendant may show title by adverse use under a general denial, though such decisions may exist. As to plaintiff's pleading, however (complaint or declaration), it is held that a general allegation of own- ership suffices. Gillespie v. Jones, 17 Cal. 259; Montecito W. Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113; Sullivan v. Dunphy, 4 Mont. 505. But it ha^ also been held to the contrary, and that plaintiff, like defendant, must specifically allege the title by adverse use. Lick v. Diaz, 30 Cal. 65; Heintzen v. Binninger, 79 Cal. 5, 21 Pac. 377. See, also, Cal. Civ. Code, sec. 458, and Winter v. Winter, 8 Nev. 129. See this case commented on in State v. Quantic, supra. At all events, if plaintiff chooses to allege the facts showing his adverse use, he, like the defendant, will be held to a strict allegation of all requisites (Ibid.), expecting that he need not allege payment of taxes. Ball v. Nichols, 73 Cal. 193, 14 Pac. 831. Most of the cases above cited dealt with water-rights, but some with lands. Possibly a distinction may exist in that, strictly speaking, one "pre- scribes" only for incorporeal heredit- aments, while he claims land strictly under the statute of limitations; in the former case, relying on the his- torical fiction of presumption of grant from immemorial use (now shortened by analogy, but by analogy only, to the period of limitations for real es- tate) ; while in the latter relying strictly on the statute as having barred all possible claim against him, so as to leave him in the position of an owner; a historical difference in theory, though reaching the same re- sult. 20 Montecito etc. Co. v. Santa Bar- bara, 144 Cal. 578, 77 Pac. 1113. 21 Hayes v. Silver Creek etc, Co., 136 Cal. 240, 68 Pac. 704. 580 Ch.25. LOSS OF EIGHT. (3d ed.) 625 A right obtained by prescription may itself, in turn, be lost by adverse use later, or in other ways of loss of right. 22 In one case a it is said that an adverse use of land 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 water-right usually passes as an appurtenance to the land. 24 (3d ed.) 580. Effect of Adverse Use or Prescription. It is said that a grant will be presumed to have been made to the adverse claim- ant. 25 The rule is thus stated in Smith v. Hawkins : l ' ' One who claims a right by prescription must use the water continuously, uninterruptedly and adversely for a period of five years, after which time the law will conclusively presume an antecedent grant to him of his asserted right." The rule is stated in substantially the same terms in Yankee Jim's Union Water Go. v. Crary, 2 say- ing : ' ' The right of the first appropriator may be lost, in whole or in some limited portions, by the adverse possession of another. And when such person has had the continued, uninterrupted and adverse enjoyment of the watercourse or of some portion of it during the period limited by the statute of limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him." 3 The supposed grant, however, 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 22 City of Los Angeles v. Pomeroy, ceased to use it personally and licensed 125 Gal. 420, 58 Pac. 69; Gardner v. use to another on his behalf as agent. Wright, 49 Or. 609, 91 Pac. 286. 23 Alta Land Co. v. Hancock, 85 Mere nonuse for five years will ex- < *$ 20 Am ' St Ee P" 217 > 24 tinguish a servitude acquired by en- 24 ' ^ ' joyment Cal Civ Code, 811. This 25 ^^ Tuolumne J^ c 25 applies to a ditch. Los Angeles v. Ca] 3g M . ^ Pomeroy, 12o Cal. 420, 427, 58 Pac. k ' t c c F 25 r 'i r 4 69; Smith v. Hawkins, 110 Cal. 122, ^ 4 ?w l IK i lS?4. viT* ^ 10*7 /(o r> /IRQ fj;+*.\ rt,,,, 85 Am - L>ec - 1 45 > 1 Morr. Mm. itep. l'. Fv? C> 453 < 1 )- Jft3B 196; American Co. v. Bradford, 27 whether this applies to a water-right Cal / 360 15 Morr Min R ' IQQ acquired by adverse use. It would Faulkner ' v> Eondoni 104 Ca l. 140, 37 seem not, since a water-right is not a p ggg servitude. Title to land acquired by ^^ ' , , 2Q . p ... adverse possession is not lost by mere 2 25 Ca] ' 5Q9 > 85 Am> nonuse - Morr. Min. Rep. 196. Compare Strong v. Baldwin (1908), 3 Yankee Jim's Union Water Co. v. 154 Cal. 150, 129 Am. St. Eep. 149, Crary, 25 Cal. 509, 85 Am. Dec. 145, 97 Pac. 178, as to nonuse not ending 1 Morr. Min. Rep. 196. Accord, a prescriptive right where claimant Evans v. Ross (Cal.), 8 Pac. 88. Water Eights 40 626 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 580 passes in either view. 4 Actual title passes, such as will support an action to quiet title, 5 or which can be proved under a general allegation of ownership. 6 The continuance of the use is hence no longer a cause of action as a continuing trespass. 7 The title once acquired is as complete as any other. 8 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 transmits the right without loss of priority. But if that fiction is laid aside, it would seem that the adverse use gives a right only from the start of the adverse use, as a new appropriator by actual diversion, as in the case of a parol sale. 9 It has been said that the right obtained by adverse use dated only from the first adverse diversion, 10 and that "where a right rests upon the statute of limitations, 'the disseisor acquires a new title founded on the disseisin. He does not acquire or succeed to the title and 4 Alhambra etc. Water Co. v. Rich- ardson, 72 Cal. 598, 14 Pac. 379; Cal. Civ. Code, 1007; Woodward v. Faris, 109 Cal. 12, 41 Pac. 781; Strong v. Baldwin, 154 Cal. 150, 129 Am. St. Rep. 149, 97 Pac. 178. 5 Bashore v. Mooney, 4 Cal. App. 276, 87 Pac. 553. 6 Montecito etc. Co. v. Santa Bar- bara, 144 Cal. 578, 594, 77 Pac. 1113. Also to the effect that not only is the remedy barred, but title actually passes, Wutchumna etc. Co. v. Ragle, 148 Cal. 759, 84 Pac. 162. 1 Patterson v. Ft. Lyon etc. Co., 36 Colo. 175, 84 Pac. 807. But in Henshaw v. Salt River etc. Co., 9 Ariz. 418, 84 Pac. 908, an action was allowed after the prescriptive period on the ground that it was a contin- uing trespass and only right of action for past diversion was barred, which would nullify the rule of adverse use entirely. The injuries to land from water seeping from a properly constructed irrigation ditch which is intended to be permanent constitutes a single cause of action, and as affected by the stat- utes of limitations accrues at the be- ginning of the injury. Middelkamp v. Bessemer etc. Co. (1909), 46 Colo. 102, 103 Pac. 280, 23 L. R. A., N. S., 795. Likewise all cause of action from flooding is barred at the end of the statutory period, not from the completion of the structure, but from the first injury. Gulf Ry. Co. v. Moseley (Ind. Ter.), 161 Fed. 72; 88 C. C. A. 236; Greeley Irr. Co. v. Von Trotha (Colo.), 108 Pac. 985. 8 "No principle of law is better es- tablished than that, when title is once acquired by adverse possession for the statutory period, such title remains in the person so acquiring it as com- pletely as if conveyed to him by deed from the owner. (Citing Joy v. Stump, 14 Or. 361, 12 Pac. 929.) Therefore, after the title by such pos- session became complete, no interrup- tions were of any avail to plaintiffs, unless actual, open, exclusive, continu- ous, and adverse, under claim of own- ership for the statutory period." Gardner v. Wright, 49 Or. 609, 91 Pac. 286, citing B. & C. Comp. Stats., sec. 4; Pearson v. Dryden, 28 Or. 350, 43 Pac. 166; Oregon Con. Co. v. Allen Ditch Co., 41 Or. 209, 93 Am. St. Rep. 701, 69 Pac. 455. 9 Supra, sec. 555. 10 Lavery v. Arnold, 36 Or. 84, 57 Pac. 906, 58 Pac. 524; Oregon etc. Co. v. Allen etc. Co., 41 Or. 209, 93 Am. St. Rep. 701, 69 Pac. 455. 581 Ch. 25. LOSS OF EIGHT. (3d ed.) 627 estate of the disseisee, but is vested with a new title and estate founded on and springing from the disseisin.' " u (3d ed.) 581. Extent. The extent of the use during the prescriptive period limits the right. 12 Citing other authorities it is said : 13 "The principle declared by these authorities is that the rights of a party who has acquired a prescriptive title; and the rights of one against whom said title is acquired, are mutual, and each is entitled to demand that the prescriptive right be exercised in the same manner that it was exercised while it was being acquired." Adverse use for watering of stock alone could gain a right only to the extent of the use, and it would not confer any right to the additional use of water for the irrigation of land. 14 Where plaintiff constructed an irrigation ditch across defendants' land, plaintiff could acquire a prescriptive right to use and main- tain the ditch for the specific purpose of conveying a given quan- tity of water while defendants at the same time were using a portion of the same ditch to convey a separate distinct quantity of water, plaintiff's prescriptive, right being limited tb his use as measured by the quantity of his water carried through the ditch. 15 Consequently the prescriptive right may be for only a limited amount of water in a ditch, 16 and the person against whom it is acquired may use the property himself in any manner not incon- sistent with the right thus limited. 17 Not only is the right limited by the use, but conversely the right is coextensive with the use during the prescriptive period and can- not thereafter be restricted by the former owner, as, for example, 11 Alhambra etc. Water Co. v. Rich- Pac. 608; White v. White (1906), ardson, 72 Cal. 598, 608, 14 Pac. 379. App. Gas. 72 (Eng.). 12 Burris v. People's Ditch Co., 104 13 Wutchumna etc. Co. v. Ragle, 148 Cal. 248, 37 Pac. 922 ; Hall v. Carter, Cal. 759, 84 Pac. 165. See, also, 33 Tex. Civ. App. 230, 77 S. W. 19; Logan v. Guichard (Cal. 1911), 114 North Fork Co. v. Edwards, 121 Cal. Pac. 989. 662, 54 Pac. 69; Smith v. Hampshire, 14 Duckworth v. Watsonville etc. Co., 4 Cal. App. 8, 87 Pac. 224; Knight v. 150 Cal. 520, 89 Pac. 338; Same v. Cohen, 7 Cal. App. 43, 93 Pac. 396; Same, 158 Cal. 206, 110 Pac. 927. Chessman v. Hale, 31 Mont. 577, 79 15 Smith v. Hampshire, 4 Cal. App. Pac. 256, 68 L. R. A. 410, 13 Ann. 8, 87 Pac. 224. Cas. 1038; Norman v. Corbley, 32 16 Bashore v. Mooney, 4 Cal. App. Mont. 195, 79 Pac. 1059; Smith v. 276, 87 Pac. 553. Logan, 18 Nev. 149, 1 Pac. 678; 17 Hoyt v. Hart, 149 Cal. 722, 87 Boynton v. Longley, 19 Nev. 69, 3 Pac. 569. See, also, Oliver v. Burnett, Am. St. Rep. 781, 6 Pac. 437; Church 10 Cal. App. 403, 102 Pac. 223; Stock v. Stillwell, 12 Colo. App. 43, 54 Pac. v. City of Hillsdale (1909), 155 Mich. 395; Mason v. Yearwood (Wash.), 108 375, 119 N. W. 438; Union Min. Co. 628 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 582 a right acquired by prescription cannot be restricted by requir- ing notice to be given in advance when use is made, where such notice was not given during the prescriptive period. 18 Adverse use of land does not carry title to a water-right appur- tenant thereto if there was no specific use made of the water. 19 (3d ed.) 582. Essentials. The following are the requisites for the loss and acquisition of a right by adverse use or prescription, viz. : The use must be continuous for the statutory period, exclusive (i. e., uninterrupted; i. e., peaceable), open (i. e., notorious), under claim of right (i. e., color of title), hostile, and an. invasion of the other's right which he has a chance to prevent, and taxes must be paid. We proceed to consider each of these separately. 20 v. Dangberg, 81 Fed. 73. But see Whitehall v. Brown (1909), 80 Kan. 297, 102 Pac. 783. "Title acquired by the adverse pos- session and user could only be commen- surate and coextensive with the use to which the land was being subjected. The question as to the amount of ground necessary for the use of the ditch and right of way would be one of fact to be determined on the trial of the case, and could not be measured by the calls of the deed In other words, the amount of land neces- sary for the ditch and right of way would have to be determined upon the proofs rather than upon the calls of the deed. It would extend only to the amount adversely used and occupied." Swank v. Sweetwater Irr. Co., 15 Idaho, 353, 98 Pac. 297. 18 Wutchumna etc. Co. v. Ragle, 148 Cal. 759, 84 Pac. 162. If claimant used all the flow there was, his pre- scriptive right extends to the whole flow, although in dry seasons the flow came to less than the amount claimed. Perry v. Calkins (Cal. 1911), 113 Pac. 136. See, however, Logan v. Guichard (Cal. 1911), 114 Pac. 989. 19 Alta etc. Co. v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645. See, also, 93 Am. St. Rep. 719, note. 20 For a general statement of the requirements, see Unger v. Mooney, 63 Cal. 595, 49 Am. Rep. 100 (a leading case) ; Bashore v. Mooney, 4 Cal. App. 276, 87 Pac. 555 ; Montecito etc. Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113; Silva v. Hawn, 10 Cal. App. 544, 102 Pac. 952, and the note in 93 Am. St. Rep. 711. "To have been adverse it must have been asserted under claim of title with the knowledge and acquiescence of the person having the prior right, and must have been uninterrupted. In order to constitute a right by pre- scription, there must have been such an invasion of the rights of the party against whom it is claimed, that he would have had ground of action against the intruder. To be adverse, it must be accompanied by all the elements required to make out an ad- verse possession; the possession must be by actual occupation, open, noto- rious, and not clandestine; it must be hostile to the other's title; it must be held under claim of title, exclusive of any other right, as one's own; it must be continuous and uninterrupted for the period of five years." Alta L. & W. Co. v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645. For recent examples where pre- scriptive rights were upheld, see Silva v. Hawn, 10 Cal. App. 544, 102 Pac. 952; Evans v. Lakeside D. Co., 13 Cal. App. 119, 108 Pac. 1027; Tosini v. Cascade etc. Co. (1909), 22 S. D. 337, 117 N. W. 1037; Davis v. Angelo, 8 Cal. App. 305, 96 Pac. 909; Davis v. Chamberlain, 51 Or. 304, 98 Pac. 154; Mason v. Yearwood (Wash.), 108 Pac. 608; Malmstrom v. People's D. Co. (Nev.), 107 Pac. 98. Where persons whose names ap- peared on a map were owners of the 583 Ch. 25. LOSS OF EIGHT. (3ded.) 629 (3d ed.) 583. Continuous. The use must be continuous for the period of the statute of limitations governing actions for the recovery of real property. 21 This period is five years in California, 22 which has been thought unfortunate as an unusually short period, but has been copied frequently in the West. 23 The statutory period is three years in Arizona ; 24 five years in California, 25 Colorado, 1 Idaho, 2 Nevada ; 3 seven years in Utah ; 4 ten years in Nebraska, 5 Montana, 6 North Dakota, 7 Oregon, 8 Texas, 9 and Washington ; 10 fifteen years in Kansas'; u twenty years in South Dakota. 12 It is sufficiently continuous if the adverse claimant used the water regularly as his needs required, though this did not neces- sitate a steady flow. 13 In one case, 14 it was held that where various tracts of land marked with their respective names, and for over ten years they and their predecessors in interest had diverted and used through a certain ditch all the surface flow of the stream continuously and uninterruptedly and under claim of title as against all owners of land below the ditch, which ditch carried practically all the water of the stream, the former acquired a prescriptive right against the lower owners. Ar- royo D. Co. v. Baldwin (1909), 155 Gal. 280, 100 Pac. 874. Artificial contrivances are not neces- sary; use through existing or natural conduits may be adverse. Evans v. Lakeside D. Co., 13 Cal. App. 119, 108 Pac. 1027. 21 Cal. Code Civ. Proc., 325; Mason v. Yearwood (Wash.), 108 Pac. 608; State v. Quantic, 37 Mont. 32, 94 Pae. 491. 22 Cal. Code Civ. Proc., sec. 318. 23 Pomeroy on Eiparian Eights, sees. 137, 151. 24 Semble, Eev. Stats. 1901, sec. 2935. Ten years in some cases. 25 Code Civ. Proc., 318; Alta etc. Co. v. Hancock, 85 Cal. 219, 20 Am. St. Eep. 217, 24 Pac. 645; Gallagher v. Water Co., 101 Cal. 242, 35 Pac. 770; Eice v. Meiners, 136 Cal. 292, 68 Pac. 817; Gutierrez v. Wege, 145 Cal. 730, 79 Pac. 449; Silva v. Hawn, 10 Cal. App. 544, 102 Pac. 952. Ten years against the State. Code Civ. Proc. 315 1 M. A. S., sec. 2923; Laws 1874, p. 177. 2 Gen. Stats. 1887, sec. 4043; Hall v. Blackman, 8 Idaho, 272, 68 Pac. 19; Swank v. Sweetwater Co., 15 Idaho, 353, 98 Pac. 297. 3 Boynton v. Longley, .19 Nev. 69, 3 Am. St. Eep. 781, 6 Pac. 437. 4 Center etc. Co. v. Lindsay, 21 Utah, 192, 60 Pac. 559. Compare, also, Lara v. Sandell, 52 Wash. 53, 100 Pac. 166. 5 Crawford etc. Co. v. Hathaway, 67 Neb. 325, 108 Am. St. Eep. 647, 93 N. W. 781, 60 L. E. A. 889. 6 Smith v. Duff (1909), 39 Mont. 374, 133 Am. St. Eep. 582, 102 Pac. 981. See Talbott v. Butte etc. Co., 29 Mont. 17, 73 Pae. 1111, formerly five years, semble. ^ Eev. Codes, 1905, sec. 4928. 8 Ison v. Sturgill (Or.), 109 Pac. 579. Formerly twenty years (semble), Dodge v. Marden, 7 Or. 456, 1 Morr. Min. Eep. 63. 9 Haas v. Choussard, 17 Tex. 588; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874. 10 Benton v. Johncox, 17 Wash. 277, 61 Am. St. Eep. 912, 49 Pac. 496, 39 L. E. A. 107. Seven years (semble), Lara v. Sandell, 52 Wash. 53, 100 Pac. 166. 11 Gen. Stats. 1905, sec. 4883. 12 Eev. Codes 1903, Civ. Code, sec. 43. 13 Hesperia etc. Co. v. Eogers, 83 Cal. 10, 17 Am. St. Eep. 209, 23 Pac. 196. See 93 Am. St. Eep. 717, note; Collins v. Gray, 3 Cal. App. 723, 86 Pac. 983; McDougal v. Lame, 39 Or. 212, 64 Pac. 864; Smith v. Logan, 18 Nev. 149, 1 Pac. 678; Strong v. Bald- win (1908), 154 Cal. 150, 129 Am. St. Eep. 149, 97 Pac. 178. 14 McDougal v. Lame, just cited. 630 (3ded.) Pt. III. THE LAW OF PEIOR APPKOPRIATION. 584 plaintiffs claimed an easement for mining purposes in the water of a stream which contained water only during the winter sea- son, and plaintiffs used it whenever available, the fact that they did not use the water the entire year did not prevent their adverse use from being continuous. In the leading case of Hesperia etc. Co. v. Rogers, 15 Mr. Justice Thornton, commenting upon this principle, says: "The correct rule as to continuity of user, to give a presumptive right to an easement, and what shall consti- tute such continuity, can be stated only with reference to the nature and character of the right claimed. The right is not abandoned to the use of a ditch to convey water for purposes of irrigation, because water does not flow in it every day in the year. The party claimant does not need the ditch every day in the year, and the law does not require him, to constitute continuity of use, to use the water when he does not need it. If he has used the ditch at such times as he needed it, it is regarded by the law as a continuous use. If a right of way over another's land has been used for more than five years, it is not necessary, to make good such use, that the claimant has used it every day. He uses it every day, Oi" once in every week, or twice a month, as his needs require. He is not required to go over it when he does not need it, to make his use of the way continuous. The claimant is required to make such reasonable use of the way as his needs require. So it is with the ditch. If, whenever the claimant needs it from time to time, he makes use of it, this is a continuous use." 16 But, where the periodical character of the use arose not from claimant's own free will, but because of annual interruption by the owner, there is no adverse use. 17 (3d ed.) 584. Exclusive ; Uninterrupted. The terms "exclusive" and "uninterrupted" probably represent the same thing in this con- nection; namely, that to the extent of the right claimed, 18 the 15 83 Cal. 10, 23 Pac. 196. An adverse user of an irrigation 16 A more recent case says : "There ditch during the cropping season only, is a finding, that for more than five constitutes a continuous adverse user, years plaintiff and others used the Silva v. Hawn, 10 Cal. App. 544, 102 same as often as required by them for Pac. 952. irrigating purposes. This is a suffi- 17 Bree v. Wheeler, 4 Cal. App. 109, cient finding as to continuous use, hav- 87 Pac. 255. ing the character of use in view." 18 See supra, sec. 459, as to use of ollins v. Gray, 3 Cal. App. 723, 86 ditch jointly with owner. Pac. 983. 584 Ch. 25. LOSS OF BIGHT. (3ded.) 631 claimant must not have shared the use with the true owner, nor suffered any act of dominion by him, such as an interruption. The use must be uninterrupted. 19 Mere verbal objection is not an interruption ; it must be some act actually causing a stoppage in the adverse use for a reasonable time, 20 though it has been held that use under continual dispute is not adverse. 21 The burden of showing that the use was uninterrupted is on the adverse claimant. 22 Turning water out of defendant's (claimant's) ditch is sufficient interruption, though he turned it back again when plaintiff left. 23 An annual interruption pre- vents adverse use. 24 Secret interruption by stealth does not stop the running of adverse use. 25 It has been held that the word "uninterrupted" comprehends "continuous," 1 and that "uninterrupted" is synonymous with "peaceable" so far as necessary in pleading prescriptive title. 2 A suit by a third person against the adverse claimant does not 19 American Co. v. Bradford, 27 Cal. 360, 15 Morr. Min. Rep. 190; Davis v. Gale, 32 Cal. 36, 91 Am. Dec. 554, 4 Morr. Min. Rep. 604; 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; Watts v. Spencer, 51 Or. 262, ,)4 Pac. 39; Union Mining Go. v. Dangberg, 81 Fed. 173, saying that an inteiiuption, "however slight," prevents prescription. 20 'Cox v. Clough, 70 Cal. 345, 11 Pac. 732; Higuerra v. Del Ponte (Cal. App.), 88 Pac. 808; Oregon etc. Co. v. Allen etc. Co., 41 Or. 209, 93 Am. St. Rep. 701, 69 Pac. 455. It was not necessary in order to make plaintiff's adverse use of an irrigation ditch across defendant's land exclusive, that all other persons were excluded from using the ditch, so long as plaintiff's use thereof was not disturbed. Silva v. Hawn, 10 Cal. App. 544, 102 Pac. 952. See Perry v. Calkins (Cal. 1911), 113 Pac. 136. ' 21 Faull v. Cooke, 19 Or. 455, 20 Am. St. Rep. 836, 26 Pac. 662. Where the owner protested whenever claimant made his use and always sought to prevent him, no prescriptive right arises. Union Min. Co. v. Dang- berg, 81 Fed. 73. 22 Union Mining Co. T. Dangberg, 81 Fed. 73. 23 Authors v. Bryant, 22 Nev. 242, 38 Pac. 439. See, also, Wasatch etc. Co. v. Fulton, 23 Utah, 466, 65 Pac. 205. 24 Bree v. Wheeler, 4 Cal. App. 109, 87 Pac. 255. 25 Brattain v. Conn, 50 Or. 156, 91 Pac. 458. 1 Collins v. Gray, 3 Cal. App. 723, 86 Pac. 983. But see contra, Alta Co. v. Hancock, 85 ' Cal. 227, 20 Am. St. Rep. 217, 24 Pac. 645. 2 Montecito etc. Co. v. Santa Bar- bara, 144 Cal. 578, 77 Pac. 1113, com- menting on Cave v. Crafts, 53 Cal. 135, and saying: "It is true that in Cave v. Crafts, 53 Cal. 135, it is said that the adverse use must be peace- able. But that means no more, as the opinion itself explains, quoting Wood on Nuisances, than that it must be un- interrupted. 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 pre- vents 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 therefore interchange- able and synonymous in the pleading of prescriptive title." 632 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 585 affect or interrupt his adverse use as against a stranger to such suit. 3 (3d ed.) 585. Open; Notorious. These terms, "open" and "notori- ous," probably represent the same thing in this connection. 4 The use must be open and "not clam," or clandestine, hidden or con- cealed. 5 This will hence be an important obstacle to claims to percolating water by adverse use. Since the rules of adverse use are punitive, to induce watch- . fulness, the better view seems to be that it is sufficient if the ad- verse use was open and without attempt at concealment, 6 but a further restriction is sometimes held, requiring notice of the use to be brought home to the owner. 7 Knowledge by the owner of wrongful use of pipes underground must be brought home to him. 8 Between tenants in common, notice is held necessary. 9 Notice to an officer of a corporation is notice to the corporation in this respect. 10 It has been held that no adverse user can be initiated until the owners of the superior right are deprived of the benefit of its use in such a substantial manner as to notify them that their rights are being invaded. 11 (3d ed.) 586. Claim of Right; Color of Title. The occupation must be under a claim of right by the adverse claimant, or, as it is 3 Montecito etc. Co. v. Santa Bar- knowledge follows." Silva v. Hawn, bara, 144 Cal. 578, 77 Pac. 1113. 10 Cal. App. 544, 102 Pac. 955. 4 Smith v. Duff (1909), 39 Mont. 1 Churchill v. Louie, 135 Cal. 608, 374, 133 Am. St. Rep. 582, 102 Pac. 67 Pae. 1052; Britt v. Reed, 42 Or. 981. 76, 70 Pac. 1029; Clark v. Ashley, 34 5 Abbott v. Pond, 142 Cal. 393, 76 Colo. 285, 82 Pac. 588; Swank v. Pac. 60; Montecito etc. Co. v. Santa Sweetwater Co., 15 Idaho, 353, 98 Pac. Barbara, 144 Cal. 578, at 597, 77 Pac. 297; Weidensteiner v. Mally (1909), 1113; Anaheim W. Co. v. Ashcroft, 55 Wash. 79, 104 Pac. 143. 153 Cal. 152, 94 Pac. 613 (use by a 8 Gray v. Cambridge, 189 Mass. 405, pump) ; Cal. Code Civ. Proc., sees. 76 N. E. 195, 2 L. R'. A., N. S., 977. 322, 324; Hume v. Rogue Riv. Co., 9 Smith v. North etc. Co., 16 Utah, 51 Or. 238, 131 Am. St. Rep. 732, 83 194, 52 Pac. 283; Beers v. Sharpe, 44 Pac. 391, 92 Pac. 1072, 96 Pac. 865; Or. 386, 75 Pac. 717. Curtis v. La Grande Co., 20 Or. 34, 23 10 Montecito etc. Co. v. Santa Bar- Pac. 808, 25 Pac. 378, 10 L. R. A. 484. bara, 144 Cal. 578, 77 Pac. 1113. 6 Gurnsey v. Antelope etc. Co., 6 H Wimer v. Simmons, 27 Or. 1, 50 j Cal. App. 387, 92 Pac. 326. (See 93 Am. St. Rep. 685, 39 Pac. 6; North Am. St. Rep. 719, note.) Evans v. Powder Co. v. Coughanour, 34 Or. 9, Lakeside D. Co., 13 Cal. App. 119, 108 54 Pac. 223 ; Bowman v. Bowman, 35 Pac. 1027. "When the use is not Or. 279, 57 Pac. 546; Boyce v. Cup- secret or clandestine, but open, visible per, 37 Or. 256, 61 Pac. 642; Watts and notorious, the presumption of v. Spencer, 51 Or. 262, 94 Pac. 39. 580 Ch. 25. LOSS OF EIGHT. (3d ed.) 633 sometimes put, under color of title. 12 A patent from the govern- ment to land through which water flows or percolates does not give color of title to the water under the Colorado doctrine of the effect of land patents on water-rights. 13 Claim of right is nega- tived by proof of an offer to purchase or rent. 14 In Oregon on a question of adverse use it has been held that it will be presumed that the use was under claim of right after death of the person initiating the use. 15 A use under a void deed as though the deed were good is adverse to the grantor, though not necessarily ad- verse to the right of strangers to the deed, 16 because it is a claim against the grantor and those in privity with him only. The claim is sufficient if by visible acts, and assertions by word of mouth are unnecessary. 17 To give color of title, the adverse claimant may have begun his use in any character whatsoever, but if he began it in the character of an appropriator, pretending to have a valid appro- priation, he must have made his adverse use a use for a beneficial purpose. Since a right of appropriation cannot be held without beneficial use, one pretending to be an appropriator has no color of title without beneficial use. It is consequently held that the adverse use must be for a beneficial purpose ; 18 though the bene- ficial use need not be made immediately, a reasonable time being allowed, as in making the appropriation. 19 Rental and sale is a beneficial use. 20 See Davis v. Chamberlain, 51 Or. 304, 322, 323, but see Knight v. Cohen, 7 98 Pac. 154; Hough v. Porter, 51 Or. Cal. App. 43, 93 Pac. 396. See Briggs 318, 95 Pac. 732, 98 Pac. 1083, 102 v. Avary, 46 Tex. Civ. App. 488, 106 Pac. 728. S. W. 904. 12 Montecito etc. Co. v. Santa Bar- 17 Gurnsey v. Antelope etc. Co., 6 bara, 144 Cal. 578, 77 Pae. 1113; Win- Cal. App. 387, 92 Pac. 326; Knight v. ter v. Winter, 8 Nev. 129; Brossard v. Cohen, 6 Cal. App. 43, 93 Pac. 396. Morgan, 7 Idaho, 215, 61 Pac. 1031; 18 Alta etc. Co. v. Hancock, 85 Cal. Center Creek etc. Co. v. Lindsay, 21 219, 20 Am. St. Eep. 217, 24 Pac. Utah, 192, 60 Pac. 559; American etc. 645; Senior v. Anderson, 130 Cal. 290, Co. v. Bradford, 27 Cal. 360, 15 Morr. at 297, 62 Pac. 563; La very v. Arnold, Min. Rep. 190; Davies v. Angel, 8 36 Or. 84, 57 Pac. 907, 58 Pac. 524; Cal. App. 305, 96 Pac. 909. Oregon etc. Co. v. Allen, 41 Or. 209, 13 Clark v. Ashley, 34 Colo. 285, 82 69 Pac. 455, see 93 Am. St. Eep. 701, Pac. 588. note. 14 Jensen v. Hunter (Cal.), 41 Pac. i Oregon etc. Co. v. Allen etc. Co., 17. But see Logan v. Guichard 41 Or. 209, 93 Am. St. Eep. 701, 69 (Cal. 1911), 114 Pac. 989. Pac. 455. 15 Bauers v. Bull, 46 Or. 60, 78 20 Montecito etc. Co. v. Santa Bar- Pac. 757. bara, 144 Cal. 578, 77 Pac. 1113. As 16 Eose v. Mesmer, 142 Cal. 322, 75 to what is beneficial use, see supra, Pac. 905 j Cal. Code Civ. Proc., sees. sees. 378, 481. 634 (3ded.) Pt. III. THE LAW OF PRIOE APPROPRIATION. 587 While the above decisions requiring beneficial use on the part of the adverse claimant used general language applying to all, yet the "rule would seem not to apply to an adverse claimant not pretending to be an appropriator, and is hence doubted as apply- ing to adverse claimants in other character. 21 For example, a riparian proprietor (in jurisdiction recognizing riparian rights) need not make beneficial use of the water to give color of title, and there would be no reason why one claiming adversely in that character need use the water beneficially. 22 An adverse claimant in the character of an appropriator has, at the same time, color of title without posting a notice of appro- priation, since his actual diversion is sufficient color of title as appropriator by actual diversion. 23 Hence, posting a notice, while valuable evidence, is not necessary to support a right by adverse use. 24 The place of use is also immaterial. 25 Satisfactory proof of a continuous, open, notorious and uninter- rupted use of the waters for the statutory period, and of such a character as to unquestionably indicate that the use was being ex- ercised in hostility to the right of any person to interfere with its exercise is sufficient proof that they claimed a right to use it. 1 (3d ed.) 587. Hostile to Owner; Permission. The use must be hos- tile to the owner ; 2 hence permissive use is not adverse. If there is permission, the use, however long continued, cannot ripen into a right by prescription. 3 21 93 Am. St. Rep. 729, note. 2 Hayes v. Martin, 45 Cal. 563 ; 22 A superior court decision in Call- McManus v. O'Sullivan, 48 Cal. 7; f ornia somewhat to this effect was Francoeur v. Newhouse, 43 Fed. 238 ; rendered by Judge J. M. Seawell, sit- Rhoades v. Barnes, 54 Wash. 145, 102 ting in Madera County, in the case of Pac. 884. California Pastoral Co. v. Madera 3 Ball v. Kehl, 95 Cal. 606, 30 Pac. Canal Co., 1906. 780; Jensen v. Hunter (Cal.), 41 Pac. 23 Supra, sec. 364. 17; Oliver v. Burnett (1909), 10 Cal. 24 Alta etc. Co. v. Hancock, 85 Cal. App. 403, 102 Pac. 223; Davis v. 219, 20 Am. St. Rep. 217, 24 Pac. 645; Martin, 157 Cal. 657, 108 Pac. 866 Frederick v. Dickey, 91 Cal. 360, 27 (fifty years) ; Jobling v. Tuttle, 75 Pac. 742. Kan. 351, 89 Pac. 699, 9 L. R. A., N. 25 Southern Cal. etc. Co. v. Wil- S., 960; Yeager v. Woodruff, 17 shire, 144 Cal. 68, 77 Pac. 767; Meng Utah, 361, 53 Pac. 1045; Hall v. v. Coffey, 67 Xeb. 500, 108 Am. St. Blackman, 8 Idaho, 272, 68 Pac. 19; Rep. 697, 93 N. W. 715, 60 L. R. A. Anderson v. Bassman, 140 Fed. 25; 910. Knight v. Cohen, 7 Cal. App. 43, 93 i Anaheim W. Co. v. Ashcroft Pac. 396; Watts v. Spencer, 51 Or. (1908), 153 Cal. 152, 94 Pac. 613; 262, 94 Pac. 39; Metcalfe v. Faucher Evans v. Lakeside D. Co., 13 Cal. (Tex. Civ. App.), 99 S. W. 1038; App. 119, 108 Pac. 1C27. Rhoades v. Barnes, supra; Weiden- 588 Ch. 25. LOSS OF EIGHT. (3d ed.) 635 Who has the burden of proof where permission is set up? Upon the ultimate issue of adverse use the adverse claimant has the burden of proof ; 4 but it is held that use otherwise falling within the requirements will make a prima facie title by adverse use and will raise a presumption that the use was not permissive ; thereby putting upon the party asserting that there was permis- sion, the burden of proving it. It is said in one case: 5 "Where an open and uninterrupted use of an easement for a sufficient length of time to create the presumption of a grant is shown, if the other party relies on the fact that these acts or any part of them were permissive, it is incumbent on such party, by sufficient proof, to rebut such presumption of a nonappearing grant ; other- wise the presumption stands as sufficient proof, and establishes the right." 6 The case quoted in the foregoing note would, however, also ap- ply the rule to any element in opposition to the adverse right, thus putting upon owners the duty of disproving adverse claims instead of requiring the trespasser to "make good." It has been said that a man's title should count for something in controversies of this character. 7 (3d ed.) 588. Invasion of Right. The use must "substantially inter- fere" with the property of the owner; 8 there must be an actual invasion of his property. 9 There must have been such a use of the water, and such damage, as would raise a presumption that steiner v. Mally (1909), 55 Wash. 78 Pac. 757; Horbach v. Boyd, 64 79, 104 Pac. 143, citing this section Neb. 129, 89 N. W. 644. (2d ed., see. 248). 7 Jensen v. Hunter (Cal.), 41 Pac. 4 Supra sec. 579. 17 - Not officially reported. 5 Fleming v. Howard, 150 Cal. 28, * <***** v " Wri g ht > 49 Or ' 609 > 91 87 PQ/> QfiS -TdC. <:00. American etc. Co. v. Bradford, 27 6 Accord, Gurnsey v. Antelope Co., 6 Cal. 360, 15 Morr. Min. Rep. 190 ; Cal. App. 387, 92 Pac. 326; Knight v. Qneto v. Eestano, 78 Cal. 374, 20 Pac. Cohen, 7 Cal. App. 43, 93 Pac. 396. 743 . p a i ge v . Rocky Ford etc Co ^ "While an adverse right cannot grow 83 Cal. 84, 21 Pac. 1102, 23 Pac. 875; out of mere permissive enjoyment, the Hudson v. Dailey, 156 Cal. 617, 105 burden of proving possession thus Pac. 748; Perry v. Calkins (Cal. claimed to have been held by such per- 1911), 113 Pac. 136; Rhoades v. mission or subserviency is cast upon Barnes (1909), 54 Wash. 145, 102 the party attempting to defeat such Pac. 884; Ison v. Sturgill (Or.), 109 claim." Gardner v. Wright, 49 Or. Pac. 579; Carson v. Hayes, 39. Or. 609, 91 Pac. 286, citing Coventon v. 97; 65 Pac. 814; Wimer v. Simmons Seufert, 23 Or. 548, 32 Pac. 508; 27 Or. 18, 50 Am. St. Rep. 685, 39 Rowland v. Williams, 23 Or. 515, 32 Pac. 6; Huston v. Bybee, 17 Or. 140 PEC. 402; Bauers v. Bull, 46 Or. 60, 20 Pae. 51, 2 L. R. A. 568. 636 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 588 complainant would not have submitted to it unless the respond- ents had acquired the right to so use it. 10 The burden is on the adverse claimant to show such invasion. 11 There are numerous cases holding that this does not mean that actual damage as measured in money need be occasioned by the adverse claimant, however, since a right of property is invaded by any acts inconsistent with it (injuria sine damno), and the use may be adverse, irrespective of the amount of damage, how- ever small that may be ("nominal damage") ; even if there is no actual money damage at all. 12 In this connection, it is neces- sary, however, to refer to other sections where the application of this doctrine is limited considerably by the modern tendency of the law. The cases just cited considered the appropriation primarily measured by capacity of ditch, and not by befceficiaj. use short of abandonment. By statute this is now done away with after a fixed period of nonuse, and even within the period injunctions are largely refused unless the plaintiff can show actual damage to his use at the time of suit. The law upon this matter is in a transitionary state, and presents some confusion. 13 The usual statement in the decisions to-day is that no prescrip- tion can arise under the system of appropriation without dam- age to actual use, nor if water is taken when the owner has no need for it, 14 because under such circumstances the water is 10 Union Mining Co. v. Dangberg, Gal. 456, 26 Pac. 968; Spargur v. 81 Fed. 73, citing Dick v. Bird, 14 Hurd, 90 Cal. 221, 27 Pac. 198; Mott Nev. 161; Dick v. Caldwell, 14 Nev. v. Ewing, 90 Cal. 231, 27 Pac. 194. 167; Boynton v. Longley, 19 Nev. 69, See infra, sec. 642. Compare cases 76, 3 Am. St. Rep. 781, 6 Pac. 437; cited infra, sec. 815 et seq., regarding Water Co. v. Crary, 25 Cal. 504, 85 riparian rights. Am. Dec. 145; Grigsby v. Water Co., 13 See cross-references, supra, sec. 40 Cal. 396, 406; Anaheim Water Co. 139. v. Semi-Tropic Water Co., 64 Cal. 185, 14 E. g., Smith v. Duff (1909), 39 30 Pac. 623; Alta etc. Water Co. v. Mont. 374, 133 Am. St. Rep. 582, 102 Hancock, 85 Cal. 219, 20 Am. St. Rep. Pac. 981; Ison v. Sturgill (Or.), 109 217, 24 Pac. 645; Last Chance etc. Pac. 579; Miller v. Wheeler (1909), Ditch Co. v. Heilbron, 86 Cal. 1, 12, 54 Wash. 429, 103 Pac. 641, 23 26 Pae. 523; Black's Pomeroy on L. R. A., N. S., 1065; Morris v. Water Rights, sec. 132; Kinney on Bean (Mont.), 146 Fed. 433; affirmed Irrigation, sees. 293, 294, 297. in Bean v. Morris, 159 Fed. 651, 86 C. 11 Ison v. Sturgill (Or.), 109 Pae. C. A. 519; Jobling v. Tuttle, 75 Kan. 579. 351, 89 Pac. 699, 9 L. R. A., N. S., 12 Moore v. Clear etc. Works, 68 960; Egan v. Estrada, 6 Ariz. 248, 56 Cal. 146, 8 Pac. 816; Stanford v. Felt, Pac. 721; Meng v. Coffey, 67 Neb. 71 Cal. 249, 16 Pac. 900; Heilbron v. 500, 108 Am. St. Rep. 697, 93 N. W. Fowler etc. Canal Co., 75 Cal. 426, 7 713, 60 L. R. A. 910; Watts v. Am. St. Rep. 183, 17 Pac. 535; Con- Spencer, 51 Or. 262, 94 Pac. 39; Ana- kling v. Pacific etc. Co., 87 Cal. 296, heim W. Co. v. Semi-Tropic Co., 64 25 Pae. 399; Walker v. Emerson, 89 Cal. 185, 192, 30 Pac. 623; Last 588 Ch. 25. LOSS OF EIGHT. (3d ed.) 637 open to appropriation, and prescription is unnecessary to give a right. 15 Between tenants in common, before possession of one, or a sale by him, becomes adverse to the others, there must be an actual ouster and notice or knowledge of the adverse intention. 18 There can be no adverse use by lower claimants against those above, since a use below can in no way interfere with the flow above (omitting cases of "backing" the water and flooding) ; it is no possible invasion of the right of the upper owner. Lower use is not adverse. 17 Nor is the use of a surplus above the appropriate!' adverse to him, since it leaves the amount to which he is entitled uninvaded. 18 No right by adverse use can hence result from use below, or from use of surplus above. 19 There can be no adverse use (between appropriators) for the same reason, where during the prescriptive period, there has been water enough for all users. 20 (Quaere, whether this applies to adverse use against a riparian proprietor, the invasion of whose right does not depend upon the fact that he has enough for his present use.) "A mere scrambling possession of the water or the obtaining of it by force or fraud 21 gives no prescriptive right; nor can this right be acquired if, during the time in which such right is claimed to have accrued, there has been an abundant sup- ply of water in the stream or river for other claimants. " 22 In Chance Co. v. Heilbron, 86 Cal. 20, 26 18 Fifield v. Spring Valley etc. Pac. 523; Featherman v. Hennessey Works, 130 Cal. 552, 62 Pac. 1054; (Mont. 1911), 113 Pac. 751. Faulkner v. Rondoni, 104 Cal. 140, 37 15 Supra, sec. 481, beneficial use. Pac. 883. 16 Smith v. North Canyon etc. Co., 19 See, also, 93 Am. St. Rep. 717, 16 Utah, 194, 52 Pac. 283; Beers v. note; Talbott v. Butte etc. Co., 29 Sharpe, 44 Or. 386, 75 Pac. 717; Mont. 17, 73 Pac. 1111; Norman v. Oliver v. Burnett -(1909), 10 Cal. App. Corbley, 32 Mont. 195, 79 Pac. 1059. 403, 102 Pac. 223. 20 Smith v. Duff (1909), 39 Mont. 17 Hargrave v. Cook, 108 Cal. 72, 374, 133 Am. St. Rep. 582, 102 Pac. 41 Pac. 18, 30 L. R. A. 390 ; Bathgate 981; Miller v. Wheeler (1909), 54 v. Irvine, 126 Cal. 135, 77 Am. St. Wash. 429, 103 Pac. 641; Jobling v. Rep. 158, 58 Pac. 442; Cave v. Tyler, Tuttle, 75 Kan. 351, 89 Pac. 699, 9 133 Cal. 566, 65 Pac. 1089; Davis v. L. R. A., N. S., 960; Egan v. Estrada, Martin, 157 Cal. 657, 108 Pac. 866; 6 Ariz. 248, 56 Pac. 721; Meng v. Perry v. Calkins (Cal.), 113 Pac. 136; Coffey, 67 Neb. 500, 108 Am. St. Rep. Harrington v. Demarris., 46 Or. Ill, 697, 93 N. W. 713, 60 L. R. A. 910; 77 Pac. 605, 82 Pac. 14, 1 L. R. A., Watts v. Spencer, 51 Or. 262, 94 Pac. N. S., 756; North Powder Co. v. Coug- 39; Anaheim W. Co. v. Semi-Tropic hanour, 34 Or. 9, 54 Pac. 223; Bow- Co., 64 Cal. 185, 192, 30 Pac. 623; man v. Bowman, 35 Or. 279, 57 Pac. Last Chance Co. v. Heilbron, 86 Cal. 546 ; Beers v. Sharpe, 44 Or. 386, 75 20, 26 Pac. 523. Pac. 719 ; Wimer v. Simmons, 27 Or. 21" Sed qu. 1, 50 Am. St. Rep. 685, 39 Pac. 6; 22 Union etc. Co. v. Dangberg, 81 Hallett v. Davis (1909), 54 Wash. Fed. 73. 326, 103 Pac. 423. 638 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 589 Morris v. Bean 23 it is said that the aid of the statute of limitations has occasionally been invoked with success, but not in cases of a scrambling possession, and the burden is upon the adverse claimant to bring himself within the statute, and the proof must be clear before a prescriptive right will be enforced. To constitute adverse use by a tenant against his landlord there must first be an open repudiation of the tenancy by the tenant, for otherwise he will be estopped to deny his landlord's title, and his holding will not be adverse until such open repudiation of the lease has been made. 24 (3d ed.) 589. 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. 25 "In order to obtain a right by pre- scription it is necessary that during the prescriptive period an action could have been maintained by the party against whom the claim is made. ' ' * Hence, another reason why there can be no right by adverse use from use below, or of the surplus above, the appropriator. As there was no right of action for loss of percolating water under the old rule, no right to it could be acquired by adverse use, under the old rule. 2 No prescriptive right could be had, since no action would lie against the adverse claimant to recover the water during the prescriptive period. 3 Under the new rule giving a right of action in some cases, a prescriptive right may arise. 4 23 (Mont.), 146 Fed. 433. Water Co. v. Richardson, 72 Cal. 598, 24 "When a tenancy is once shown to 14 Pac. 379 ; Fogarty v. Fogarty, 129 exist, in order to set the statute of Cal. 46, 61 Pac. 570. limitations running in favor of the l Chessman v. Hale, 31 Mont. 577, tenant desiring to avail himself of it, 79 Pac. 256, 68 L. R. A. 410, 3 Ann. to acquire title by adverse possession Gas. 1038; accord, Perry v. Calkins he must openly and explicitly disclaim (Cal. 1911), 113 Pac. 136; Smith v. and disavow any and all holding under Duff (1909), 39 Mont. 374, 133 Am. his former landlord; and, further, he St. Rep. 582, 102 Pac. 981; Davis v. must unreservedly and steadily assert Chamberlain, 51 Or. 304, 98 Pac. 154; that he himself is the owner of the North Powder Co. v. Coughanour, 34 true title, all of which must be brought Or. 9, 54 Pac. 223 ; Wimer v. Sim- home to the knowledge of the rightful mons, 27 Or. 1, 50 Am. St. Rep. 685, owner." Coquelle etc. Co. v. Johnson, 39 Pac. 6; Boyce v. Cupper, 37 Or. 52 Or. 549, 132 Am. St. Rep. 716, 98 256, 61 Pac. 642; Anderson v. Bass- Pac. 132, citing Nessley v. Ladd, 29 man (C. C.), 140 Fed. 10. Or. 354, 45 Pac. 904. Compare Swift 2 Hanson v. McCue, 42 Cal. 303, 10 v. Goodrich, 70 Cal. 103, 1 Pac. 561. Am. Rep. 299. 25 Hanson v. McCue, 42 Cal.. 303, 3 Crescent etc. Co. v. Silver etc. 10 Am. Rep. 299; Montecito etc. v. Co., 17 Utah, 444, 70 Am. St. Rep. Santa Barbara, 144 Cal. 578, at 597, 810, 54 Pac. 244. 77 Pac. 1113; but see Alhambra etc. * Infra, sec. 1170. 590 Ch. 25. LOSS OF RIGHT. (3d ed.) 639 (3d ed.) 590. Payment of Taxes. Statutes usually require the claim- ant to real estate by adverse use to have paid the taxes thereon during the prescriptive period. 5 This applies also to water-rights, as they are real estate. 6 In construing this rule, the adverse claim- ant is favored. If no taxes were assessed, the rule is inoperative. 7 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. 8 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. 9 Where an irrigation ditch across defendant's land which plaintiff claimed the use of by adverse user was not assessed apart from the land, or at all, payment of taxes by plaintiff was not necessary to establish adverse user ; and since an easement need not be assessed apart from the land, the burden was on defendant to show that the ditch was so assessed if he claimed that payment of taxes by plaintiff was necessary to establish adverse user. 10 If the owner pays the taxes on the last year of the prescriptive period, this stops the running of prescription, although the trespasser paid during the other four years, and the assessment was made in the fifth year also. 11 If the owner pays first, a duplicate payment by the trespasser is of no avail to the latter. 12 The requirement that taxes be paid is purely statutory, and does not exist at common law. 13 5 E. g., Cal. Code Civ. Pfoe., see. 13 "it appears that this ditch has 325; Colo. M. A. S., sec. 2923; Ariz. never been assessed separately from Rev. Stats. 1901, sec. 2935 et seq.; the land, but that the Puente Rancho Idaho Rev. Stats. 1887, sec. 4043. was always assessed wholly to Baldwin 6 Frederick v. Dickey, 91 Cal. 358, and that he paid the taxes thereon. It 27 Pac. 742 ; Swank v. Sweetwater Irr. is urged, in view of these circum- Co., 15 Idaho, 353, 98 Pac. 297. stances, that under section 325, Code 7 Heilbron v. Last Chance Water of Civil Procedure, title by preserip- etc. Co., 75 Cal. 117, 17 Pac. 65; tion could not have been acquired by Oneto v. Restano, 78 Cal. 374, 20 Pac. plaintiffs and cross-defendants. A 743 ; Hesperia etc. Co. v. Rogers, 83 sufficient answer to this claim is that Cal. 10, 17 Am. St. Rep. 202, 23 Pac. their title by prescription was complete 196. prior to the amendment of section 325, 8 Ibid. Code of Civil Procedure, making the 8 Coonradt v. Hill, 79 Cal. 587, 21 payment of taxes an element of ad- Pac. 1099. verse possession, which amendment was 10 Silva v. Hawn, 10 Cal. App. 544, enacted in 1878, and that such.amend- 102 Pac. 952. ment therefore has no application." 11 Glowner v. Alvarez, 10 Cal. App. Strong v. Baldwin, 154 Cal. 150, 129 194, 101 Pac. 432. Am. St. Rep. 149, 97 Pnc. 178, citing 12 Cavanaugh v. Jackson, 99 Cal. Lucas v. Provines, 130 Cal. 270, 62 672, at 675, 676, 34 Pac. 509. Pac. 509. 640 (3ded.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 591 (3d e 41 L - Ed - 369 - 781. 8 Const., art. 2, sec. 15. 606 Ch. 26. EMINENT DOMAIN. (3d ed.) 649 by a board of commissioners, of not less than three freeholders, or by jury, when required by the owner of the property," etc.* (3d cd.) 606. What is a Public Use. While the law of eminent domain applies only to takings for a public use, there are two lines of decisions upon what is a public use. The older one is that a public use of water must be for the use of the general pub- lic, the taking being by its official representatives or someone standing in the position of a public agent, and not for particular individuals or estates. Such seems to be the rule in California. 10 Consequently, in California, water cannot thus be taken to run a group of mines, as it is merely private enterprise. 11 For irri- gation, under this view, water must be condemned, if at all, only by corporations or others who will (and after taking it must) 12 supply it to the public in general, and not merely for their own use. Such corporations, then, stand in the position of an agent of the public. 13 Lux v. Haggin says: "It must always be borne in mind that under the codes no man, or set of men, can take another's property for his own exclusive use. Whoever attempts to condemn the private right must be prepared to furnish (to the extent of the water he consumes and pays for) every individual of the community or communities, farming neighborhood or farming neighborhoods, to which he conducts it, the consumers being required to pay reasonable rates, and being subjected to reasonable regulations." 9 Some other examples are, inter 124 Cal. 597, 57 Pae. 585; Leavitt v. alia: "Private property may be taken Lassen Irr. Co., 157 Cal. 82, 106 Pac. for public use, but not until a just 404. compensation, to be ascertained in a H Consolidated etc. Co. v. Central manner prescribed by law, shall be etc. By., 51 Cal. 269, 5 Morr. Min. paid therefor." Idaho Const., art. 1, Eep. 438; Cummings v. Peters, 56 sec. 14. See Ariz. Const., art. 2, sec. Cal. 593; Lorenz v. Jacob, 63 Cal. 17; N. M. Const., art. 2, sec. 20; Okl. 73; Dower v. Richards, 73 Cal. 480, Const., art. 2, sec. 24; Utah Const., 15 Pac. 105; Amador etc. Co. v. Do art. 1, sec. 22. Witt, 73 Cal. 485, 15 Pac. 74; County In the civil law the principle also O f Sutter v. Nichol (1908), 152 Cal. exists, though not having the binding 688, 93 Pac. 872, 15 L. R. A., N. S., force of a constitution: "No one can 616, 14 Ann. Gas. 900. be despoiled of his property, nor of 12 Infra, sec. 1280. his rights, not even on account of 13 State ex rel. Wilson v. Superior public utility, without first having Court, 47 Wash. 397, 92 Pac. 271; given to him proper indemnity." Colorado etc. Co. v. McFarland et al. Eschriche Aguas, sec. 2. (Tex. Civ. App.), 94 S. W. 400; Bor- 10 Hilclreth v. Montecito etc. Co., den v. Tres Palacios etc. Co., 98 Tex. 139 Cal. 22, 72 Pac. 395; Merrill v. 494, 107 Am. St. Rep. 640, 86 S. W. Southside Irr. Co., 112 Cal. 426, 44 11; Lux v. Haggin, 69 Cal. 255, 10 Pae. 720; Los Angelea v. Pomeroy, Pac. 674. 650 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 606 The California constitution provides that sale, rental, or distri- bution of water is a public use. 14 The California legislature has provided 15 for various cases of eminent domain proceedings, among them the following: "Canals, ditches, dams, pondings, flumes, aqueducts and pipes, for irriga- tion, public transportation, supplying mines and farming neigh- borhoods with water, and draining and reclaiming lands," etc. The court has upheld the taking by irrigation districts 16 and by irrigation companies, under the provision allowing the taking for "farming neighborhoods." 17 What constitutes a farming neigh- borhood was considered in Lux v. Haggin, saying: "The words 'farming neighborhoods' are somewhat indefinite; the idea sought to be conveyed by them is more readily conceived than put into accurate language. Of course 'farming neighborhood' implies more than one farm ; but it would be difficult to say that any cer- tain number is essential to constitute such a neighborhood. The vicinage may be nearer or more distant, reference being had to the populousness or sparseness of population of the surrounding country ; but the farmers must be so near to each other relatively to the surrounding settlers as to make what in popular parlance is known as a 'farming neighborhood.' A very exact definition of the word is not, however, of paramount importance. The main purpose of the statutes is to provide a mode by which the State, or its agent, may conduct water to arable lands where irrigation is a necessity, on payment of due compensation to those from whom the water is diverted. The same agent of the State may take water to more than one farming neighborhood." In 1911 a statute in general terms declares irrigation to be a public use. 17a The taking for a public water supply in California 18 was up- held. 19 14 Art. 14, see. 1. See infra, sec. Lindsay etc. Co. v. Mehrtens, 97 Cal. 1264. 670, 32 Pac. 802; Fallbrook Irr. Dist. 15 Cal. Code Civ. Proe., sec. 1238. v. Bradley, 164 U. S. 112, 17 Sup. Ct. Copied substantially in several other Rep. 56, 41 L. Ed. 369. States; e. g., Idaho Rev. Stats. 1887, i?a Stats. 1911, c. 719. sec. 5210, subd. 3, as amended in Laws I 8 Under Code of Civil Procedure, 190.3, p. 204; Idaho Const., art. 1, sec. 1238. eec. 14. 19 St. Helena etc. Co. v. Forbes, 62 16 See the chapter on "Irrigation Cal. 182, 45 Am. Rep. 659; McCrary Districts," infra, c. 58. v. Baudry, 67 Cal. 120, 7 Pac. 264; 17 Lux v. Haggin, 69 Cal. 255, 10 Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. 674; and in Aliso etc. Co. v. Pac. 197. See Cal. Const., art. 14, Bake*, 95 Cal. 268, 30 Pac. 537; sec. 1. 606 Ch. 26. EMINENT DOMAIN. (3d ed.) 651 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 unconstitutional. 20 The differ- ence 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. Where general public supply was intended, the following, for example, have been held public uses, for which the power of eminent domain may be exercised : Irrigation canals ; 21 electric light, heat or power plant; 22 courthouses, jails, schoolhouses, city halls, public markets, almshouses, public parks, boulevards, com- mons or pleasure grounds, and places of historic interest, a con- vention hall. 23 But water supply to sawmills to generate steam in boilers for manufacturing is held not a public use ; 24 and quaere whether a municipality can condemn water-rights on a stream for the purpose of polluting it with sewage. 25 What is a public use is always ultimately a judicial question ; but a legislative declaration that a certain use is public is pre- sumed to be correct, and will not be overturned unless it clearly appears to be without reasonable foundation. 1 Where the in- tended use is for the government, the presumption that it is a public use is stronger than when the proposed supply to or ser- vice of the public is to be made by a private corporation under delegated right of eminent domain. 2 20 Cases cited supra. 24 State ex rel. Shropshire v. Su- 21 Portneuf Irr. Co. v. Budge perior Court (1909), 51 Wash. 386, (1909), 16 Idaho, 116, 100 Pac. 1046. 99 Pac. 3. 22 Tuolumne etc. Co. v. Frederick, . _ 2 * 7" la f 8 <* T W in ^aja v. Stubbs, 13Cal.App.498, 110 Pac. 134; North- 15 Idaho, 68 96 Pac. 195 ern Cal. etc. Co. v. Stacher/ 13 Gal. p l ^ v " H ^ in ' 6 Gal. 255, 10 P674 * on * c ' App. 404, 109 Pac. 896; Walker v. J K n ' */ aiTol+o T> rv fr.i \ in TTWI e * c - Co., 45 Neb. 884. 50 Am. St. Eep. Shasta Power Co. (Cal.), 160 Fed. _ ' w _ ' _ R . ^ R^Q R7 P P A fifiO StArnhprcrpr v 8O, O4 IN. W . A1A, 6V Lt. K. A. 8CUS , 859 87 C. u A 660 bternberger v. g ex Manhattan etc> Co> v . Ston etc. Co., 45 Colo. 401 102 Pac. B&ru ^ 168; Holhster v. State, 9 Idaho 8, ( . . ' 2 ^ Qn ^ c ,1 Pac 541 See, also 21 L. E. A Coole g on Const> Lim 7th ed ^ ' ?77 ; n T e r ; -, : N fl r ? ' i I ' **gto v. Stogsdale. 123 Ind. 372, 24 p. 456; United States Geological Sur- N ^ 135, | L . R. A . 58 . Un ted vey Water Supply Paper No 238. gtateg y ^ ett bu Co ^ n g But see contra, Minnesota Co v 66g lfi g ^ ^ f Kaodnching Co 97 Minn 444 107 5?6 ' ^gf Moore ^ 3 Ind> Ter> 712 N. W. 410, 5 L. R. A., N. S., 638, 7 64 g w 585) Ann. Cas 1182. See, also, infra, sec. 2 u ni i ed S ; tate8 v . Gettysburg Co., 609, note 21. 160 n g _ 66gi 16 gup Ct Rep ^ ^ 23 State ex rel. Manhattan etc. Co. 40 L. Ed. 576; State ex rel. Man- v. Barnes, 22 Okl. 191, 97 Pac. 1000, hattan etc. Co. v. Barnes, 22 Okl. 191, reviewing authorities. 97 Pac. 1000. 652 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 607 Cases holding that, to constitute a public use, the use must be for, or available to, the general public, and that all the public, or a class thereof, must have a right to share directly in the use, are given herewith. 3 This is again considered in connection with the distribution of water to public uses. 4 (3d ed.) 607. Private Enterprise as Public Use. On the other hand, there is the second view, that the right to actual use by the public or a class thereof is not necessary, but that the promotion of a great industry, such as mining in some States, irrigation in others, may, under peculiar local conditions, be of sufficient interest to the public at large to constitute the taking of another man's property by a private person for his individual enterprise alone, a public use. Public use is considered more from the view of "public-spirited private use" than of actual use by the public. The leading case in support of this doctrine is the recent decision of the supreme court of the United States in Clark v. Nash, 5 affirming the Utah case of Nash v. Clark. 6 The supreme court of Utah said: "One class of authorities, in a general way, holds that by public use is meant a use by the public or its agencies that is, the public must have the right to the actual use in some way of the property appropriated; whereas the other line of decisions holds that it is a public use within the meaning of the law when the taking is for a use that will promote the public 3 As cited in Helena etc. Co. v. River Power Co., 39 Wash. 648, 82 Spratt, 35 Mont. 108, 88 Pac. 775, 8 L. Pac. 150, 2 L. R. A., N. S., 842, 4 R. A., N. S., 567, viz.: Borden v. Ann. Cas. 987; State v. Superior Trespalaeios Rice etc. Co. (Tex. Civ. Court, 42 Wash. 660, 85 Pac. 666. App.), 82 S. W. 461; Pittsburg etc. See, also, State ex rel. Wilson v. R. Co. v. Benwood Iron Works, 31 W. Superior Court, 47 Wash. 397, 92 Pac. Va. 710, 8 S. E. 453, 2 L. R. A. 680; 271; Hildreth v. Montecito W. Co., Varner v. Martin, 21 W. Va. 534; 139 Cal. 22, 72 Pac. 395; Leavitt v. Fallsburg Power Mfg. Co. v. Alex- Lassen Irr. Co., 157 Cal. 82, 106 Pac. ander, 101 Va. 98, 99 Am. St. Rep. 404; Price v. Riverside etc. Co., 56 855, 43 S. E. 194, 61 L. R. A. 129; Cal. 431; McCrary v. Beaudry, 67 In re Barre Water Co., 72 Vt. 413, Cal. 120, 7 Pac. 264; Crow v. San 48 Atl. 653 ; Avery v. Vermont Elec- Joaquin W. Co., 130 Cal. 309, 62 Pac. trie Co., 75 Vt. 235, 98 Am. St. Rep. 562, 1058. 818, 54 Atl. 179, 59 L. R. A. 817; 4 Infra, sec. 1260 et seq. Berrien Springs Water Co. v. Berrien 5 198 U. S. 361, 25 Sup. Ct. Rep. Circuit Judge, 133 Mich. 48, 103 Am. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. St. Rep. 438, 94 N. W. 379; Brown 27 Utah, 158, 101 Am. St. Rep. v. Gerald, 100 Me. 351, 109 Am. St. 953, 75 Pac. 371, 1 L. R. A., N. S., Rep. 526, 61 Atl. 785, 70 L. R. A. 472 ; 208. State ex rel. Tacoma etc. Co. v. White 608 Ch. 26. EMINENT DOMA1TT. (3d ed.) 653 interest, and which use tends to develop the natural resources of the commonwealth." And held that a Utah statute 7 providing for the enlargement by condemnation of another's ditch to con- vey water to your land for irrigation is constitutional. 8 This was affirmed by the supreme court of the United States in Clark v. Nash, 9 as follows: (3d ed.) 608. Clark v. Nash. 10 In the course of the statement of the case by Mr. Justice Peckham, it is said: "This action was brought by the defendant in error, Nash, to condemn a right of way, so called, by enlarging a ditch for the conveying of water across the land of plaintiffs in error, for the purpose of bringing water from Fort Canyon Creek, in the county and State of Utah, which is a stream of water flowing from the mountains near to the land of the defendant in error, and thus to irrigate his land That the said waters of said Fort Canyon Creek cannot be brought upon the said plaintiff's said land by any other route except by and through the ditch of the defendants, owing to the canyon through which said ditch runs being such as to only be possible to build one ditch." Defendants refused to give permission. The ditch was to be widened only one foot and the whole damage would be forty dollars ($40) . Mr. Justice Peckham delivered the opinion of the court, which follows in full : u "The plaintiffs in error contend that the proposed use of the enlarged ditch across their land for the purpose of conveying water to the land of the defendant in error alone is not a public use, and that, therefore, the defendant in error has no constitu- tional or other right to condemn the land, or any portion of it, belonging to plaintiffs in error, for that purpose. They argue that, although the use of water in the State of Utah for the pur- poses of mining or irrigation or manufacturing may be a public 7 Utah Eev. Stats., 1898, sec. 1278; Schilling v. Eominger, 4 Colo. 100; Comp. Laws 1907, sec. 1288x22; Laws Ellinghouse v. Taylor, 19 Mont. 462, 1905, p. 160. 48 Pac. 757; Fallbrook Irr. Co. v. 8 Belying on Dayton Min. Co. v. Bradley, 164 U. S. 112, 17 Sup. Ct. Seawell, 11 Nev. 394, 5 Morr. Min. Eep. 56, 41 L. Ed. 369. Rep. 424, holding similarly as to a 9 198 U. S. 361, 25 Sup. Ct. Rep. right of way to haul material to 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. one's mine; and citing Oury v. Good- 10 198 U. S. 361, 25 Sup. Ct. Rep. win, 3 Ariz. 255, 26 Pac. 376; De 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. Graffenried v. Savage, 9 Colo. App. U Clark v. Nash, 198 U. S. 361, 25 131, 47 Pac. 902 ; Yunker v. Nichols, Sup. Ct. Rep. 676, 49 L. Ed. 1085, 4 1 Colo. 551, 8 Morr. Min. Rep. 64; Ann. Cas. 1171. 654 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 608 use where the right to use it is common to the public, yet that no individual has the right to condemn the land for the purpose of conveying water in ditches across his neighbor's land, for the purpose of irrigating his own land alone, even where there is, as in this case, a State statute permitting it. "In some States, probably in most of them, the proposition con- tended for by the plaintiffs in error would be sound. Bui whether a statute of a State permitting condemnation by an in- dividual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and, therefore, & valid enactment, may depend upon a number of con- siderations relating to the situation of the State and its possibili- ties for land cultivation, or the successful prosecution of its min- ing or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the State, where the right of condemnation is asserted under a State statute, we are always, where it can fairly be done, strongly inclined to hold with the State courts, when they uphold a State statute providing for such condemnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an indi- vidual, where, in the absence of such facts, the use would clearly be private. Those facts must be general, notorious, and acknowl- edged in the State, and the State courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the State which, in all probability, would flow from a denial of its validity. These are matters which might properly be held to have a mate- rial bearing upon the question whether the individual use pro- posed might not in fact be a public one. It is not alone the fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is material ; other facts might exist which are also material such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for that purpose. The general situa- 608 Ch. 26. EMINENT DOMAIN. (3ded.)655 tion and amount of the arid land or of the mines themselves might also be material and what proportion of the water each owner should be entitled to ; also the extent of the population living in the surrounding country, and whether each owner of land or mines could be, in fact, furnished with the necessary water in any other way than by the condemnation in his own behalf, and not by a company, for his use and that of others. "These, and many other facts not necessary to be set forth in detail, but which can easily be imagined, might reasonably be re- garded as material upon the question of public use, and whether the use by an individual could be so regarded. With all of these the local courts must be presumed to be more or less familiar. This court has stated that what is a public use may frequently and largely depend upon the facts surrounding the subject, and we have said that the people of a State, as also its courts, must, in the nature of things, be more familiar with such facts, and with the necessity and occasion for the irrigation of the lands, than can anyone be who is a stranger to the soil of the State, and that such knowledge and familiarity must have their due weight with the State courts. 12 It is true that in the Fallbrook case the ques- tion was whether the use of the water was a public use when a corporation sought to take land by condemnation under a State statute, for the purpose of making reservoirs and digging ditches to supply landowners with the water the company proposed to obtain and save for such purpose. This court held that such use was public. The case did not directly involve the right of a sin- gle individual to condemn land under a statute providing for that condemnation. "We are, however, as we have said, disposed to agree with the Utah court with regard to the validity of the State statute which provides, under the circumstances stated in the act, for the con- demnation of the land of one individual for the purpose of allow- ing another individual to obtain water from a stream in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless. "But we do not desire to be understood by this decision as ap- proving of the broad proposition that private property may be taken in all cases where the taking may promote the public inter- est and tend to develop the natural resources of the State. We 12 Citing Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 159, 17 Sup. Ct. Kep. 56, 41 L. Ed. 369, 388. 656 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the condi- tions already stated, we are of opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the defendant in error, if any there are, might share in the use of the water by themselves taking the same proceedings to obtain it, and we do not think it necessary, in order to hold the use to be a public one, that all should join in the same proceeding, or that a company should be formed to obtain the water which the individual land- owner might then obtain his portion of from the company by pay- ing the agreed price, or the price fixed by law. "The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous States of the West that they are in the States of the East. These rights have been altered by many of the Western States by their constitutions and laws, because of the totally different circum- stances in which their inhabitants are placed, from those that exist in the States of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and prosperity of those States, arising from mining and the culti- vation of an otherwise valueless soil, by means of irrigation. This court must recognize the difference of climate and soil, which render necessary these different laws in the States so situated. ''We are of opinion, having reference to the above peculiarities which exist in the State of Utah, that the statute permitting the defendant in error, upon the facts appearing in this record, to enlarge the ditch, and obtain water for his own land, was within the legislative power of the State, and the judgment of the State court affirming the validity of the statute is therefore affirmed." (Mr. Justice Harlan and Mr. Justice Brewer dissented.) The supreme court of the United States affirmed Clark v. Nash in Strickley v. Highland Boy Co., 13 and applied the same rule to mining in Utah. 13 200 U. S. 527, 26 Sup. Ct. Rep. 51 L. Ed. 499; Burley v. United 301, 50 L. Ed. 581, 4 Ann. Cas. 1174. States (1910), 179 Fed. 1, 102 C. C. See, also, Bacon v. Walker (1906), A. 429. 204 U. S. 315, 27 Sup. Ct. Rep. 289, 609 Ch. 26. EMINENT DOMAIN. (3ded.) 657 (3d eel) 609. Same State Statutes and Decisions. Statutes similar to that upheld in Clark v. Nash for building ditches on another's land, or enlarging existing ditches, or carrying on other work for one's private water supply alone, are contained in numerous Western States. 14 Other statutes and constitutions usually de- clare the "use of water" a public use in such general terms that private enterprise would seem to be within them. Some such stat- utes are referred to in the note which the reader may consider in examining the question. 15 Besides these statutes providing for condemnation, there are others elsewhere cited providing for such work even without condemnation or payment of compensation, held invalid on that account, but which may possibly hereafter be upheld by construing them as providing for condemnation. 16 The rule of Clark v. Nash that public interest in the prosperity of an industry may, under peculiar local conditions, constitute private enterprise a public use, has been applied, under statutes 14 Colorado. Colo. Const., art. 2, sec. 14, saying: "That private prop- erty shall not be taken for private use except for private ways of necessity and except for reservoirs, drains, flumes or ditches on or across the lands of others, for agricultural, min- ing, milling, domestic, or sanitary pur- poses." M. A. S., 2261, 2262, 2263 (enlargement). See, also, M. A. S. 2256 et seq.; Rev. Stats. 1908, sees. 3167-3174; Gen. Stats., sees. 1712- 1721; Gen. Stats., sees. 1373-1376; Eev. Stats. 363; Laws 1861, p. 67; Laws 1870, p. 158; Laws 1879, p. 95; Laws 1881, pp. 161, 164; Const., art. 16, see. 7. Idaho. McLean's Idaho Rev. Codes, sees. 3303-3305; Laws 1899, p. 380, sees. 10, 14; Eev. Stats. 1887, sees. 3181, 3184; 11 Terr. Sess. (1881) 271. Montana. Civ. Code, sec. 1894; Comp. Stats. 1887, sec. 1240. Nebraska. Cobbey's Ann. Stats., sees. 6730, 6750, 6793; Laws 1889, c. 68, p. 504, sec. 3. North Dal ota. Stats. 1909, p. 179; Comp. Laws 1887, sec. 2030. Oklalioma. See Const. 1907, art. 2, see. 23. Oregon. Stats. 1891, p. 52, sees. 12, 13. Stats. 1911, c. 238, p. 421 (en- larging another's ditch). Water Rights 42 South Dakota. Stats. 1907, c. 108, sec. 3 (semble). Utah. See the statute cited in Clark v. Nash. Washington. Laws 1899, c. 131, p. 261. (See State ex rel. Galbraith v. Superior Court (Wash.), 110 Pac.- 429.) The Washington constitution, section 16, article 1, substantially copies Colorado Constitution, article 2, section 14, supra. Wyoming. Laws 1907, e. 52, as amd. 19Q9, c. 96. This list is probably not complete. 15 N. M. Stats. 1907, p. 71, sees. 3, 54; N. D. Stats. 1905, c. 34, sec. 3; Okl. Stats. 1906, p. 274, sec. 2; Utah Stats. 1905, c. 108, sec. 50; Wash. Const., art. 21, see. 1. In Pierce's Code, section 5122, "use of water at all times" declared a public use. 16 Statutes cited supra, sec. 223, enacted to follow Yunker v. Nichols. But see Starritt v. Young, 14 Wyo. 146, 116 Am. St. Rep. 994, 82 Pac. 946, 4 L. R. A., N. S., 169, holding that a statute which is invalid in pro- viding for ditch-building without no- tice or the other requisites of con- demnation cannot be made valid by construing into it a condemnation provision which the legislature did not put there. 658 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. . 609 similar to those cited, to mining, in Alaska, Nevada and Utah. 17 It has been applied to irrigation in Arizona, Colorado, Idaho, Montana, Nebraska, Texas, Utah, and Washington. 18 It has been applied in Idaho to taking land for a storage reservoir to float logs to a private sawmill ; 19 in Montana, 20 to flooding lands to obtain water-power by an electric company supplying mines and smelters (as well as supplying water, for irrigation, by the same company). Condemnation for power plants has, in the West, usually been rested on this view, though, when the company is bound to supply all the public to the extent of its capacity, it would also be a public use under the narrower view. 21 17 Alaska. Miocene D. Co. v. Jacob- sen, 146 Fed. 680., 77 C. C. A. 106. But see Van Dyke v. Midnight Sun Co. (Alaska), 177 Fed. 90, 100 C. C. A. 503, saying in a mining case (dictum) : "The diversion of the waters of Big Hurrah Creek by the plaintiff was not for any public use, but solely for its own purposes. If so, as a matter of course, the plain- tiff had no right of condemnation." Colorado. See Snyder v. Colorado etc. Co. (C. C. A.), 181 Fed. 62 (dic- tum that right of way for a private mining ditch may be condemned). Montana. See Kipp v. Davis etc. Co. (Mont.), 110 Pac. 237. Nevada. Dayton Min. Co. v. Sea- well, 11 Nev. 394, 5 Morr. Min. Rep. 424. Utah. Strickley v. Highland Boy Co., 200 U. S. 527, 26 Sup. Ct. Rep. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174. 18 Arizona. Oury v. Goodwin, 3 Ariz. 255, 26 Pac. 376. Colorado. Kaschke v. Canfield, 46 Colo. 60, 102 Pac. 1061; Yunker v. Nichols, 1 Colo. 551, 8 Morr. Min. Rep. 64, semble; Schilling v. Romin- ger, 4 Colo. 100, semble; Schneider v. Schneider, 36 Colo. 518, 86 Pae. 347, semble; Tripp v. Overacker, 7 Colo. 73, 1 Pac. 695; Downing v. More, 12 Colo. 316, 20 Pac. 766; Sand Creek Co. v. Davis, 17 Colo. 326, 29 Pac. 742 ; Patterson v. Brown etc. Co., 3 Colo. App. 511, 34 Pac. 769. See supra, see. 223, appropriation on private land. Idaho. Portneuf Irr. Co. v. Budge, 16 Idaho, 116, 100 Pac. 1046 (dictum only). Montana. Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757. In Prentice v. McKay, 38 Mont. 114, 98 Pac. 1081, it is said (dictum), in a case where a right of way was sought for individual and not general supply: "Since the use of water is declared by the con- stitution of this state (article 3, sec- tion 15) to be a public use, the right to appropriate water on the land of another may be acquired by condem- nation proceedings." Nebraska. Semble, Crawford etc. Co. v. Hathaway, 67 Neb. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889; Cline v. Stock, 71 Neb. 70, 102 N. W. 265; McCook Irr. Co. v. Crews, 70 Neb. 115, 102 N. W. 249. See Paxton Co. v. Farmers' Co., 45 Neb. 885, 50 Am. St. Rep. 585, 64 N. W. 343,.29 L. R. A. 853. Texas' Consider Mundy v. Hart (Tex. Civ. App.), Ill S. W. 236. Utah.-^Claik v. Nash, supra. Washington. State ex rel. Gal- braith v. Superior Court (Wash.), 110 Pac. 429 ; Weed v. Goodwin, 36 Wash. 31, 78 Pac. 36. (But compare State ex rel. Wilson v. Superior Court, 47 Wash. 397, 92 Pac. 271.) 19 Potlatch etc. Co. v. Peterson, 12 Idaho, 769, 118 Am. St. Rep. 233, 88 Pac. 426. Contra, see State ex rel. Wilson v. Superior Court, 47 Wash. 397, 92 Pac. 271. 20 Helena Power Co. v. Spratt, 35 Mont. 108, 88 Pac. 773, 8 L. R. A., N. S., 567, 10 Ann. Cas. 1055. 21 See Salt Lake City v. Salt Lake City W. & E. P. Co., 25 Utah, 441, 71 Pac. 1071 ; Hollister v. State, 9 Idaho, 651, 71 Pac. 339 ; Denver P. & I. Co. v. Denver & R. G. R. Co., 30 Colo. 204, 69 Pac. 568, 60 L. R. A. 383. See, also, supra, sec. 606, note 22. 609 Ch. 26. EMINENT DOMAIN. (3d ed.) 659 In a recent Idaho case 22 it is said: "The decisions under many State constitutions, therefore, are of little value as precedents for cases arising under constitutions like that of Idaho, Colorado, and other Western States, which make the character of the use, whether strictly public or otherwise, the criterion of the right to exercise the power. There are two well-marked and conflicting lines of decisions by the courts in dealing with the constitutional rights to exercise the power of eminent domain. One class of those decisions is represented by Brown v. Gerald, 23 which draws a sharp distinction between 'public use' and 'public benefit' and guards the private rights of property against the assertion of the power of eminent domain for public benefits as distinguished from public use. The other line of decisions is represented by Nash v. Clark, 24 which case was taken by error to the supreme court of the United States. 25 .... The latter class of cases takes the view that the general welfare and benefit of the public should prevail over private property rights even though the use for which the power of eminent domain is asserted, is not, in a strict sense, a public use, and, as stated in the note to State ex Tel. Tacoma I. Co. v. White River P. Co., 1 'the influence of pecu- liar local conditions and necessities in determining the choice between these two tendencies is plainly discernible.' ' A recent Montana case, 2 relying on Clark v. Nash, says: "The courts of the Western States have,- as a rule, adopted a liberal view of the term 'public use,' and in the main have largely followed the so- called 'Mill Cases' of 'New England." 3 And quoting another Montana case: "The public policy of the Territory and of the State of Montana has always been to encourage in every way the development of the minerals contained in the mountains; and the necessity for adding to its tilled acreage is manifest. This State is an arid country, and water is essential to the proper tillage of its scattered agricultural valleys. With all this in 22 Potlatch etc. Co. v. Peterson, 12 r 39 Wash. 648, 82 Pac. 150, 1 L. Idaho, 769, 118 Am. St. Rep. 233, 88 R. A., N. S., 842, 4 Ann. Cas. 987. Pac. 426. 2 Helena etc. Co. v. Spratt, 35 23 100 Me. 35i, 109 Am. St. Eep. Mont. 108, 88 Pac. 773, 8 L. R. A., 526, 61 Atl. 785, 70 L. R. A. 472. N. S., 567, 10 Ann. Cas. 1055. 24 27 Utah, 158, 101 Am. St. Rep. 3 But as to the New England Mill 953, 75 Pac. 371, 1 L. R. A., N. S., acts see Blackstone Mfg. Co. v. 208, 1 Ann. Cas. 300. Town of Blackstone, 200 Mass. 82, 85 25 Clark v. Nash, 198 U. S. 361, 25 N. E. 880, 18 L. R. A., N. S., 755, Sup. Ct. Rep. 676, 49 L. Ed. 1085, 4 holding that these acts do not rest Ann. Cas. 1174. upon principles of eminent domain. 660 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 609 view, it was expressly declared in our State constitution that the use of water by private individuals for the purpose of irrigating their lands should be a public use." And concludes: "We are largely influenced in so holding by the two decisions of this court hereinbefore referred to, wherein we are already committed to the broad and, as it has sometimes been called, 'statesman -like' view of this question." In the Nebraska cases the taking was by corporations propos- ing general supply and hence a public use within the narrower d-efinition, but the decisions were placed on the broader ground. 4 "The development of a system of irrigation and the appropria- tion and application of the waters of the streams of the State for the purpose, is obviously a work of internal improvement." And again, referring to statutes, "Under these 'Comprehensive provisions the legislature could have intended nothing less than that in the construction and operation of irrigation enterprises private property reasonably necessary for the conduct of the business could be taken and appropriated on due compensation by the exercise of the power and right of eminent domain." A late case in Washington allowed a company, for its own land, to condemn a right of way for its ditch across private land. The company takes water from the Spokane River in Kootenai County, Idaho, five miles east of the Washington-Idaho line, and conveys it nineteen miles to its land holdings in Spokane County, Wash- ington. The court held that the benefit to the public which sup- ports the exercise of the power of eminent domain for purposes of this character is not necessarily the service the parties seek- ing to acquire such rights may be compelled to render to the public in connection therewith, but is the development of the resources of the State, and the increase of its wealth generally, by which its citizens incidentally reap a benefit. It was argued against the condemnor that its purpose was buying up lands in 4 Crawford v. Hathaway, 67 Neb. Parker, 59 Ga. 419; Bradley v. New 325, 108 Am. St. Rep. 647, 93 N. W. York etc. R. Co., 21 Conn. 294; Great 781, 60 L. R. A. 889. Falls Mfg. Co. v. Fernald, 47 N. H. Other decisions adopting this view 456; Talbot v. Hudson, 16 Gray of what constitutes a public use are (Mass.), 417; Olmstead v. Camp, 33 given herewith. As cited in Helena Conn. 532, 89 Am. Dec. 221; Boston etc. Co. v. Spratt, 35 Mont. 108, 88 & Roxbury Mill Co. v. Newman, 12 Pac. 775, 8 L. R. A., N. S., 567, 10 Pick. (Mass.) 467, 23 Am. Dec. 622; Ann. Cas. 1055, viz.: Aldridge v. Tus- Scudder v. Trenton Delaware Falls cumbia etc. R. Co., 2 Stew. (Ala.) 199, Co., 1 N. J. Eq. 694-728, 23 Am. Dee. 23 Am. Dec. 307; Todd v. Austin, 34 756. Conn. 78; Hand Gold Min. Co. v. 610 Ch. 26. EMINENT DOMAIN. (3ded.)661 large tracts in order to sell them, in small holdings, but the court said: "It is utterly immaterial what the purpose of the company was in acquiring the lands or whether it proposes to farm the lands itself or proposes to sell them off in tracts of varying size to others. The fact remains that the company owns the water and owns the lands proposed to be irrigated, and that their irri- gation will promote the public good by a means intended to be fostered by our constitution. Of course it acquired the lands with intent to profit by their use or sale. That is only exercis- ing a right incident to all ownership as any private owner may exercise it." Instead of such a plan being invalid as "specu- lative," it would seem, on the contrary, that it constituted actual supply and distribution to the public who buys the parcels, so as to constitute actual public service, although the court, as already said, treated the case as one of private service. 5 A late Utah case says the principle of Clark v. Nash applies to forcing a prior appropriator to change his apparatus and install appliances such as to permit a taking of surplus water by a later appropriator, provided the latter reimburses the cost of the change. 5 * On the other hand, Clark v. Nash is held not to apply in Wash- ington to takings for private manufacturing purposes, 6 nor in California, for private electric power. 7 (3d ed.) 610. In California. While, as has been said, the actual decisions in California are against this rule, and require a taking by public officials or those in the position of public agents, sup- plying or serving the public or a class thereof, yet there is ground for considering it not concluded. In Lux v. Haggin 8 the court considered it an open question, though somewhat startling, say- ing: "Whether, in any supposable instance, the public has such interest in a use which can be directly enjoyed only by an indi- vidual for his profit, and without any concomitant duty from him to the public, as that the government may be justified in 5 State ex rel. Galbraith v. Superior River Co., 39 Wash. 648, 82 Pac. 150, Court (Wash.), 110 Pac. 429. 2 L. E. A., N. S., 842, 4 Ann. Cas. 5a Salt Lake City v. Gardner 987. (Utah 1911), 114 Pae. 147. There 7 Shasta Power Co. v. Walker, 149 does not seem to have been any statute Fed. 568 ; affirmed in Walker v. so providing, however, in the case. Shasta Power Co., 160 Fed. 856, 87 6 State ex rel. Galbraith v. Superior C. C. A. 660. Court (Wash.), 110 Pac. 429; citing 8 69 Cal. 255, 10 Pac. 674. State ex rel. Tacoma etc. Co. v. White 662 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 610 employing the eminent domain power for the use, as for a public use, is a question somewhat startling, but which is not involved in the decision of the present action. In case further legislation shall be deemed expedient for the distribution of waters to public uses, we leave its validity to be determined after its enactment, if its invalidity shall then be asserted." And elsewhere saying: "It may be that, under the physical conditions existing in some portions of the State, irrigation is not, theoretically, a 'natural want,' in the sense that living creatures cannot exist without it; but its importance as a means of producing food from the soil makes it less necessary, in a scarcely appreciable degree, from the use of water by drinking it. The government would seem to have not only a distant and consequential, but a direct, interest in the use; therefore a public use." Moreover, in Fallbrook Irr. Dist. v. Bradley 9 the supreme court of the United States upheld the taking by California irri- gation districts on this ground and not on the other restricted ground, saying: "On the other hand, in a State like California, which confessedly embraces millions of acres of arid lands, an act of the legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power The fact that the use of the water is limited to the landowner is not, therefore, a fatal objection to this legislation." And in conclusion says: "We have no doubt that the irrigation of really arid lands is a public purpose, and the water thus used is put to a public use." Further, Clark v. Nash was relied on in the Federal court of the circuit in which California lies, 10 which held that under peculiar local conditions (in Alaska) private mining is a use for which a ditch right of way may be condemned. 11 On the other hand, Clark v. Nash was said in one case 12 not to apply to use in California for power purposes, and it should be noted that the constitution only declares the use of water '"for sale, rental or distribution" a public use. 13 9 164 U. S. 117, 17 Sup. Ct. Rep. n Miocene Ditch Co. v. Jacobsen, 56, 41 L. Ed. 369. 146 Fed. 680, 77 C. C. A. 106. 10 Under Alaska Code, e. 22, sec. 12 Shasta Power Co. v. Walker, 149 204, 31 Stats. 522, which is worded Fed. 568, affirmed in Walker v. Shasta very close to the provision of the Power Co., 160 Fed. 856, 87 C. C. A. California Code of Civil Procedure, 660. section 1238, and probably copied is See infra, sec. 1264. See a therefrom. dictum in Logan v. Guichard (Cal., 611 Ch. 26. EMINENT DOMAIN. (3d ed.) 663 (3d ed.) 611. Statement of the Rule of Clark v. Nash. This rule, that private enterprise may constitute a public use, cannot be accu- rately summed up in merely a few words; but from the above the following may be a serviceable summary: The situation of a State and the possibilities and necessities for the successful prose- cution of various industries, and peculiar condition of soil or climate or other peculiarities, being general, notorious and acknowledged in the State so as to be judicially known and exceptionally familiar to the courts without investigation such conditions justify a State court in upholding a statute authoriz- ing the taking of another's private property by one individual for his own enterprise, where it believes, by reason of the above, that such a taking will, through its contribution to the growth and prosperity of the State, constitute a public benefit, and the supreme court of the United States will follow the decision of the State court in such a case. The tendency will be great to say that the rule has by Clark v. Nash become established that private property may now be con- demned for the private use of another; that condemnation is no longer restricted to public use, but that property may be con- demned for a private use. That, however, is far from true. The theory is still that the taking is for a public use, and the private enterprise must be such as, because of pressing and universal necessity growing out of peculiar natural conditions in the State, is inferentially a use for the welfare of the public at large. Where there is no such pressing and universal necessity and no such peculiar natural conditions, the private enterprise will not, under Clark v. Nash, properly constitute a use for which condemnation will lie, as was said by way of dictum in Shasta Power Co. v. Walker. 14 There Clark v. Nash was held inapplicable, to a case in California taking land for a water ditch for purposes of a light and power plant, if compulsory service to the general public is not to be a part of the proposed use, and private service, merely, is primarily intended. 15 March 21, 1911), 114 Pac. 989, that v. Shasta Power Co., 160 Fed. 856, one cannot comdemn a right of way 87 C. C. A. 660. for an irrigation ditch to one's pri- 15 This was said by Judge Wolver- vate farm. ton of the Oregon District, sitting in u 149 Fed. 568, affirmed in Walker California in the absence of Judge Morrow. 664 (3d eel.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 612 As at length set forth in another place, it is only under stat- utes such as that upheld in Clark v. Nash that one may enter another's land to build a ditch or divert water without his con- sent for one's own private enterprise; in the absence of such statute, and notice to the landowner, a hearing, and payment to him of just compensation, no entry on private land will be lawful against the landowner. 16 (3d ed.) 612. Practical Results. In practical results this system of acquiring rights on or over private land for private irrigation by taking another's property on notice, hearing and compensation, seems to the writer one of the most important developments in the water law. Some such matter has been urged from the earliest days in the West, and has hitherto given great difficulty. In early California a statute giving miners a right of entry on private land of agriculturists was held unconstitutional, even though amended to require the giving of a bond for damages ; 17 and the California law has in all ways become settled against any interference by a water user, for merely his own private ends, with land or rights in private hands of another. 18 On the other hand, the early Colo- rado decisions allowed such entry for ditch-building even without compensation, and statutes to that effect have been passed in Colorado and other of the ydunger States. 19 As the courts of even these States are now against such entry under any circum- stances short of the power of eminent domain, 20 the principle of Clark v. Nash becomes important as opening a practical way, by extending the right of eminent domain, to the solution of this difficulty which has existed throughout the history of the water law. The principle is a considerable departure from the individual- istic attitude of the common law, which holds an individual's 16 Supra, sec. 221 et seq. mine under any building or improve- 17 Supra, sec. 85. ment," act of November 7, 1861, Hol- 18 Supra, sees. 221, 259, 498 et seq., lister's Mines of Colorado, 303. It 502. See especially Boggs v. Merced was also strongly urged as to mining Co., 14 Cal. 279, 10 Morr. Min. Rep. in the early days in California, but 334. just as in the California water law,, so 19 Supra, sec. 223 et seq. also in the California mining law, it As in the water law, it also took never took hold, and was finally and hold in the early Colorado mining once for all disposed of by Judge law, a statute having enacted that Field in Boggs v. Merced Co., 14 Cal., one may, upon securing the owner at 379, 10 Morr. Min. Rep. 334. against damage, "have the right to 2( > Supra, sec. 224. 613 Ch. 26. EMINENT DOMAIN. (3d ed.) 665 property inviolate against any other single individual, and marks the tendency of the times to adopt more and more the communal attitude of the civil law as noted in the next section. Especially is this tendency strong in the law of waters, which is in its nature a thing intimately affecting many users from a common source, and in which the common law of riparian rights is itself a cor- relative (as opposed to an individualistic) system. (3d ed.) 613. Conditions Imposed. There is plenty of room for cau- tion in applying the principle. What constitutes "public interest" or "public benefit" may be very difficult to determine in actual application, 21 especially when the public has no share in the actual use. If pressed too far, in the development of their private estates men of means could gather up for themselves alone the water-rights of their poorer neighbors, and condemnation might become only a question of how strongly one man may covet his neighbor's property. Consequently, it is well to note some conditions usually imposed upon condemnation of one man's right for another's private enter- prise. When building a ditch or enlarging another's ditch under such statute, it is on the theory of condemnation for a public use, and the various restrictions and safeguards of the law of eminent domain, some of which are below considered, such as due notice in advance, apply. Specially there may be noted that the statutes in this connection usually declare that no enlargement will be allowed in the absence of great necessity, nor where another road is practicable, 22 and in building a new ditch, the shortest possible route must be taken, nor must a new one be built where an old one can be enlarged with the same efficacy. 23 The landowner must have due notice in advance. 24 In condemnation under such a statute the right of way has a money value to be assessed as damages, 1 and the enlargement must be made without requiring expenditure or work on the part of the original ditch owner. 2 The 21 See, for example, Young v. Hin- 23 Ibid., and Paxton Co. v. Farmers' derlider (N. M.), 110 Pac. 1045. See Co., 45 Neb. 885, 50 Am. St. Rep. 585, supra, sec. 174, and infra, sec. 649. 64 N. W. 343, 29 L. R. A. 853. 22 Downing v. More, 12f Colo. 316, 24 Sterritt v. Young, 14 Wyo. 146, 706, 20 Pac. 766 (holding enlarge- 116 Am. St. Rep. 994, 82 Pac. 946, ment applies only to through ditches, 4 L. R. A., N. S., 169. and not to ditches wholly within pri- 1 Sand Creek etc. Co. v. Davis, 17 vate bounds) ; Tripp v. Overacker, 7 Colo. 326, 29 Pac. 742. Colo. 73, 1 Pac. 695. 2 Ibid. 666 (3d ed.) Ft. III. THE LAW OF PRIOR APPROPRIATION. 614 enlarger must bear the cost, and pay damages to the man whose ditch is enlarged or over whose land it runs. 3 Whether the ditch of a competing company may be enlarged by its competitor, quaere* Some typical statutory expressions of these conditions are men- tioned in the note. 5 (3d ed.) 614. The French Irrigation System. In a matter so newly established and just developing, and at the same time so far-reach- ing, it is interesting to note the experience of other countries. The basic civil law is that of riparian rights, but it has been sup- plemented by an extensive use of the power of eminent domain along the lines of Clark v. Nash. In France two statutes were passed upon these lines which form the basis of most of the French irrigation law, and seem to have been borrowed in Italy. The first French statute, passed April 29, 1845, provided for ob- taining water against riparian owners, and rights of way for canals over private land, for another's private irrigation, upon paying compensation to be fixed, after a hearing, by public authorities. The first two sections are quoted (translated) in the note. 6 This 3 Clark v. Nash, 198 U. S. 361, 25 In Nebraska, "No tract of land Sup. Ct. Rep. 676, 49 L. Ed. 1085, 4 shall be crossed by more than one Ann. Gas. 1174; Sand Creek Co. v. ditch, canal, or lateral without the Davis, 17 Colo. 326, 29 Pac. 742; Pat- written consent and agreement of the terson v. Brown etc. Ditch Co., 3 Colo. owner thereof, if the first ditch, canal, App. 511, 34 Pac. 769; Salt Lake City or lateral can be made to answer the v. Gardner (Utah, 1911), 114 Pac. purpose for which the second is de- 147. sired or intended." Cobbey's Ann. The writer is informed of a case in Stats., sec. 6730 or 6750. Utah where the damages upon enlarge- 6 "Article 1. Every proprietor who ment were assessed by a jury at may wish to be served for the irriga- seventy-five thousand dollars. tion of his property with the natural * Infra, sec. 615. or artificial waters of which he has 5 In Colorado, condemnation for a the right to dispose, can obtain the private right of way for a new ditch, passage for these waters over inter- or enlargement of an old one or mediate lands by previously paying a change of point of diversion so re- just indemnity. There are excepted quiring, must be upon due notice and from this servitude houses, pleasure compensation, not more than one ditch grounds, gardens, parks, and inclos- being built where enlargement of ex- ures belonging to dwellings." "Article isting ditches is possible, and the 2. The proprietors of lower lands shortest route must be taken. Colo. will have to receive the waters which Rev. Stats. 1908, sees. 3167-3174; Gen. percolate from lands thus irrigated; Stats., sees. 1712-1721; Gen. Stats., being indemnified, however, if dam- sees. 1373-1376; Rev. Stats., sec. 363; aged. Houses, pleasure grounds, gar- Laws 1861, p. 67; Laws 1870, p. 158; dens, parks, and inclosures belonging Laws 1879, p. 95; Laws 1881, pp. 161, , to dwellings will be equally excepted 164. from this servitude." 614 Ch. 26. EMINENT DOMAIN. (3d ed.) 667 right is confined to building new ditches, and does not extend to enlarging an existing canal, nor does it apply to any 'uses other than irrigation, and there must be a substantial benefit to the party initiating such work, outweighing the inconvenience to the servi- ent estate. 7 The servient owner has no right to share in the use of such waters in their passage over his land, a law to so permit him having been defeated. 8 The second French statute was passed July 11, 1847, and gave a right to build dams on the banks of a stream on another's land, similar to the right conferred in the former statute for ditches and subject to much the same terms. Article 2, however, provided for the joint use of such dam by the man constructing it and the landowner on whose land it is built, saying: "The riparian owner of the lands upon which the right will have been claimed can always demand the common usage of the dam by contributing one- half of the expenses of the establishment and maintenance of it. Any indemnity will not be due in this case, and if any has been paid it must be returned. When this common usage will only be claimed after the commencement, or the completion of the works, the payment which the second proprietor will have to make in order to have the right to use it, will only be that amount which it is necessary to expend in order to make it available for taking out water on his bank." 9 Provisions similar to these statutes are contained in the codes of Sardinia 10 and Lombardy, 11 neither being limited to use for irrigation, however. In the former it is further provided that the ditch-builder must show first that he has a water-right suffi- cient for his land when carried there; that he has chosen the line of least possible damage to the landowner consistent with the circumstances; that payment must be made in advance, covering all probable damages, including the damage due to thus dividing the servient estate into two parts, or other general deterioration in value, and including in addition, as a kind of bonus, one- fifth of the final estimate ; that if the right is asked for a period of less than nine years the compensation is reduced one- 7 Droit- Civile Francais, by Aubrey 8 Ibid., p. 18. & Rau, 4th ed., vol. Ill, pp. 13, 17. Within the last few years there has 9 ***, also, Aubrey & Eau, ut supra, been a movement to extend the acts P* to power development also. Water 10 Articles 622 to 640. Supply Paper 238, U. S. Geol. Sur- u C68 (3ded.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 614 half, subject to the duty at the end thereof to restore the servient estate to i'ts original condition; and numerous other provisions. The Lombardy Code is much the same, but shorter; the bonus here is one-fourth in excess of estimated damage. These statutes are similar x to that considered in Clark v. Nash in that they allow ditch-building over private land for another's private irrigation, by exercise of the power of eminent domain. They do not, however, allow the enlarging of existing canals, as did the statute in Clark v. Nash, because it seems to have been found unsatisfactory by experience. One commentator says : "The power of acquiring a right of way for waters through existing canals, which, as we have seen, was admitted by the ancient legis- lation of Piedmont, has, for good reasons, been left out in the formation of the new code The authors of this code found, with reason, that it was unjust to impose upon proprietors the obligations to receive strange waters into their canals, races, or ditches, as experience had proven that such mingling as resulted therefrom seldom failed to lead to litigation, disastrous to all interests." 12 This matter in the civil law rests upon the power of eminent domain, very similar to Clark v. Nash. It is a principle of civil law as much as common law that private property shall not be taken for public use without just compensation, but that has not, in civil-law countries, the binding force which it has in this country, where it is contained in constitutions, and these European statutes take a wide scope in allowing condemnation for private purposes. 13 12 De Buffon on Agriculture, vol. pecially recorded its opinion that the II, p. 329. law was one of great severity. It is Another commentator likewise says : also recorded that there was scarcely "The vexed question of the right of ever a single case in which the results passage through previously existing of the union in the same canal, and channels has been very judiciously dis- the subsequent division of the water posed of by the Sardinian legislation. belonging to two different proprietors, To have continued this right to the were satisfactory to both." (Smith, possessor of water in the absolute Italian Irrigation, vol. II, p. 270.) manner established by the ancient leg- In regard to using a natural stream islatioc of Piedmont would, as exper- to convey an artificial supply of ience had already shown, have led water, reference is made to a pre- to constant and harassing disputes. vious chapter ' (supra, sec. 38 et seq., The edict of Charles Emanuel, on recapture). Our concern here is con- which the right spoken of was fined to enlarging private and arti- founded, had been followed by re- ficial waterways. peated lawsuits; and though the judi- 13 It may be remarked that the con- cial tribunals had necessarily decided tinental European countries do not all cases in accordance with its pro- confine it to waters. One may there visions, the Senate of Turin had es- likewise enter private land to search 615 Ch. 26. EMINENT DOMAIN. (3ded.) 669 (3d ecf.) 615. Procedure and Miscellaneous. Condemnation proceed- ings for a right of way, however, must be on proper notice and compensation, and a statute authorizing entry otherwise is uncon- stitutional. 14 The acquisition of rights by condemnation and by appropriation are entirely different, 15 and the statutes for posting notice, filing maps, etc., regarding appropriation have no application to con- demnation unless the statutes expressly so declare. 16 A water-right and a ditch right may be condemned separately. 17 It has been held that a water-right must be first acquired before condemning for a ditch, 18 but the contrary has also been held. 19 Damages on condemnation of land for an irrigation canal or reservoir may cover injury from probable seepage; 20 upon con- demnation of a water-right, evidence of condition, improvement, and productivity of land is admissible to show damages. 21 The necessity for a taking must be determined before damages are for and work mines, upon payment of damages, the right to authorize this ilowing from the "Eegalian doctrine" of mines t'hat exists in the civil law. See Yale on Mining Claims and Water Eights, p. 44 et seq. 14 Sterritt v. Young, 14 Wyo. 146, 116 Am. St. Rep. 994, 82 Pac. 946, 4 L. R. A., N. S., 169. 15 State ex rel. Kettle Falls etc. Co. v. Superior Court, 46 Wash. 500, 90 Pac. 653. 16 Apply to condemnation of right of way for ditches by special Wash- ington statute. State ex rel. Kettle Palls etc. Co. v. Superior Court, 46 Wash. 500, 90 Pac. 653. Quaere, whether Cal. Civ. Code, 1415, as amended in 1907 (see stat- utes) so enacts. 17 Schneider v. Schneider, 36 Colo. 518, 86 Pac. 348. 18 Castle Eock etc. Co. v. Jurisch, 67 Neb. 377, 93 N. W. 690. See Cal. Stats. 1885, p. 95, semble accord. Compare Cal. Civ. Code, sec. 1415, as amd. in 1907. Cf. also, Nippel v. Forker, 26 Colo. 74, 56 Pac. 577; O'Eeiley v. Noxon (Colo.), 113 Pac. 486. In Washington, water companies for city supply, before they can condemn water-rights, must show that they have obtained from the city the privilege of supplying it, and that defendant refused to supply the city himself. State ex rel. Shropshire v. Superior Court (1909), 51 Wash. 386, 99 Pac. 3. 19 Schneider v. Schneider, 36 Colo. 518, 86 Pac. 347; Prescott Irr. Co. v. Flathers, 20 Wash. 454, 55 Pac. 635; State ex rel. Kettle Falls etc. Co. v. Superior Court, 46 Wash. 500, 90 Pac. 653. 20 Middelkamp v. Bessemer etc. Co. (1909), 46 Colo. 102, 103 Pac. 280, 23 L. E. A., N. S., 795, dictum. 21 Benninghoff v. Town of Palis- ade (Colo.), 108 Pac. 983. As to measure of damages on emi- nent domain, see, also, Denver Co. v. Midaugh, 12 Colo. 434, 13 Am. St. Eep. 234, 21 Pac. 565; Cal. Code Civ. Proc., sec. 1248. It has been held that the presence of percolating water was not an element that could be considered in estimating the value of property taken on emi- nent domain. (City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585.) But the rule may be different under the recent modification of the law of percolating waters. (Infra, sec. 1039 et seq.) 670 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 615 assessed. 22 There is no right to a jury unless by express statute. 23 The statutes of Idaho do not contain such provisions, 24 but it is usually contained in other States. 25 A decree of condemnation must provide that the money shall be paid to the clerk of the court before work upon the ditch shall be commenced. 1 The condemnor may take possession upon tender to defendant or payment into court of the damages assessed on eminent domain. 2 In California it has been said: "It seems not to be important whether the corporation through whose instrumentality the object is to be obtained be a domestic or foreign corporation." 3 In a recent Montana case the contrary was held, 4 but this was imme- diately changed by statute. 5 In Alaska it has been held that a California corporation cannot exercise the power of eminent domain. 6 The United States may condemn only under State law for the Reclamation Service. 7 A corporation organized for com- mercial purposes, essentially private, cannot exercise the power of eminent domain, though also offering to supply the public at the same time. 8 But where organized for purposes primarily public, claiming to condemn water-rights for purposes both public and private, a decree allowing condemnation may be made, but it will not carry any sanction of the private use, which may be prevented in subsequent proceedings. 9 The fact that articles of 22 Portneuf Irr. Co. v. Budge Rep. 174, 46 S. E. 422 ; Vanderpoel v. (1909), 16 Idaho, 116, 100 Pae. 1046. Gorman, 140 N. Y. 563, 37 Am. St. 23 Ibid. Rep. 601, 35 N. E. 932, 24 L. R. A. 24 ibid. 548; South Yuba Water Co. v. Rosa, 25 E. g., California and Colorado 80 Cal. 333, 22 Pac. 222 (which, how- Constitutions, quoted supra, sec. 605. ever, is not in point) ; Rumbough v. 1 Fulton v. Methow etc. Co., 45 Southern Im. Co., 106 N. C. 461, 11 Wash. 136, 88 Pac. 117. For a ques- S. E. 528 ; Postal Tel. Co. v. Cleve- tion of procedure in Oregon, see land etc. Ry. Co. (C. C.), 94 Fed. 234. Grande Ronde etc. Co. v. Drake, 46 But limiting its decision to corpora- Or. 243, 78 Pac. 1031. tions of the character of the respond- 2 Portneuf Irr. Co. v. Budge ent in the principal case. (1909), 16 Idaho, 116, 100 Pac. 1046. 5 Spratt v. Helena Co., 37 Mont. 60, Costs of appeal should not be upon de- 94 Pac. 631. fendant, as it would deprive him of Miocene D. Co. v. Lyng, 2 Alaska, full value for his property. Portneuf 265. Co. v. Portneuf Co. (Idaho), 114 Pae. 7 United States v. Burley (Idaho. 19. 1909), 172 Fed. 615; Same v. Same 3 Gilmer v. Lime Point, 18 Cal. (1910), 179 Fed. 1, 102 C. C. A. 429. 251. Accord, Kirk etc. Co. v. Amer- See Mont. Stats. 1905, p. (House ican Assn., 128 Ky. 668, 108 S. W. Bill No. 219). 232. 8 State ex rel. Tolt Power etc. Co 4 Helena etc. Co. v. Spratt, 35 v. Superior Court, 50 Wash. 13, 96 Mont. 108, 88 Pac. 773, 8 L. R. A., Pac. 519. N. S., 567, 10 Ann. Gas. 1055, citing 9 State ex rel. Shropshire v. Supe- Chestatee Pyrites Co. v. Cavenders rior. Court (1909), 51 Wash. 386, 99 Cr. M. Co., 119 Ga. 354, 100 Am. St. Pac. 3. 615 Ch. 26. EMINENT DOMAIN. (3d ed.) 671 incorporation include incidental private uses with the public one will not bar condemnation, since the right acquired thereby extends only to the public uses alone. 10 Condemnation may be made of property already devoted to public use, for a more necessary public use. 11 Irrigation rights may be condemned to furnish a city water supply. 12 Land may be condemned for a reservoir, though containing a public highway, the reservoir being a more necessary public use. 13 As to how far condemnation will lie for water already devoted to a public use, quaere. 14 Between two rival public service corporations, the one first started may condemn the water-rights of a later one, where only one is possible. 15 One irrigation company may, by con- demnation under such statutes as that upheld in Clark v. Nash, enlarge the canal of another company, so as to make it do the service of both; that is, to irrigate the two thousand five hundred acres of the existing company and an additional twenty thousand acres to be supplied by the new company. 16 Relative necessity is not measured by the extent of the relative uses. The irrigation of a greater area is not per se a more necessary use. 17 The fact that water-rights and ditch rights sought on eminent domain may conflict with the rights of other appropriators who are not parties to the action cannot be raised. 18 The rights of strangers to the suit cannot be allowed to influence condemnation 10 Walker v. Shasta Power Co., 160 Luis Co. v. Kenilworth Co., 3 Colo. App. Fed. 856, 87 C. C. A. 660. But cf. 244, 32 Pac. 860; Salt Lake etc. Co. v. Hercules W. Co. v. Fernandez, 5 Cal. Salt Lake City, 25 Utah, 441, 71 Pac. App. 726, 91 Pac. 401, holding that a 1067; Eeclamation Dist. v. Superior complaint to condemn water-rights Court, 151 Cal. 263, 90 Pac. 545 (al- to supply specified towns "and other lowing condemnation of a reclamation places" is defective, since "other" levee for a railway roadbed). Port- places would include uses not public neuf Irr. Co. v. Budge (1909), 16 uses. Idaho, 116, 100 Pac. 1046 (allowing 11 For example, see Wyo. Stats. enlargement of irrigating canal). See, 1909, c. 68, sec. 3. also, supra, section 308, as to what 12 City of Helena v. Rogan, 26 are preferred uses. Mont. 452, 68 Pac. 798, 27 Mont. 135, 15 state ex rel. Kettle Falls etc. Co. 69 Pae. 709. . v. Superior Court, 46 Wash. 500, 90 13 Marin Co. etc. Co. v. Marin Pac 653 . State v Superior Court County, 145 Cal. 586, 79 Pac. 282. (1909), 53 Wash. 321, 101 Pac. 1094. See also, Junction etc. Co v. 16 Portneuf Irr Co Bud City of Durango, 21 Colo 194, 4( Pac (ig g) Idafa nfi p * 356 (condemnation not lie by city to J^ ; ' C lark v Nash ' and Railw ' enlarge company ditch). Denver etc.. Co. v. Denver etc. Co., 30 Colo. 204 69 Pac. 568, 60 L. R. A. 383 17 Portneuf Irr. Co. v. Budge (concerning condemnation of railway (1909), 16 Idaho, 116, 100 Pac. 1046. for reservoir). Sand Creek Co. v. 18 Schneider v. Schneider, 36 Colo. Davis, 17 Colo. 326, 29 Pac. 742; San 518, 86 Pac. 348. 672 (3d ed.) Ft. III. THE LAW OF PRIOR APPROPRIATION. 616 proceedings. 19 To secure a right to a whole stream, condemna- tion must be made of all rights from source to mouth and not merely of those above (or below) the point of diversion. 20 The right of condemnation for a ditch is not lost from the fact that water might be put upon the land in some other way, as by a pump, 21 especially if not pleaded ; 22 nor from the fact that without irrigation the land might still have some agricultural value. 23 In Nebraska the condemnation procedure follows that of con- demnation by railroads. 24 Condemnation of land for sewage purposes does not necessarily include a right to send sewage into a stream on the land. 25 Section 1415 of the California Civil Code as amended in 1907 1 is difficult to understand, but seems to fix a statute of limitations of sixty days after posting a notice of appropriation, within which to begin condemnation proceedings. This feature is dropped, however, in an amendment in 1911. Some questions peculiar to condemnation of riparian rights are considered in a later chapter. 2 (3d ed.) 616. A Question of Procedure. Mr. Mills 3 remarks: "It would seem, however, that in instances where the stream system is of considerable size and the number of riparian proprietors who would be affected by a diversion of water is large, the pro- ceedings to condemn their respective rights and compensate each for his injury or loss of the flow of the stream would be of such 19 Denver etc. Co. v. Denver etc. case out of the general rule that, in Co., 80 Colo. 204, 69 Pac. 568, 60 the absence of bad faith, the judg- L. R. A. 383 ; Walker v. Shasta Power ment of the party exercising the right Co. (Cal.), 160 Fed. 856, 87 C. C. A. of eminent domain as to what and 660 (no defense to condemnation that how much land shall be taken is con- plan cannot be successful because of elusive." United States v. Burley outstanding rights also requiring con- (Idaho), 172 Fed. 615, affirmed in demnation). See infra, sec. 627. 179 Fed. 1, 102 C. C. A. 429. 20 In re Board of Water Supply, 23 State ex -rel. Galbraith v. Su- 58 Misc. Rep. 581, 109 N. Y. Supp. perior Court (Wash.), 110 Pac. 429. 1036. 24 Crawford v. Hathaway, 67 Neb. 21 State ex rel. Galbraith v. Su- 325, 108 Am. St. Rep. 647, 93 N. W. perior Court (Wash.), 110 Pac. 429. 781, 60 L. R. A. 889. See Comp. 22 "Whether, as has been suggested, Stats. 1901, art. 2, sec. 41, art. 3, sec. an equally feasible, or more feasible, 10. scheme might not be devised, and 25 Semble, Village of Twin Falls v. whether some other reservoir site Stubbs, 15 Idaho, 68, 96 Pac. 195. might not be selected, are immaterial 1 See infra, statutes, inquiries. The record discloses no 2 Infra, sec. 864 et seq. circumstances or conditions taking the 3 Mills' Irrigation Manual, p. 276. 616 Ch. 26. EMINENT DOMAIN. (3ded.)673 magnitude and so expensive as to practically bar the appropriator from attempting it." Such a case may arise where a water com- pany seeks to acquire a stream for the supply of a city. Condemna- tion proceedings may be instituted against perhaps fifty defendants (riparian owners) below the point of diversion, but such condemna- tion would be inadequate because it ignores the riparian proprietors upon the upper half of the stream and would not destroy their right of use on their own lands, and hence would not secure to the com- pany the exclusive right to the whole stream which it sought. To secure the exclusive right to the entire stream would necessitate the condemnation of riparian rights from source to mouth. 4 The same is true under the new law of percolating water. And it is no less true of appropriative water-rights; for condemnation of all ap- propriations below the point of diversion of a proposed public use would not affect the rights of any of the appropriators upon the rest of the stream above the point of diversion ; to obtain the right to an entire stream in an appropriation jurisdiction it is equally necessary to condemn all rights from source to mouth. 5 Since water-rights (whether riparian or appropriative) may be condemned for a public use on eminent domain proceedings, and since the important and large enterprises are usually for purposes which are public uses (especially in view of the decision in Clark v. Nash above considered, that the taking may in some cases and under certain circumstances, be for an individual's private enterprise alone, and not necessarily for general supply), anything which facilitates condemnation is likely to be eagerly resorted to. And there is a tendency to allow a short cut to condemnation which, if generally adopted, will likely give rise to a system of condemnative water-rights in a class by itself. The principle in question is that the special proceedings for condemnation, which are cumbersome and lengthy and expensive, need not be followed. In the law of eminent domain, wherever the special proceedings are necessary and not followed, equity will enjoin simply because the taking of a man's property is an extraordinary proceeding which must be done by the prescribed method strictly or not at all. But there is a line of decisions concerning railroads holding that such injunction will be refused 4 See, for example, In re Board of 5 Infra, sec. 626 et seq. Water Supply, 58 Misc. Rep. 581, 109 N. Y. Supp. 1036. Water Bights 43 674 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 617 when the acts complained of are not a taking of property but a collateral damaging of it, such as where property values along a railroad decrease because of. the noise, smoke or other similar matters. In such cases the injunction to stop the running of the railroad until the eminent domain formalities are complied with is frequently refused, and the damages to the property owners are instead assessed in the injunction suit.* This is now fairly well established in the law of water-rights of all kinds. Since constitutions usually provide that private property cannot be taken for public use without compensation, damages must be paid; but relief by injunction against one who has, at great expenditure, actually diverted water from its owner for public use, is refused after expenditure has been incurred and public necessity has arisen, although condemnation proceed- ings were never instituted. (3d ed.) 617. Same. The authorities are cited and a more particular presentation is made in a later section under the topic of injunc- tions. 7 Something may be said here as to the things which sug- gest themselves in its bearing upon taking property for public use. Since the constitutional provision says property cannot be taken for public use until damages are ascertained and paid, the rule under consideration does not technically pass any prop- erty by refusing the injunction; but there are some Nebraska cases considering it as recognizing an actual property to the diversion which would support an affirmative action of injunc- tion and to quiet title against the real owner without paying dam- ages. 8 The court relegated the owner to a separate action for dam- ages. So that the foregoing principle seems to be carried to the extent in Nebraska that the burden in condemnation is thrown upon owners to sue for their compensation instead of for the eondemnor to sue for the property. 9 The Nebraska cases further construed the rule in a way which makes the Board of Irrigation the condemnation tribunal instead 6 See Fresno etc. Co. v. S. P. Co., 781, 60 L. R. A. 889; McCook irr. Co.. 135 Cal. 202, 67 Pac. 773; Southern v. Crews, 70 Neb. 115, 102 N. W. 249; Ry. Co. v. Slauson, 138 Cal. 342, 94 Cline v. Stock, 71 Neb. 70, 98 N. W. Am. St. Rep. 58, 71 Pac. 352. 454, 102 N. W. 265. 7 Infra, sec. 651. 9 The principle is avowedly stated 8 Crawford v. Hathaway, 67 Neb. as one of procedure only. "The ques- 325, 108 Am. St. Rep. 647, 93 N. W. tion in this case, however, which it is 618 Ch. 26. EMINENT DOMAIN. (3d ed.) 675 of the courts. The Nebraska court laid stress upon the fact that, the condemnor had, under claim as appropriator, secured the approval of the State Board of Irrigation; the court holding (contrary to the usual authority elsewhere.) 10 that the determina- tion of the State board is conclusive upon the courts and con- sidered that the permit of the State board passed a title which would support an action to quiet title against the real owner. This gives to the board the power to license (so as to be binding on the court) what would otherwise be a trespass ; to create rights in one, by taking them from another; to violate the constitution guaranteeing private property rights. The cases arose after the court had declared riparian rights to exist in Nebraska (as in California), which was an unpopular position. The property taken in these cases was the riparian right, and the court took this way of largely nullifying its former deci- sions. One need not find fault with decisions making an open rejection of riparian rights, but only with decisions which go around by the back way to nullify rights which previous cases, at the front door, said they were upholding. (3d ed.) 618. Same. Another question is, What will be the applica- tion of this rule in connection with Clark v. Nash ? n In Clark v. Nash the rule was established that, under certain circum- stances, water-rights and other property can be condemned for private advantage without devoting it to public supply. Can one, then, in a case of diverting water from its owner's to one's own private field for irrigation, defend an injunction on the ground that condemnation would lie and multiplicity of actions is to be avoided? If so, injunctions in water suits would cease, for under Clark v. Nash private irrigation may be a use for which condemnation will lie, and defendants in ordinary injunc- tion suits would need only to pay damages. Or will it be said that the irrigation by both private parties is equally a public use, so that the taker must show a more necessary use? If so, proposed to further consider, relates by which his right is protected, his more to the remedial rights of the par- right is, in effect, denied in substance, ties to the controversy, than to a de- The court takes away the private right termination of the substantive rights when it takes away the means by or interests in property of which they which it lives. may be possessed." McCook Irr. Co. 10 Infra, sees. 1192 et ?eq., 1194. v. Crews, 70 Neb. 115, 102 N. W. 249. U Supra, sec. 607 et seq. Yet denying the owner the procedure 676 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 618 will a greater private necessity for the other man's water-right make it a more necessary use and prevent injunction? In other words, if you need another farmer's water-right more on your own farm than he does on his, can you simply take it and make him accept damages when he sues for an injunction? This rule of procedure making condemnation proceedings un- necessary in certain circumstances, and the rule of Clark v. Nash holding that condemnation may (under certain circumstances) lie for private enterprise and not necessarily for general supply, when taken together, so facilitate the taking of private property from its owner as to be far-reaching in their practical results; opening the way for a system of condemnation water-rights easily obtained; and in time may constitute a system of condemnative water-rights in a class by itself. 619-623. (Blank numbers.), Ch. 27. PROCEDURE. (3ded.) 677 CHAPTER 27. PROCEDURE. 624. Introductory. A. PARTIES. 625. Cases are governed by the relative rights of the parties before the court. 626. Rights of strangers to a suit cannot be bound. 627. Nor can rights of strangers affect the result between the parties litigant. 628. Recurrence of the principle in the law of waters. 629. Joinder of parties. 630. Joinder of issue between the parties. 631. Parties (concluded). B. PLEADING AND PRACTICE. 632. Jurisdiction. 633. Joinder of causes of action. 634. Pleading (continued) Allegations in complaint. 635. Alleging local customs. 636. Evidence. 637. Damages. 638. Measure of damages. 639. Decree. 640. Miscellaneous matters of practice. C. INJUNCTION. 641. Irreparable injury. 642. Same Injuria sme damno. 643. Prospective. 644. Laches. 645. Making out right at law. 646. Mandatory injunctions. (Abatement of nuisance by suit.) 647. Defenses to injunction. 648. Balance of inconvenience between the parties. 649. Same Hardship on the public. 650. Same Conflict between mining and agriculture. 651. Same Against public service companies. 652. Preliminary injunctions. 653. Injunction (Conclusion). D. OTHER EQUITABLE REMEDIES. 654. Bills to quiet title, etc. 655. Specific performance and allied matters. 678 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 624 E. MISCELLANEOUS REMEDIES. 656. Actions at law. 657. Abatement of nuisance by act of party Use of force. 658. Crimes. 659-665. (Blank numbers.) (3d ed.) 624. The preceding chapters have been devoted to the sub- stantive law, defining and bounding an appropriator's rights. In the protection of these rights, there remain over various mat- ters concerning procedure. Some arise out of the new. statutes which provide special procedures. These we leave to a special part of this book below. 1 Here we will deal with the procedure aside from special irrigation legislation, and under the general law of the land. 2 Owing to the fact that water suits deal with rights of numer- ous people (and, as settlement advances, of whole communities) in a common and to a large extent indivisible supply, procedure is frequently complicated because of the large number of rights involved at the same time; further, because of the fluid nature of the subject matter of the litigation, "which does not stay quiet in a certain place, but is always running from one place to an- other"; because, moreover, of its fluctuating volume or condition with the varying seasons, localities and surroundings. 3 By way of recapitulating some general introductory ideas in respect to the test of wrongful interference with a right of appro- priation, there may be noted the departure from the common law between riparian proprietors. That system is founded upon the equality of right of all riparian proprietors, each riparian owner having the right to a reasonable use of the stream, although by 1 Infra, Part VI. supply, necessarily give rise to new 2 Such matters as arise exclusively questions of practice, not covered by under the system of riparian rights as the statute nor aided by precedent, distinguished from appropriation are The courts, then, are confronted with not generally considered in this chap- the dilemma either of exercising their ter. See infra, sec. 880 et seq. As discretion in such matters or of mak- a rule, however, the matters herein ing an exception to that well-known considered apply throughout the water maxim, which is the foundation of all law. equitable jurisdiction, that 'equity 3 It was said in a recent case: will not suffer a right to be without "Water suits are, in a sense, sui gen- a remedy.' " Mr. Justice King in eris; for the complications and many Hough v. Porter, 51 Or. .318, 95 Pac. intricacies developed by litigation of 732, 98 Pac. 1083, 102 Pac. 728. this character, of late years, when all See, for example, Jackson v. Indian available lands are rapidly becoming etc. Co., 13 Idaho, 513, 110 Pac. 251; settled, resulting in most instances in Windsor Res. Co. v. Lake Supply Co., the demand for water exceeding the 44 Colo. 214, 98 Pac. 729. 625 Ch. 27. PROCEDURE. (3ded.) 679 exercising it the use of the stream by another riparian proprietor was made less favorable. Neither riparian proprietor can claim an exclusive right; their rights are correlative. But under the law of appropriation the prior appropriator gets an independent and exclusive right, any material interference with which is wrongful, however reasonable the interference might have been between riparian owners. The rules of the common law based upon correlative rights have no application. 4 The question under the law of appropriation generally is whether the flow is, in any sub- stantial degree at all, made less fit for the prior appropriator (his right still being exclusive of and paramount in every way to any subsequent claimant), and if it is so interfered with, the interference is wrongful. "In all controversies, therefore, be- tween him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant." 5 A. PARTIES. (3d ed.) 625. Cases are Governed by the Relative Rights of the Par- ties Before the Court. It is a general principle of law that the court can determine the rights only of the parties to the suit, and only as between themselves. They may both be wrongdoers as against a third person, yet that third person may never set up his right against either of them. It is the office of the court to adjudge only the relative rights in actual controversy of the plaintiffs against the defendants and vice versa. Hence it is that different decrees often award to different persons the whole of a stream, such awards being in different suits between different parties, though as against other appropriators who have not taken part in the litigation they may have no right at all. In order to determine what right one absolutely has in the stream as against all claimants, all claimants must be brought into court ; otherwise the court can adjudge only 4 Except so far as considered supra, For the distinction between the ex- sec. 310 et seq. elusive right of the law of appropria- 5 Per Mr. Justice Stephen Field in tion and the correlative rights of the Atchison v. Peterson, 87 U. S. 507, common law, compare Hill v. King, 22 L. Ed. 414, 1 Morr. Min. Rep. 383. 8 Cal. 336, 4 Morr. Min. Rep. 533, and Italics ours. As to Judge Field's Bear R. Co. v. N. Y. Co., 8 Cal. 327, views upon this matter, see, however, 68 Am. Dec. 325, 4 Morr. Min. Rep. supra, sec. 312. 526. 680 (3ded.) Pt. III. THE LAW OF PRIOB APPROPRIATION. 626 the relative rights of those before it. Possession is a sufficient right to the whole stream against a wrongdoer as to the possessor. One of the grounds for indictment of the system of appropria- tion has been this feature that one decree will absolutely enjoin John Smith from diverting any water of the whole stream against Tom Jones, and another, in a different suit to which John Smith is not a party (and who, consequently, is in no way bound thereby), will in the same way enjoin Frank Doe from divert- ing any water of the whole stream against Richard Roe. This is unavoidable, for it would be against justice, and constitutional principles of due process of law, to bind by a decree the rights of a man who was not before the court, or to apply them for the benefit of a litigant to whom they do not belong. It is too obvious to require elaboration that the parties t& a lawsuit must fight it out between themselves, and at the same time its results affect them alone. The law guarantees to every man his day in court and a right to a hearing before his right can be adjudged. It is in recognition of this fundamental principle that the water codes have provided a special procedure to determine rights by bringing all appropriators upon a stream into court in a single suit, in which all litigate, and the decree may hence be absolute in its determination. This special procedure is else- where considered at length. 6 (3d ed.) 626. Rights of Strangers to a Suit cannot be Bound. A judgment or decree can bind only the parties before the court, and any that tries to do more is void. The supreme court of California says: "It may, perhaps, be unnecessary to add that the foregoing discussion has reference simply to the rights of the parties inter se. The right of third parties to take a part of the water of the lake, or to complain of a diversion by any of the parties to this action, is not here involved, and cannot be affected by anything here de- cided." 7 The supreme court of Washington says: "In the argument submitted in support of the action of the trial court it seems to be assumed that these decrees fix the rights of the parties to the waters of Moses Lake and Crab Creek, not only as 6 Infra, sees. 1206, 1222 et seq. court said that the right "cannot be 7 Duckworth v. Watsonville Co., 158 vicariously contested by another on Cal. 206, 110 Pac. 927. In Same v. behalf of the owner of the better Same, 150 Cal. 520, 89 Pac. 338, the right." 626 Ch. 27. PROCEDURE. (3ded.) 681 between themselves, but as to other and third parties claiming interests adverse to such parties. But a moment's reflection must convince anyone that this view is erroneous. Although general in form, and broad enough in language to include the whole world, they can have no such effect. They are binding on the parties to the action and their privies, but upon no one else. As to strangers claiming rights in the waters of the lake the -decrees in no manner affect them. The decrees are not even evidence of adverse rights. Strangers may proceed as if the decrees had never been entered." 8 An action to enjoin a water commissioner from diverting water from a stream, to be effective for the end desired, must, it is held, join as defendants the persons for whose benefit it is diverted, since a decree against a water commissioner, alone, does not affect owners who were not parties to the suit. 9 A decree adjudicating rights between two parties does not govern as to a right later purchased by one of them from a stranger to the suit. 10 A decree based upon the rights of owners in one water district cannot be binding upon them when rendered in another district in a suit to which they were not parties. 11 A statute in Montana 12 seems to say that appropriators are bound by decree in suits decided prior to their appropriation, though not parties thereto. Except possibly on the theory of the decree acting as additional notice, operating as a notice of appropriation, this violates a rule "as old as the law that no man shall be condemned in his rights of property, as well as in his rights of person, without his day in court," 13 and its con- stitutionality may perhaps be questionable. The Montana court has held that a decree cannot bind persons who were not parties (nor privy to any parties) to the action, and who had no connection with the litigation or with the parties thereto. 14 8 State ex rel. McConihe v. Stciner 10 Josslyn v. Daly, 15 Idaho, 137, (Wash.), 109 Pac. 57. 96 Pac. 568. 9 Squire v. Livezey, 46 Colo. 302, n McLean v. Farmers' Co., 44 Colo. 85 Pac. 181; Boulder etc. Co. v. 184, 98 Pac. 16. But see infra, seca. Hoover (Colo.), 110 Pae. 75; McLean 1232, 1233. v. Farmers' etc. Co., 44 Colo. 184, 98" 12 Laws 1907, p. 489, sec. 12. Pac. 16, citing Farmers' Highline C. 13 Terrell v. Allison, 21 Wall. 293, & R. Co. v. White, 32 Colo. 114, 75 22 L. Ed. 634. Pac. 415 ; Brown v. Farmers' Highline u State ex rel. Pew v. District C. & B. Co., 26 Colo. 66, 56 Pac. 183. Court, 34 Mont. 233, 85 Pac. 525. 682 (3d ed.) Pt. III. THE LAW OF PEIOR APPEOPEIATION. 627 (3d ed.) 627. Nor can Rights of Strangers Affect the Result Between the Parties Litigant. Not being bound nor before the court at all, the rights of strangers correspondingly cannot affect the suit; it must be determined upon the relative rights alone of those before the court. It cannot avail one party to say that some stranger to the suit has a better right than his opponent. The supreme court of the United States has said: "Neither do we think that the trial court was called upon, at the instance of the defendants, entire strangers in every aspect to other appro- priators, to inquire into and pass upon the question whether appropriators of water below the mouth of the proposed canal of appellee would be injured by the construction of the canal. The rights of such persons will not, of course, be injuriously affected by the decree in this cause, and non constat but that they may yet intervene for their own protection, if they deem that the construction of the canal will be an invasion of their rights, or that they may be willing to forego objection to the construction of the canal." 15 The question whether the appropriation of water interferes with the rights of other appropriators cannot be raised by parties who are strangers to such other appropriators not parties to the action. 16 Rights of strangers cannot be set up as a defense to condemnation proceedings. 17 Nor, in an action in Colorado to change the point of diversion, is it any defense that the change might injure inter- mediate users on the stream who are not parties to the action. 18 The rights of third parties cannot be set up unless they are brought into court. If the defense to an action for diversion is that plaintiff has no title to the water-right and that there are 15 Gutierres v. Albuquerque etc. Boulder etc. Co. v. Hoover (Colo.), Co., 188 U. S. 545, 23 Sup. Ct. Eep. 110 Pac. 75; Hackett v. Larimer etc. 338, 47 L. Ed. 588. Co. (Colo.), 109 Pac. 965; Humphreys 16 Gutierres v. Albuquerque etc. Co.", T. Co. v. Frank, 46 Colo. 524, 105 188 U. S. 545, 23 Sup. Ct. Eep. 338, Pac. 1093; Carnes v. Dalton (Or.), 47 L. Ed. 588; Senior v. Anderson, HO Pac. 170. 138 Cal. 716, 72 Pac. 349; Utt v. 17 Schneider v. Schneider, 36 Colo. Frey, 106 Cal. 396, 39 Pac. 807; 518, 86 Pac. 347; Denver etc. Co. v. Clark v. Ashley, 34 Colo. 285, 82 Pac. Denver etc. Co., 30 Colo. 204, 69 Pac. 588; Burkart v. Meiberg, 37 Colo. 387, 568, 60 L. E. A. 383; Walker v. 119 Am. St. Eep. 279, 86 Pac. 99, 6 Shasta etc. Co., 160 Fed. 859, 87 C. C. L. R. A., N. S., 1104; Silva v. Hawk- A. 660. See supra, sec. 615. ins (Cal.), 9 Pac. 72; Buckers etc. 18 Crippen v. Glasgow, 38 Colo. 104, Co. v. Farmers' etc. Co., 31 Colo. 62, 87 Pac. 1073 ; Lower Latham etc. Co. 72 Pac. 49; Seven Lakes Co. v. New v. Bijou etc. Co., 41 Colo. 212, 93 Pac. Loveland etc. Co., 40 Colo. 382, 93 483 ; Diez v. Hartbauer, 46 Colo. 599, Pac. 485, 17 L. R. A., N. S., 329; 105 Pac. 868. 5627 Ch. 27. PROCEDURE. (3ded.)683 appropriators prior to him, such appropriators should be brought into court by a cross-bill. 19 The contention that water and ditch rights sought on eminent domain may conflict with the rights of other appropriators who are not parties to the action cannot be raised. 20 That prior appropriators below stream will have a right to complain gives an appropriator above no right of action against a diversion by a defendant as between the two. If plaintiff fears that he will be blamed by the lower appropriators for defendant's diversion, he should join them as defendants. 21 In a suit by the United States to enjoin a canal upon public land, rights of settlers over whose land the canal might also pass are immaterial. 22 That an, appropriation interferes with the navigability of a navigable stream cannot be set up by anyone but the State or United States, or someone interfered with in navigating. 1 That one claiming an appropriation on public land is an alien can only be raised by the United States, if at all. 2 Whether acts of a corporation in distributing water are ultra vires cannot be raised by a stranger diverting water above on the same stream. 3 A right to use water through a ditch over land of another can be objected to only by the owner of the land. 4 That a ditch is bringing water to plaintiff's land by trespassing on the land of a third person cannot avail a party who is a stranger to such third person. 5 "It may be that the holder of the true title may not wish to assert his right, and if he should not wish to assert his title, the defendant has no right to assert it for him." 6 That there are other wrongdoers is no defense to an action for damages (although receivable in mitigation) 7 or injunction; 8 19 Humphreys v. McCall, 9 Cal. 59, (1909), 155 Cal. 82, 13^ Am. St. Rep. 70 Am. Dec. 621. 59, 99 Pac. 520, 22 L. E. A., N. S., 20 Schneider v. Schneider, 36 Colo. 401, 17 Ann. Cas. 823. 518, 86 Pac. 347. c Humphreys v. McCall, 9 Cal. 63, 21 Larimer etc. Co. v. Water Supply 76 Am. Dec. 621. Co., 7 Colo. App. 225, 42 Pac. 1020. ? Gould v. Stafford, 77 Cal. 66, 18 22 United States v. Lee (N. M.), Pac. 879; Kevil v. City of Princeton 110 Pac. 607. (Ky. Civ. App.), 118 S. W. 363; Beck 1 Supra, sec. 339. v. Bono (Wash.), 110 Pac. 13. 2 Santa Paula W. W. v. Peralta, Gould v. Stafford, 77 Jal. 66, 18 113 Cal. 38, 45 Pac. 168. Pac. 879; Lakeside D. Co. v.. Crane, * Semble, Arroyo D. Co. v. Baldwin 80 Cal. 181, 22 Pac. 76; Los Angeles (1909), 155 Cal. 280, 100 Pac. 874. v. Hunter, 156 Cal. 603, 105 Pac. 755; 4 Hough v. Porter (1909), 51 Or. Humphreys T. Co. v. Prank, 46 Colo. 318 95 Pac. 732, 98 Pac. 1083, 102 524, 105 Pac. 1093; Carnes v. Dalton Pap. 728. (Or.), 110 Pac. 170 (citing this book, r> Ellis v. Tone, 58 Cal. 289 ; Pen- 2d ed., sec. 196) ; Beck v. Bono dola v. Ramon, 138 Cal. 517. 71 Pac. (Wash.). 110 Pac. 13; Weeks etc. 624; Turner v. James Canal Co. Co. v. Glenside W. Mills, 64 Misc. 684 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 628 although it has been held that if there are sufficient other wrong- doers taking the whole even without defendant, such total diver- sion by others is a defense. 9 This should seem to be the rule only where it amounts to a disproval that defendant contributed at all to the injury. Again, persons against whom an action is brought to cancel their rights in an irrigation company cannot complain that the action is not also maintained against others having no better rights. 10 (3d ed.) 628. Recurrence of the Principle in the Law of Waters. The principle and the idea upon which it rests are far-reaching and underlie a very large part of the law; colloquially expressed, that possession is nine points of the law. In fact, so often does it come up that one is sometimes tempted to lose perspective and to think that the whole law of real property is a possessory law that possession is the whole law of real property instead of only nine-tenths of it and that actual title against the world is but a fringe of the fabric, so often must cases be decided without reference thereto, the real title being not represented in court. The following are some of the instances where this principle has been important in the preceding chapters. (a) The early law of possessory rights on the public domain, and therefore of the law of appropriation of water itself, was rested upon it. The real title to the public lands, mines and waters was regarded as being in the United States as landowner of the public lands, so that the pioneers were declared by some to be, in true law, mere trespassers subject to ouster. But Con- gress remaining silent and the Federal title not being represented in court, the courts decided eases between private persons with- out reference to such outstanding Federal title. As between the pioneers themselves, possession was nine points of the law, and priority governed though neither had any positive right of title. The results of this we have shown throughout, such as, for ex- ample, the survival of the old rule as to parol sales. But in the act of 1866 the theory that the waters were open to free acquisi- tion by the people displaced that ; the appropriators on public land Rep. 205, 118 N. Y. Supp. 1027; West Point etc. Co. v. Moroni United States v. Conrad Inv. Co., 156 etc. Co., 21 Utah, 229, 61 Pac. 16. Fed. 123. Blakeley v. Ft. Lyon Co., 31 Colo. 224, 73 Pac. 249. 628 Ch.27. PEOCEDUEE. (3ded.) 685 have since been regarded in California as grantees of the United States enjoying a full title; an appropriation no longer depends upon the present principle, and instead has to-day the dignity of a fee a freehold an absolute right in real property against the world. This is considered in the opening chapters of Part II of this book. (b) The question whether the law of appropriation applies to ditches on private land or, under the California doctrine, to waters thereon. Against the landowner it does not; but against stran- gers to the landowner, this principle of possession being nine points of the law a possessory as distinguished from a free- hold right governs; that is, no one but the injured riparian owner will be heard to set up the existence of private land or riparian rights on the stream. 11 (c) As to the use of the ditches or other works of a stranger to the suit. 12 These are matters elsewhere considered, and there are many other connections in which the principle arises. In the note are given some citations enforcing the principle in one form or an- other. 13 At the same time, some exceptions may be noted. The main one is that where the parties are engaged in a crime upon the 11 Supra, sec. 246. In this quasi Co., 152 Cal. 87, 92 Pac. 77; TuTher sense, one California Justice declares v. James Canal Co., 155 Cal. 82, 132 that the law of prior appropriation Am. St. Eep. 59, 99 Pac. 520, 22 L. applies in California to ditch-building E. A., N. S., 401, 17 Ann. Cas. 823; and to waters upon private lands. Los Angeles v. Hunter, 156 Cal. 603, See supra, sec. 246, and infra, sees. 1Q 5 Pac. 755. For an illustration 828 1106 and 1158. where the decision is possibly errone- 12 Supra sec. 390. ous ^ or having overlooked this, see 13 The following list is not intended Cave v - T 7 ler > *P* secs - 246 > 247 - to be complete, and other cases are Colorado. Larimer etc. Co. v. cited in the previous sections : Water Supply Co., 7 Colo. App. 225, California. Humphreys v. McCall, 42 Pac. 1020; Buckers etc. Co. v. 9 Cal. 59, 70 Am. Dec. 621; Ellis v. Farmers' etc. Co., 31 Colo. 62, 72 Pac. Tone, 58 Cal. 289; Emerson v. Bergin, 49; Clark v. Ashley, 34 Colo. 285, 82 71 Cal. 335, 12 Pac. 242; Gould v. Pac. 588; Burkhart v. Meiberg, 37 Stafford, 77 Cal. 66, 18 Pac. 879; Colo. 187, 119 Am. St. Eep. 279, 86 Lakeside D. Co. v. Crane, 80 Cal. 181, Pac. 99, 6 L. E. A., N. S., 1104; 22 Pac. 76; Utt v. Frey, 106 Cal. 396, Schneider v. Schneider, 36 Colo. 518, 39 Pac. 807; Senior v. Anderson, 138 86 Pac. 347; Crippen v. Glasgow, 38 Cal. 716, 72 Pac. 349; Craig v. Craf- Colo. 104, 87 Pac. 1073; Clark v. ton Water Co., 141 Cal. 178, 74 Pac. Ashley, 34 Colo. 285, 82 Pac. 588; 762 ; Silva v. Hawkins, 152 Cal. 138, Denver Co. v. Denver Co., 30 Colo. 204, 92 Pac. 72 ; Duckworth v. Watsonville 69 Pac. 568, 60 L. E. A. 383 ; Hack- etc. Co., 150 Cal. 520, 89 Pac. 338; ett v. Larimer etc. Co. (Colo.), 109 Same v. Same, 158 Cal. 206, 110 Pac. Pac. 965 ; Lower Latham Co. v. Bijou 927; People's Ditch Co. v. Fresno etc. Co., 41 Colo. 212, 93 Pac. 483; Bla'ke- 686 (3d ed.) Pt. III. THE LAW OF PEIOR APPROPRIATION. 628 real owner, or acts involving moral turpitude, the court will grant no relief to either, being in pari delicto; it will consider the outstanding title to that extent. A second exception is that in suits in equity as distinguished from law (such as injunctions or bills for specific performance), the discretion of the chancellor is appealed to, and the better authority is that he may refuse relief if a decree between the two disputants will work great hardship upon the public or upon a third party without suffi- cient benefit to the actual litigant parties to offset it. 14 A third exception is that in an action for damages, the existence of other wrongdoers than the defendant, while no defense to him, may; perhaps, be evidence in mitigation of the amount of damages. 15 Likewise there may be some exception under statutes allowing one owner to sue "for the benefit of all," 16 or where defendant's acts amount to a public nuisance and the attorney general sues to abate it upon behalf of the water-using public ; 17 in such cases ley v. Fort Lyon Co., 31 Colo. 224, 73 Pac. 249; McLean v. Farmers' etc. Co., 44 Colo. 184, 98 Pac. 16; Seven Lakes Co. v. New Loveland Co., 40 Colo. 382, 93 Pac. 485, 17 L. R. A., N. S., 329 ; Boulder etc. Co. v. Hoover (Colo.), 110 Pac. 75; Humphreys T. Co. v. Frank, 46 Colo. 524, 105 Pac. 1093 ; Diez v. Hartbauer, 46 Colo. 599, 105 Pac. 868. Idaho. Josslyn v. Daly, 15 Idaho, 137. 96 Pac. 568; Hill v. Standard Min. Co., 12 Idaho, 223, 85 Pac. 907; Montpelier Co. v. Montpelier (Idaho), 113 Pac. 741. Montana. State ex rel. Pew v. District Court, 34 Mont. 233, 85 Pac. 525. See, also, Sloan v. Byers, 37 Mont. 503, 97 Pac. 855. New Mexico. United States v. Lee (N. M.), 110 Pac. 607. Oregon. Hayden v. Long, 8 Or. 244; Browning v. Lewis, 39 Or. 11, 64 Pac. 304; McCall v. Porter, 42 Or. 49, 70 Pac. 820, 71 Pac. 976; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728; Whited v. Cavin (Or. 1909), 105 Pac. 396; Carnes v. Dalton (Or.), 110 Pac. 170. But see Brown v. Baker, 39 Or. 66, 65 Pac. 799, 66 Pac. 193 (appearing to have overlooked the point). Washington. State ex rel. McCon- ihe v. Steiner (Wash.), 109 Pac. 57; Bock v. Bono (Wash.), 110 Pac. 13. Federal courts. Gutierres v. Albu- querque etc. Co. (N. M.), 188 U. S. 545, 23 Sup. Ct. Rep. 338, 47 L. Ed. 588; Walker v. Shasta Power Co. (Cal,), 160 Fed. 856, 87 C. C. A. 660; Union Mining Co. v. Dangberg, 81 Fed. 73; United States v. Conrad Inv. Co. (Cal.), 156 Fed. 123. Miscellaneous. Long v. Louisville etc. Co., 128 Ky. 26, 107 S. W. 203, 13 L. R. A., N. S., 1063, 16 Ann. Cas. 673; Liliuokalani v. Pang Sam, 5 Hawaii, 14. See, also, infra, sec. 1233. 14 This is a matter, however, upon which there is considerable dispute. Infra, sec. 648 et seq., balance of convenience. is Gould v. Stafford, 77 Cal. 67, 18 Pac. 879, affirmed in Same v. Same, 91 Cal. 146, 27 Pac. 543; Same v. Same, 101 Cal. 32, 35 Pac. 429. See, also, Beck v. Bono (Wash.), 110 Pac. 13; Kevil v. City of Princeton (Ky. Civ. App.), 118 S. W. 363. 16 See Cloyes v. Middleburg Co., 80 Vt. 109, 66 Atl. 1039, 11 L. R. A., N. S., 693. See, also, Cal. Code Civ. Proe., sec. 382; Haese v. Heitzig (Cal., March 16, 1911), 114 Pac. 816. 17 People ex rel. Ricks etc. Co. v, Elk River Co., 107 Cal. 228, 48 Am. St. Rep. 121, 40 Pac. 486 (dictum) Peo- ple v. New York Carbonic etc. Co., 196 N. Y. 421, 90 N. E. 441. 629 Ch. 27. PROCEDURE. (3ded.) 687 perhaps the rights of all owners may be considered without their being actual parties to the suit. Possibly there may be a further exception where the action is strictly in rem (but it may be that the apparent exception there relates only to the manner of serving process). (3d ed.) 629. Joinder of Parties. In order to settle the rights of all claimants upon a stream against each other, all must, hence, be brought into court in the same suit. 18 That all the owners of outstanding rights in the stream be brought into court so that the rights of each against all may be determined by the decree, is now frequently provided by statute, as already mentioned. 188 And in the absence of a statute so command- ing it is within the inherent power of the court to order the joinder in any suit of all the other claimants. In Hough v. Porter, 19 Mr. Justice King said : ' ' The discretion of the court below in this respect was exercised by requiring all persons owning lands adjoining or claiming an interest in the waters of Silver Creek, its tributaries, or branches, to be brought in and made parties, either plaintiff or defendant, as their interests appeared, with directions to interplead as to each other, and we think the evidence adduced at the trial confirms the wisdom of the course pursued. It is consonant with public policy, and public interests require, that when in the de- termination of conflicting claims to the right to the use of public streams, for irrigation, manufacturing, or other useful purposes, it appears that many suits must eventually be brought to determine the various rights of persons whose property is to be affected by such use, it should be within the sound discretion of the trial court to require all, or any of the persons interested, to be made parties, as was done here, in order that the rights of each may be adjudicated and finally determined in one proceeding In the case at bar, however, the order of the court, a copy of 18 Charnock v. Higuerra, 111 Cal. providing a summary procedure to 473, at 481, 52 Am. St. Rep. 195, 44 establish rights omitted from or aris- Pac. 171, 32 L. R. A. 190; Frost v. ing subsequent to an adjudicating de- Alturas etc. Co., 11 Idaho, 294, 81 cree. Pac. 996. See Creer v. Bancroft etc. i 51 Or. 318, 95 Pac. 732, 98 Pac. Co., 13 Idaho, 407, 90 Pac. 228. See 1083, 102 Pac. 728. See, also, Lytle Rickey etc. Co. v. Wood, 152 Fed. 22, Creek Co. v. Perdew (Cal.), 2- Pac. 81 C. C. A. 218. (See infra, sec. 654.) 731 ; Williams v. Altnow, 51 Or. 275, iSa Infra, sees. 1206, 1222 et seq. 95 Pac. 200, 97 Pac. 539. See Idaho Stats., 1911, c. 224, p. 709, G88 (Sded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 629 which was directed to, and served upon, each, required that all should appear within a time there specified, and plead and inter- plead with respect to each other as their several interests might appear, which was in effect the same, and served the same pur- pose, as a summons, and was sufficient to require the appearance and interpleas demanded." And finally, without statute or court order, it is allowed to the parties to voluntarily join all the claimants they see fit, in an action to determine rights. Several owners on the same stream, though not holding by any common or joint title, nor any unity of design, may join as plaintiffs in an injunction suit or a suit to settle rights, or be joined as defendants M (although they cannot join or be joined in an action for damages, whether also claiming injunction or not). 21 But in the absence of statute, such court order for joinder of out- standing rights is discretionary only, and such voluntary joinder of them is permissive only. In the absence of statute, it is not essential to have them all brought in. If they remain out and the court does not think it advisable to order them in, the decree can settle nothing against them, and can only determine the relative rights of those in court ; but that it can do, and as to that the others are not neces- sary parties. They are necessary to the rendition of a decree good "against the world," but not necessary to a decree only as against the specific party who is in court. The court may determine that he is a wrongdoer against the plaintiff without determining what plaintiff's rights are against the rest of the world. "This court must deal with the situation of the parties as it finds them, and pro- 20 Barnum v. Hostetter, 67 Cal. 272, Mining Co. (The Debris Case), 8 Saw. 7 Pac. 689; Foreman v. Boyle, 88 628, 16 Fed. 25; In re North Bloom- Cal. 290, 26 Pac. 94; Miller v. High- field etc. Co., 27 Fed. 795, and au- land etc. Co., 87 Cal. 430, 22 Am. St. thorities there cited; Union Mining Rep. 254, 25 Pac. 550; Schultz v. Co. v. Uangberg, 81 Fed. 73. See Winter, 7 Nev. 130; Ronnow v. Del- Rickey etc. Co. v. Wood, 152 Fed. 22, mue, 23 Nev. 29, 41 Pac. 1074; Monte- 81 C. C. A. 218; Ames etc. Co. v. Big cito etc. Co. v. Santa Barbara, 144 Indian etc. Co., 146 Fed. 166. Cal. 578, 77 Pac. 1113; Saint v. May join in a suit to settle rights. Guerrerio, 17 Colo. 448, 31 Am. St. Creer v. Bancroft etc. Co., 13 Idaho, Rep. 320, 30 Pac. 335; Desert etc. 407, 90 Pac. 228. See, also, infra, Co. v. Mclntyre, 16 Utah, 398, 52 Pac. sees. 654, 655 (settling rights). 628; United States v. Conrad Inv. Co., 21 Foreman v. Boyle, 88 Cal. 290, 156 Fed. 131; Norton v. Colusa etc. 26 Pac. 94; Geurkink v. City of Peta- Co., 167 Fed. 202 ; Churchill v. Lauer, luma, 112 Cal. 310, 44 Pac. 570; 84 Cal. 233, 24 Pac. 107; Daly v. Senior v. Anderson, 138 Cal. 723, 72 Randall, 137 Cal. 674, 70 Pac. 784; Pac. 349. Blaisdell v. Stephens, 14 Nev. 17, 33 But see Hillman v. Newington, 57 Am. Rep. 523, 7 Morr. Min. Rep. 599 ; Cal. 56, contra concerning suit for People v. Gold Run Ditch & Min. Co., damages. 66 Cal. 138, 4 Pae. 1152; Woodruff v. 630 Ch. 27. PROCEDUEE. (3d ed.) 689 ceed to determine the rights of the persons within its jurisdiction who have been properly brought before it, where their rights can be determined without bringing in other parties who would oust the court of its jurisdiction. ' ' ^ i (3d ed.) 630. Joinder of Issue Between the Parties. Upon like prin- ciples, where there are several plaintiffs, their rights among themselves cannot be determined if they have not made issue thereof between themselves. Likewise of several defendants. 23 To determine rights of several plaintiffs or defendants inter se, they must join issue inter se. 2 * Defendant may file a cross-bill for this purpose. 1 In a recent case objection was made against adjudicating the re- lative rights of defendants as to each other, for the reason that the record did not disclose that any issue was made, or attempted to be framed, between them. And the court held: "This point we deem well taken. Such would have been within the discretionary power of the court had all the parties, by its order, been brought in, but declined to appear or plead, and a determination of their relative interests found essential to a determination: of the rights of those framing issues. 2 But the exercise of this discretion is not essential to a determination of the rights between plaintiffs and the answering defendants. The evidence adduced is also in- adequate for that purpose. The decree must therefore be modi- fied by setting aside all that part respecting the relative rights of any of the parties. We do not deem it necessary, however, to remand this cause for the purpose of trying out the matters here left unsettled, and will leave all unadjudicated points for deter- 22 Union Mining Co. v. Dangberg, 24 Bathgate v. Irvine, 126 Gal. 135, 81 Fed. 73. See, also, Sloan v. Byers, 77 Am. St. Rep. 158, 58 Pac. 442, 37 Mont. 503, 97 Pac. 855; Hough v. commented on in Montecito etc. Co. Porter, 51 Or. 318, 95 Pac. 732, 98 v. Santa Barbara, 144 Cal. 578, 77 Pac. 1083, 102 Pac. 728; Whited v. 'Pac. 1113; Strong v. Baldwin, 154 Cavin (Or.), 105 Pac. 396; Carnes v. Cal. 150, 129 Am. St. Rep. 149, 97 Dalton (Or.), 110 Pac. 170; Frost v. Pac. 178. Idaho Irr. Co. (Idaho), 114 Pac. 38; i Rickey etc. v. Wood, 152 Fed. 22, and cases cited in the foregoing sec- gi c. C. A. 218; Ames etc. Co. v. Big tions, especially section 627, supra. Indian etc. Co.. 146 Fed. 166. 23 Nevada etc. Co. v. Bennett. 30 Or. 59, 60 Am. St. Rep. 777, 45 Pac. 2 Citing Hough v. Porter, 51 Or. 472; Sloan v. Byers (1908), 37 Mont. 318, 439, 441, 95 Pac. 732, 98 Pae. 503, 97 Pac. 855; Conley v! Dyer, 43 1083, 102 Pac. 728. Colo. 22, 95 Pac. 304. Water Rights 44 690 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 631 mination in such proceeding, if any, as the parties interested may hereafter see fit to bring." 3 (3d ed.) r 631. Parties (Concluded). The owner of the water-right has the usual recourse to the courts, as he has in the protection of any other property. A mortgagee has been held to have a right of action against a water company for failure to supply water. 4 A contract of pur- chase gives the intended purchaser a right to bring an action to change the point of diversion. 5 The owner of arid agricultural lands, having a right to use the water of a river for irrigation purposes, has such an interest in the water different from that of the general public as entitles him to maintain an action to restrain deposits of mineral debris in streams tributary to such river,, which would render the water unfit for use. 6 Consumers from a corporation ditch are not necessary parties where the corporation, as itself an appropriator, sues a wrong- doer. 7 Where several water users having rights as riparian owners and by adverse use form a corporation to distribute water among themselves, the corporation, whether it becomes the owners of the water titles or only an agent, has sufficient inter- est to bring an action to quiet title against an upper claimant,, and for an injunction. 8 A stockholder may enjoin the corpora- tion from taking contracts beyond its capacity. 9 With regard to the relative status as parties of corporations and their consumers or stockholders, reference is made to a later section. 10 Both lessor and lessee-are liable to a stranger for damage caused by seepage from a pit or pond that was on the leased land at the time of the lease. 11 A tenant having the right of possession 3 Whited v. Gavin (Or.), 105 Pac. ? Montrose etc. Co. v. Loutsenhizer,, 396. 23 Colo. 233, 532, 48 Pac. 532; 4 Equitable etc. Co. v. Montrose etc. Farmers' etc. Co. v. Agricultural etc. Co., 20 Colo. App. 465, 79 Pac. 747. Co., 22 Colo. 513, 55 Am. St. Rep- 5 Wadsworth etc. Co. v. Brown, 39 149, 45 Pac. 444. Colo. 57 88 Pac 1060 The original g A D CQ y Baldwin (190 9) r owner of land for which water was 15{ . Cal / 280 100 Pae 874< appropriated held not liable to a pur- chaser of one of the tracts into which 9 McDermott v. Anaheim etc. Co., the land was divided, for diversion of 124 Cal. 112, 56 Pac. 779. water by third Persons: Booth v. 10 j f 1245 t Trager, 44 Colo. 409, 99 Pac. 60. 6 Arizona Copper Co. v. Gillespie u Canyon City v. Oxtoby (1909), (Ariz.), 100 Pac. 465. 45 Colo. 214, 100 Pac. 1127. 632 Ch. 27. PROCEDURE. (3ded.) 691 may sue a stranger, the injunction obtained becoming inoperative at the end of the lease. 12 The landlord can sue a stranger for diversion or sue a canal company on a water supply contract, though tenant is in possession, 13 but is not liable for a wrongful diversion by his tenant in the absence of concurrence or consent on the landlord's part. 14 Questions concerning tenants in com- mon are considered in an earlier chapter. 15 Questions arising under recent special water code legislation are considered elsewhere. 16 B. PLEADING AND PRACTICE. (3d ed.) 632. Jurisdiction. A diversion operates 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 coun- ties. 17 Likewise of a ditch in two States; a diversion in Montana is actionable in Wyoming into which State the ditch runs. 18 In the California case above cited, 19 plaintiff and defendant diverted the water of Kings River in Fresno County. Plaintiff's ditch was about twenty miles in length, of which about eighteen miles was in Tulare County, and the damage was sustained by plain- tiff in the last-named county, in which county the action was brought. The acts complained of being the prevention of water from flowing in plaintiff's ditch, which was located in both coun- ties, while the specific act of diversion complained of occurred in Fresno County, it was held that the subject of the action was 12 Heilbron v. Fowler etc. Canal Last Chance etc. Co. v. Emigrant etc. Co., 75 Cal. 426, 7 Am. St. Rep. 183, Co., 129 Gal. 277, 61 Pac. 960; Des- 17 Pae. 535 ; Sacchi v. Bayside Lum- eret etc. Co. v. Mclntire, 16 Utah, 398, ber Co., 13 Cal. App. 72, 108 Pac. 885 52 Pac. 628. (action for damages). l 8 Supra, sec. 344; Willey'v. Decker, 13 Heilbron v. Last Chance Water 11 Wyo. 496, 100 Am. St. Rep. 939, etc. Co., 75 Cal. 117, 17 Pac. 05. 73 Pac. 210 (citing and relying on 14 Gould v. Stafford, 101 Cal. 32, Lower Kings River etc. Co. v. Kings 35 Pac. 429. etc. Co.) ; Taylor v. Hulett, 15 Idaho, 15 Supra, sees. 320, 321. 265, 97 Pac. 39, 19 L. R. A., N. S., 16 Part VI, below. 535; Slack v. Walcott, 3 Mason, 508, For example, a South Dakota stat- Fed. Cas. No. 12,932, Story, J., at ute requires the State Engineer to be p. 516; Mannville Co. v. Worcester, served with pleadings in every water 138 Mass. 91, 52 Am. Rep. 261, suit tried in the State. S. D. Stats. Holmes, J. 1907, c. 180, sec. 15. 19 Lower Kings River etc. Co. v. 17 Lower Kings River etc. Co. v. Kings River Co. Kings River etc. Co., 60 Cal. 408; 692 (3d ed.) Pt. III. THE LAW OP PRIOR APPROPRIATION. 632 in both counties, and the action might have been brought in either. The Idaho court, having obtained jurisdiction over the person of a Wyoming appropriator, may enjoin him from injuring an Idaho appropriation, though only Wyoming courts can enforce it after obtaining a similar decree in Wyoming, based on that granted by Idaho. 20 A State engaging directly in diverting water or licensing those who are, may be sued by a lower State acting as ' 'parens patriae, ' ' and the Supreme Court of the United States will have original jurisdiction. 21 Concerning suits regard- ing interstate use or interstate streams, reference is made to a preceding section on that topic. 22 Venue or place of trial in an action to abate a nuisance lies where the injury is done, being a local action, and not where the defendants reside. 23 In California, actions concerning title to realty must be not only tried, but also commenced in the county where the realty lies. 24 Actions to quiet title to water-rights are within this. 25 An appeal from the State Engineer to a State court is remov- able to the Federal court. 1 A suit to determine priority between appropriators does not involve a Federal question merely be- cause it is concerned with section 2339 of the Revised Statutes of the United States. 2 A suit to establish water-rights resting on. Mexican grant involves no Federal question, per se. s A suit by a State to annul a Carey Act grant is removable to the Fed- 20 Taylor v. Hulett, 15 Idaho, 265, 97 Pac. 37, 19 L. R. A., N. S., 535. Compare the following: Noxious vapors created in New Jersey and passing over land in New York are actionable in New York. Ruckman v. Green, 9 Hun, 225. 21 Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. Rep. 552, 46 L. Ed. 838. 22 Supra, sec. 340 et seq. 23 City of Marysville v. North Bloomfield etc. Co., 66 Gal. 343, 5 Pac. 507 (tailings deposited on lands below stream) ; Drinkhouse v. Water- works, 80 Gal. 308, 22 Pac. 252 (threatened injury from building of a dam, injunction) ; Last Chance etc. Co. v. Emigrant Co., 129 Cal. 277, 91 Pac. 960; Litchfield v. International Co., 58 N. Y. Supp. 856 ; Cox v. Little Rock Co., 55 Ark. 454, 18 S. W. 630. 24 Const., art. 6, sec. 5. 25 Pacific Club v. Sausalito Co., 98 Cal. 487, 33 Pac. 322 (restraining order only incidental) ; Fritts v. Camp, 94 Cal. 393, 29 Pac. 867 (pol- lution of a stream held action con- cerning title) ; Miller v. Madera etc. Co., 155 Cal. 59, 99 Pac. 502, 22 L. R. A., N. S., 391; but see Miller v. Kern Co., 140 Cal. 133, 73 Pac. 836, holding an action for damages only, to a ditch, is not within the provision. 1 Waha etc. Co. v. Lewiston etc. Co. (Idaho), 158 Fed. 137. 2 Telluride etc. Co. v. Rio Grande etc. Co., 175 U. S. 639, 20 Sup. Ct. Rep. 245, 44 L. ed. 305. 3 Crystal Springs Co. v. Los An- geles, 177 U. S. 169, 20 Sup. Ct. Rep. 573, 44 L. Ed. 720. See Boquillas etc. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. Rep. 493, 53 L. Ed. 822. See supra, sec. 68. 633,634 Ch. 27. PROCEDURE. (3ded.) 693 eral courts, as a suit arising under the laws of the United States. 4 Organizing a foreign corporation in order to get into the Federal courts on the ground of diversity of citizenship may become collusive and void. 5 (3d ed.) 633. Joinder of Causes of Action. A count for an injunc- tion may be joined with one for damages. 6 A count for diversion (injury to water-right) and for injury to a ditch or other struct- ure used in connection with the water-right may he joined but must be separately stated. 7 But in a complaint in equity to en- join diversion and to have the amount of water to which plaintiff is entitled determined, these need not be separately stated. 8 A count as appropriator may be joined with one as riparian owner. 9 A plaintiff claiming alternatively as appropriator and riparian owner and also under a contract need not, it is held in Wash- ington, state these in separate counts. 10 (3d ed.) 634. Pleading (Continued) Allegations in Complaint. An appropriator 's complaint is distinct from one based on riparian rights; and an allegation that plaintiff claims as an appropriator will not allow him to recover as a riparian proprietor or vice versa. 11 The two rights may be set up in the same complaint by separate counts. 12 -The appropriator should allege that he is en- titled to the use of so much water as an appropriator, not that he is "the owner" thereof, 13 He need not allege that defendant has no right, as any right in defendant is a matter for the defense 4 State v. Three Sisters Irr. Co. Co. v. Hayes, 113 Cal. 142, 45 Pac. (Or.). 158 Fed. 346. 191. 5 Miller v. East Side Canal Co. 9 Semble, Huffner v. Sawday, 153 (1908), 211 U. S. 293, 29 Sup. Ct. Cal. 86, 94 Pac. 424. Rep. Ill, 53 L. Ed. 189. As to Fed- 10 Hutchinson v. Mt. Vernon W. eral jurisdiction on ground of di- Co., 49 Wash. 469, 95 Pac. 1023. versity of citizenship, see, also, An- n Riverside etc. Co. v. Gage, 89 derson v. Bassman, 140 Fed. 10. Cal. 410, 26 Pac. 889; San Luis etc. Jacob v. Lorenz, 98 Cal. 332, 33 v. Estrada, 117 Cal. 168," 48 Pac. Pac. 119; Watterson v. Salunbehere, 1075 ; Strong v. Baldwin, 137 Cal. 432, 101 Cal. 107, 35 Pac. 432; The Salton 70 Pac. 288. See Shenandoah etc. Sea Cases, 172 Fed. 820, 97 C. C. A. Co. v. Morgan, 106 Cal. 409, 39 Pac. 242; but see Foreman v. Boyle, 88 Cal. 802. But ef. Hutchinson v. Mt. Ver- 290, 26 Pac. 94, semble contra. non W. Co., 49 Wash. 469, 95 Pac. 7 Nevada etc. Co. v. Kidd, 37 Cal. 1023. 282; Bear River Co. v. Boles, 24 Cal. 12 Huffner v. Sawday (1908), 153 359. Cal. 86, 94 Pac. 424. 8 Patterson v. Mills, 138 Cal. 276, 13 Smith v. Green, 109 Cal. 228, 41 71 Pac.- 177; and see Silver Creek etc. Pac. 1022. 694 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 634 to plead. 14 Likewise plaintiff need not allege that his own right has not been lost by nonuser, as, if it has, it is matter of defense, to be alleged by defendant; 15 nor, in a complaint for flooding his land, need plaintiff negative that defendant ever acquired a right to do so by condemnation. 16 Plaintiff need allege only the ultimate facts showing his right and acts of defendant which, if unexplained, would be an invasion thereof. A statement that plaintiff has a priority as appropriator superior to that of defendant has been held in Colorado not a sufficient allegation of plaintiff's right, without the facts which show such appropriation and its priority. 17 But that is unsound in principle, and it is usually held that title need not be deraigned in the complaint. 18 "It was not only unnecessary, but it would have been surplusage, for plaintiff to have pleaded the historical deraignment of its title and the varying methods of its use." 19 The contrary rule violates the principle that only ultimate facts, and not evidence, are to be pleaded ; and in general, the extreme to which plaintiff is often put in filling a complaint with subordin- ate matters of evidence and in negativing matters properly defensive (which should be left to the defense to plead) if they exist at all, is one of the regrettable traps and formalities into 14 Town of Sterling v. Pawnee Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A., N. S., 238. 15 Corea v. Higuera, 153 Gal. 451, 95 Pac. 882, 17 L. R. A., N. S., 1018. 18 Bingham v. Walter (1909), 80 Kan. 617, 103 Pac. 120. 17 Carroll v. Vance, 39 Colo. 216, 88 Pac. 1069, sed qu. In Town of Ster- ling v. Pawnee etc. Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A., N. S., 238, it was held that this applied to a bill to quiet title; but in Kimball v. Northern Irr. Co., 42 Colo. 412, 94 Pac. 333, decided about the same time, the rule was held not applicable to bills to quiet title, but only to bills for injunction. The former case went so far even as to hold that plaintiff must plead his means of use to show that it is not wasteful. See, also, Hyatt, J., in Farmers' etc. Co. v. Soutaworth (1889), 13 Colo. Ill, 21 Pac. 1028, 4 L. R. A. 767; Church v. Stillwell, 12 Colo. App. 43, 54 Pac. 395; Farmers' Co. v. Agricultural Co., 3 Colo. App. 255, 32 Pac. 722; Hackett v. Larimer etc. Co. (Colo.), 109 Pac. 965. An allegation in a complaint to en- join the diversion of the waters of a creek that defendant's object was purely speculative held insufficient to raise an issue that defendant's diver- sion was not for a beneficial use. Sternberger v. Seaton etc. Co. (1909), 45 Colo. 401, 102 Pac. 168, saying: "The complaint should state the facts as to what particular use defendant has made or proposes to make of its diversion from the stream, and it is for the court to determine therefrom whether or not the use is a lawful one." 18 Corea v. Higuera, 153 Cal. 451, 95 Pac. 884, 17 L. R. A., N. S., 1018; Wutchumna Co. v. Pogue, 151 Cal. 105, 90 Pac. 362; Fudeckar v. East Riverside Co., 109 Cal. 36, 41 Pac. 1024; Beach v. Spokane etc. Co., 25 Mont. 379, 65 Pac. Ill; Hague v. Nephi etc. Co., 16 Utah, 421, 67 Am. St. Rep. 634, 52 Pac. 765, 41 L. R. A. 311; Hutchinson v. Mt. Vernon Co., 49 Wash. 469, 95 Pac. 1023. 19 Wutchumna Water Co. v. Pogue, 151 Cal. 105, 90 Pac. 362. 635 Ch. 27. PROCEDURE. (3d ed.) 695 which modern procedure has fallen, and has given rise to much of the present dissatisfaction. Although, in a suit to quiet title to an irrigation ditch, the complaint alleged plaintiff to be the owner of the ditch in fee, it did not preclude the court from finding a right or ownership in the nature of an easement. 20 Title by prescription can be proved under a general allegation of ownership. 21 Plaintiff's right should be stated in inches or gallons, and not merely by dimensions of ditch. 22 Averments of possession of land, mill and water privileges sufficiently allege appropriation. 23 The place 'of use need not be alleged. 24 A former decree, to be relied upon, must be alleged in the complaint. 25 A right to the use of an irrigation ditch may be alleged in general terms, without detailed allegation of owner- ship of right of way, headgate, and other particular details inter- fered with. 1 Complaint against water officials must contain facts showing that they were acting in excess of their official authority. 2 The allegation that "defendant is informed and be- lieves" certain facts without also alleging on information and belief that those facts do exist is insufficient. 3 An allegation that defendants threatened to take "the waters" of the river has been held an allegation that they intended to take all of it ; 4 but an alle- gation that plaintiff had a right to ' ' all the water in the creek dur- ing the dry season" has been held too indefinite for specific relief. 3 A complaint must state facts sufficient to constitute a cause of action. 6 (3d ed.) 635. Alleging Local Customs. The local customs referred to in United States Revised Statutes, section 2339, need not be al- so Bashore v. Mooney, 4 Cal. App. wood v. Freeman (1909), 15 Idaho, 276, 87 Pac. 553. 395, 98 Pac. 295. 21 Montecito etc. Co. v. Santa Bar- 2 McLean v. Farmers' etc. Co., 44 bara, 144 Cal. 576, 594, 77 Pac. 1113. Colo 184 98 Pac. 16. ' , ., n 3 Swank v. Sweetwater Co. (1909). n i I 1 ?, 9 S 9 v 7 ' v - ' 15 Idaho > 353 > 98 Pac - 297 ; Bank * Cal. 181, 22 Pac. 76. North America y Rind ( ' c c>) 5J 23 McDonald v. Bear R. etc. Co., 13 Fed. 279. Cal. 220, 1 Morr. Min. Rep. 626. 4 "Miller v. Bay Cities Co., 157 Cal. 24 Rincon etc. Co. v. Anaheim etc. 256, 107 Pac. 115. See, also, infra, Co., 115 Fed. 543. Contra, Miller & sec. 639, note 11. Lux v. Rickey, 127 Fed. 573. 5 Porter v. Pettingill (Or.), 110 25 Davis v. Chamberlain, 51 Or. 304, Pac. 393. 98 Pac. 154. 6 But see concurring opinion of i Miller v. Kern etc. Co. (1909), Shaw, J., in Duckworth v. Watson- 154 Cal. 785, 99 Pac. 179. See Lock- ville Co., 158 Cal. 206, 110 Pae. 927. 696 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 636 leged or proved. In Oregon and Washington there has been some confusion on the point that has not occurred elsewhere. The principle is, as stated in Basey v. Gallagher, 7 that the rules of appropriation have everywhere in the West now passed into judicial decision or statute or both, thereby superseding the original customs on which decisions and statutes are based. The Oregon court now says it takes judicial notice of the customs, reaching the same result, but in a roundabout way, which still bases appropriation on custom instead of on decision and statute. 8 In Washington 9 it is held that judicial notice will be taken of the fact that at least that portion of the State east of the Cascade Mountains was included in the territory where the customary law of miners was in force, and the right of appropriating water for agricultural and manufacturing purposes existed, although the common-law rule of riparian ownership was a part of the law of the State. 10 This seems to be making separate rules for sepa- rate parts of the State. 11 (3d ed.) 636. Evidence. It has been said 12 that most water suits are tried upon the theory that each would avail himself of what- 7 87 U. S. (20 Wall.) 670, 22 L. Ed. 452, 1 Morr. Min. Rep. 683. Cf. Drake v. Earhart, 2 Idaho, 716 (750), 23 Pac. 543. 8 Parkersville etc. Dist. v. Wattier (Or.), 86 Pae. 775. 9 Isaacs v. Barber, 10 Wash. 124, 45 Am. St. Rep. 772, 38 Pac. 871, 30 L. R. A. 665. 10 See, also, Drake v. Earhart, 2 Idaho, 716 (750), 23 Pac. 541; Craw- ford etc. Co. v. Hathaway, 67 Neb. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889. But see Tel- luride etc. Co. v. Rio Grande etc. Co., 175 U. S. 639, 20 Sup. Ct. Rep. 245, 44 L. Ed. 305, and 187 U. S. 579, 23 Sup. Ct. Rep. 178, 47 L. Ed. 307. 11 See supra, sec. 112. In the early California days it was enacted: "In actions respecting min- ing claims, proof shall be admitted of the customs, usages or regulations es- tablished and in force at the bar, or diggings, embracing such claim, and such customs, usages, or regulations, when not in conflict with the constitu- tion and laws of this State, shall govern the decision of the action." Cal. Stats. 1851, Practice Act, sec. 621, now sec. 748, Code Civ. Proc. (This statute was early copied in al- most all the other' Western States; e. g. Utah Rev. Stats. 1898, sec. 3521. See, also, Riborado v. Quang Pang M. Co., 2 Idaho, 136 (144), 6 Pac. 125; MaDett v. Uncle Sam Mining Co., 1 Nev. 188, 90 Am. Dec. 484, 1 Morr. Min. Rep. 17.) It is many years since this statute has been even referred to in California water cases, the reason being, as above stated, that the cus- toms have long been superseded by de- cision and statute based upon them, both as to waters and as to mines. Some recent statutes provide that local customs and rules shall not be displaced thereby; e. g., N. M. Stats. 1907, p. 71, sec. 57 ; Idaho Stats. 1905, p. 174, amending Stats. 1903, p. 223, sec. 9. 12 Hough v. Porter, 51 Or. 318, 195 Pac. 732, 98 Pae. 1083, 102 Pac. 731. Another recent case says: "Perhaps there is in all water-right cases some mysterious relation between the quan- tity of water and the quantity of language a law of supply and de- mand which requires that the volume of language shall increase in direct 636 Ch. 27. PROCEDURE. (3ded.) 697 ever defense the court, after trial, might discover he had, and, as a result, plead all defenses and rights available, with the appar- ent hope and expectation that they might, at least, come within hailing distance of some of them; and this dragnetic system of pleading and proof is not unusual in the trial of this class of cases. Pursuant to such policy, the litigants introduce all evi- dence at hand deemed likely to have any bearing upon the case, regardless of the claim of right or defense under which their proof might eventually be classed; a very loose procedure, how- ever, not to be commended, and resulting chiefly from the con- fusion which has surrounded rights in water by appropriation. The party alleging the existence of a water-right has the bur- den of proof and must prove it unequivocally. 13 The burden of proving an abandonment 14 or a right by adverse use 15 is on the party asserting it. One claiming a subsequent appropriation has the burden of pro.ving that there was a surplus over the prior ap- propriation. 16 The value of expert evidence has been doubted. 17 Expert evi- dence is not admissible as to whether a certain body is a lake or a running stream. 18 ratio to the deficiency in volume of water." Redwater Co. v. Reed (S. D.), 128 N. W. 702. 13 Smith v. Duff (1909), 39 Mont. 374, 133 Am. St. Rep. 582, 102 Pac. 981. 14 Supra, see. 567. 15 Supra, sees. 579, 587. 16 Petterson v. Payne, 43 Colo. 184, 95 Pac. 301. Perry v. Calkins (Gal.), 113 Pac. 136. 17 Robertson v. Wilmoth, 40 Colo. 74, 90 Pac. 95; Twaddle v. Winters, 22 Nev. 88, 85 Pac. 280, 89 Pac. 289. "In its investigation the court can- not say that the testimony of experts as to the amount of water used or required must be accepted as against the farmers of the vicinage who had been living in the valley and using the water for several years. It may be difficult for the courts to deter- mine with mathematical certainty the precise amount of water running in a stream, or the carrying capacity of ditches and flumes, when the testi- mony, as in the present case, is con- flicting ; but the experts, who ought to know, differ as widely in their meas- urements as do the ordinary farmers in their method of calculation. A ref- erence to what was said by this court in Union Mill & Mining Co. v. Dang- berg, 81 Fed. 99, 100, without cdm- ment, shows that even experts are liable to make mistakes in their methods of measuring water, and in their judgment as to the amount of water necessary to irrigate an acre of land." Rodgers v. Pitt, 129 Fed. 932. By statute in Nevada it is provided that "the court is hereby authorized to employ a hydraulic engineer or other expert to examine and make report under oath upon any subject matter in controversy, the cost of such employment to be equitably appor- tioned by the court and charged against the parties to the suit as costs. Nev. Stats. 1907, p. 30, sec. 19. Such a statute was held uncon- stitutional in People v. Dickerson (Mich.), 129 N. W. 198. See, also, as to expert evidence, Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755 ; Evans v. Lakeside D. Co., 13 Cal. App. 119, 108 Pac. 1027. 18 Duckworth v. Watsonville Co., 158 Cal. 206, 110 Pac. 927. 698 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 637 It has been said that testimony as to the quantity of water re- quired for proper irrigation of lands in a certain vicinity amounts only to opinion evidence, 19 and that the estimate by the nonexpert witnesses as to the quantity of water in a ditch or diversion must always be taken with caution. 20 Judicial notice has been taken (without actual proof) "that the flow from irrigated lands is heaviest in the fall"; 21 that where the climate is arid and the state of cultivation high, "the court might almost take judicial notice that in years of ordinary rainfall there is no surplus of water in the stream over that used by the various owners under claim of right"; 22 that light sage- brush soil requires irrigation to make it productive ; 23 that a claim that seventeen inches per acre is needed for irrigating land is absurd. 24 Official maps of the State Engineer are admissible in evidence without authentication, though their correctness may be dis- puted by evidence. 25 Records of the Federal land office have been held not admissible to prove the date of settlement by a riparian owner in a controversy with a nonriparian owner ; l but the recitals in a certificate of final entry issued by the local land office have been held admissible evidence of the facts so recited. 2 Best evidence of a decree entered in a judgment-book is the decree as so spread on the records. 3 Parol proof of possession and use of a water-right for irrigation is prima facie evidence of title. 4 (3d ed.) 637. Damages. In alleging damages, the quantity of water diverted should be alleged, and recovery will be limited to that; i Whited v. Cavin (Or.), 105 Pae. Pac. 481. See Nev. Stats. 1909, p. 31, 396. sees. 8, 26b. 20 Ison v. Sturgill (Or.), 109 Pac. 1 Driskill v. Rebbe, 22 S. D. 242, 579 117 N. W. 1135. 21 Smith v. Duff (1909), 39 Mont. * ^"i" SSS^Sfc 51 . , (1909), 45 Colo. 470, 101 Pac. 976. 8 Wright v. County of Sonoma v >> ' (1909), 156 Cal. 475, 134 Am. St. Rep. l Cal -Stats. 1885 c. 115 p. 98: 140, 105 Pac. 409. See Hagerman Co. owe v. Yolo etc Co 8 Cal. App. 167, v. McMurray (N. M.), 113 Pac. 823. P ae - 3<9; S. C., 157 Cal. 503, 9 See McLellan v. Brownsville Co. Fac ' J97 ' (Tei. Civ. App.), 103 S. W. 206; 700 (3d ed.) Pt. III. THE LAW OF PKIOR APPROPRIATION. 638 the velocity of the stream below that to which the wheels are adapted. 12 (3d ed.) 638. Measure of Damages. The measure of damages for failure to deliver, or for diversion of water for irrigation, or for injury to a ditch, is, where plaintiff has no crops (the injury having prevented him from beginning cultivation), the deprecia- tion in permanent value (sale or rental value) of plaintiff's estate in the land from loss of water, 13 being the difference between the market value of the land or plaintiff's estate therein prior to the injury and after the injury, 14 and not the value of producible crops. 15 In determining the value of the land, a plan or adaptability to use land for a reservoir site cannot be con- sidered in determining its market value. 16 12 Schodde v. Twin Falls etc. Co. (Idaho), 161 Fed. 43, 88 C. C. A. 207, sed qu. See supra, sees. 310 et seq., 313. is Burrows v. Fox (Cal.), 30 Pac. 768; Denver etc. Co. v. Dotson, 20 Colo. 304, 38 Pac. 322 (destruction of a ditch) ; Young v. Extension D. Co., 13 Idaho. 174, 89 Pac. 296; City of Florence 'v. Calmet, 43 Colo. 510, 96 Pac. 183; Stock v. Hillsdale, 155 Mich. 375, 119 N. W. 435; Crow v. San Joaquin Co., 130 Cal. 310, 62 Pac. 562, 1058; Pallett v. Murphy, 131 Cal. 192, 63 Pac. 366. 14 Ibid. The measure of damages for perma- nent injury to land resulting from pollution of a stream by mining or sewage is the difference between the market value of the land prior to the injury and after the injury. Morris v. Missouri Ry. (1909), 136 Mo. App. 393, 117 S. W. 687. See Kellogg v. City of Kirksville, 132 Mo. App. 519, 112 S. "W. 296, concerning measure of damages for pollution. 15 Reisert v. New York, 69 App. Div. 302, 74 N. Y. Supp. 673 (Gag- non v. Molden, 15 Idaho, 727, 99 Pac. 765, holding evidence of improvements made in anticipation of receiving water not admissible in evidence). 16 Especially not, when the pro- posed plan is unpractical and fanci- ful. In re Board of Water Supply, 58 Misc. Rep. 581, 109 N. Y. Supp. 1036. The California court has recently said in this connection: "It is seen, therefore, that this court by its latest utterances has definitely aligned itself with the great majority of the courts in holding that damages must be measured by the market value of the land at the time it was taken; that the test is not the value for a spe- cial purpose, but the fair market value of the land in view of all the pur- poses to which it is naturally adapted ; that therefore while evidence that it is 'valuable' for this or that or an- other purpose may always be given and should be freely received, the value in terms of money, the price, which one or another witness may think the land would bring for this or that or the other specific purpose is not admissible as an element in determining that market value. For such evidence opens wide the door to unlimited vagaries and speculations concerning problematical prices which might under possible contingencies be paid for the land, and distracts the mind of the jury from the single question that of market value the highest sum which the property is worth to persons generally, purchas- ing in the open market in considera- tion of the land's adaptability for any proven use." Sacramento etc. Ry. Co. v. Heilbron (1909), 156 Cal. 408, 104 Pac. 979. 638 Ch. 27. PBOCEDUEE. (3ded.) 701 But where cultivation has actually begun and there are growing crops, the measure of damages is not only the loss (if any) in permanent value of plaintiff's estate, but also the value of the producible crop (probable value at maturity, and not merely at time of destruction) less the expense of producing and marketing it. 17 In such case evidence is admissible of the loss, during the water shortage, in value of the crops naturally produced as com- pared with those produced by plaintiff in previous years, 18 and of the difference in value, at the time the water is shut off, of the crop with a water-right, and its value without one, 19 and of the size and market value of crops on neighboring land ; 20 and, it has been held, the actual net loss of money profit on the crops in mar- keting them ; 21 and the value of any portion of the crop saved may be deducted. 22 Evidence is admissible (against a public 17 California. Teller v. Bay etc. Co., 151 Cal. 209, 90 Pac. 942, 12 L. E. A., N. S., 267; Dennis v. Crocker etc. Co. (1910), 6 Cal. App. 58, 91 Pac. 425; Salstrom v. Orleans etc. Co., 153 Cal. 551, 96 Pac. 292; Lowe v. Yolo etc. Co., 157 Cal. 503, 108 Pac. 297 ; Sacchi v. Bayside Lumber Co., 13 Cal. App. 72, 108 Pac. 885. Colorado. Northern etc. Co. v. Eichards, 22 Colo. 450, 45 Pac. 423; Tubbs v. Roberts, 40 Colo. 498, 92 Pac. 220. Montana. Carron v. Wood, 10 Mont. 500, 26 Pac. 388; Watson v. Colusa etc. Co., 31 Mont. 513, 79 Pac. 14. Nebraska. Clague v. Tri-State etc. Co., 84 Neb. 499, 133 Am. St. Eep. 637, 121 N. W. 570. Nevada. Candler v. Washoe Lake Co., 28 Nev. 151, 80 Pac. 751, 6 Ann. Gas. 946. New Mexico. Smith v. Hicks, 14 N. M. 560, 98 Pac. 136, reviewing the authorities extensively. Texas. Gulf etc. Co. v. McGowan, 73 Tex. 355, 11 S. W. 336; San An- tonio etc. Co. v. Kiersey (Tex. Civ. App.), 81 S. W. 1045. Utah. Lester v. Highland Boy Co., 27 Utah, 470, 101 Am. St. Rep. 988, 76 Pac. 341, 1 Ann. Cas. 761. Washington. Shotwell v. Dodge, 8 Wash. 337, 36 Pac. 254; Hutchinson v. Mt. Vernon etc. Co., 49 Wash. 469, 95 Pac. 1023. Where there are growing crops and several years elapse before the injury is complete, the landowners are en- titled to damages for the loss in value of their land and also for the yearly injury to their crops caused by the continuing nuisance. Watson v. Co- lusa, Parrott Min. etc. Co., 31 Mont. 513, 79 Pac. 14, measure of damages for pollution. 18 Hutchinson v. Mt. Vernon W. Co., 49 Wash. 469, 95 Pac. 1023. 19 Clague v. Tri-State Co. (1909), 84 Neb. 499, 133 Am. St. Rep. 637, 121 N. W. 570. 20 Smith v. Hicks, 14 N. M. 560, 98 Pac. 144; Lester v. Highland etc. Co., 27 Utah, 470, 101 Am. St. Eep. 988, 76 Pac. 341, 1 Ann. Cas. 761; Dennis v. Crocker etc. Co., 6 Cal. App. 58, 91 Pae. 425 (damage to crops from flooding). 21 Tubbs v. Eoberts, 40 Colo. 498, 92 Pac. 220. 22 Candler v. Washoe etc. Co., 28 Nev. 151, 80 Pae. 751, 6 Ann. Cas. 946. In a recent case, logging operations caused overflow which injured dairy land. Plaintiff holding the land by a lease, the measure of damages was held to be the loss in value of his leasehold, and evidence was allowed of special adaptability of his land for certain crops; of the yield of previous years ; the number of cows grazed the previous year; of having to rent new land to feed his cows after the flood; cost of destroyed headgates; work re- quired to replace old conditions ; cost of feed purchased for cows; and vari- 702 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 639 service company refusing to supply water for irrigating land) of the cost of restoring the land to the condition it would have been in if supplied with water, and the value of its use during the time lost. 23 If one alleges only loss of profits from crops, evidence of loss of rental value of the land has been held inadmissible. 24 (3d ed.) 639. Decree. Decrees should be as definite as language ean make them. 25 ''A practical view ought to be taken of all the conditions, surroundings and situations. The rights of all parties must be protected by the decree. The difficulty of enforcing it without the necessity of bringing independent suits should be avoided, if possible. Certainty in its terms, positiveness in its requirements, justice in its conclusions, will materially aid in the accomplishment of such a purpose." 1 Decrees awarding a party "enough to irrigate his land," 2 or "sufficient water for house- hold purposes" 3 or "one good irrigation stream of \vater, " 4 have been held defective for uncertainty. A decree should specify second-feet or definite fractions of a stream, 5 and not merely dimensions of ditch. 6 If a decree is based on capacity of ous other details. Sacchi v. Bayside 24 North Alabama etc. Co. v. Jones, Lumber Co., 13 Cal. App. 72, 108 Pac. 156 Ala. 360, 47 South. 144, sed qu. 885. The quantum of damages in the ad In one ease (Lester et al. v. High- damnum clause is usually held an im- land Boy Gold Min. Co., 27 Utah, 470, material allegation. 101 Am. St. Rep. 988, 76 Pae. 341, 1 25 Authors v. Bryant, 22 Nev. 242, Ann. Cas. 761), the court says: "In 38 Pac. 439; Patterson v. Ryan cases of destruction of growing crops (Utah), 108 Pac. 1118. it is proper and important to intro- 1 Judge Hawley, in Union Mining duce and admit evidence showing the Co. v. Dangberg, 81 Fed. 73. kind of crops the land is capable of 2 Walsh v. Wallace, 26 Nev. 299, producing, the kind of crops de- 99 Am. St. Rep. 692, 67 Pac. 914; stroyed, the average yield per acre of Leavitt v. Lassen Irr. Co. (1909), 157 each kind on the land not destroyed Cal. 82, 106 Pac. 404 (modifying and on other similar lands in the im- Stanislaus W. Co. v. Bachman, 152 mediate neighborhood, cultivated m Cal. 716, 93 Pac. 858, 15 L. R. A., like manner, the stage of growth of N. S., 359) ; Lassen Irr. Co. v. Long, the crops, at the time of injury or 157 Cal. 94, 106 Pac. 409. destruction, the expense of cultivating, 3 Powers v. Perry, 12 Cal. App. 77, harvesting and marketing the crops, 106 Pac. 595. and the market value at the time of 4 Smith v. Phillips, 6 Utah, 376, 23 maturity, or within a reasonable time Pac. 932. after the injury or destruction of the 5 Nephj etc. Co. v. Vickers, 15 Utah, crops." 374, 49 Pac. 301. 23 Lowe v. Yolo Co. (1910), 157 6 Lakeside etc. Co. v. Crane, 80 Cal. Cal. 503, 108 Pac. 297, saying it may 181, 22 Pae. 76. See Logan v. Guich- be different where the destruction is ard (Cal. 1911), 114 Pac. 989, hold- of growing trees, which cannot be re- ing "water to the extent of three stored. inches" too uncertain. 639 Ch. 27. PROCEDURE. (3d eel.) 703 ditch alone, it is erroneous, as it should be further limited to beneficial use, or a limitation to beneficial use will be implied and read into the decree. 7 Concerning this, reference is also made to preceding sections. 8 No definite quantity of water can be decreed where the evi- dence does not disclose the amount entitled. 9 But a decree not specifying the number of acres to be irrigated is not necessarily void. 10 Where a court finds that plaintiff is entitled to the use of all the water from October 1st to May 1st, each year, and the amount is difficult to ascertain, the decree may enjoin defend- ants absolutely during that period without specifying any quantities. 11 A decree concerning a water-right does not per se concern a ditch, and vice versa. 12 ''The point is made that the decree should have permitted the defendants to divert the water, on condition that they returned it to the river above plaintiff's lands, no less diminished than it would have been in its natural flow to the point of return.* It may be that a -decree so limited would have been proper if the evidence had shown that the defendants were able and willing to make such return of the water. ' ' 13 A decree concerning a stream governs also as to its tributaries. 14 An erroneous entry of a decree in the judgment-book may be amended to speak the truth as to what the decree was. 15 A decree, except in cases where a large number of parties have been brought in and the proceedings have been lax, is presumed satis- factory, on appeal, as to those not appealing. 16 7 Infra, sec. 642. 63 Pae. 1045; Nevada etc. Co. v. Supra, sees. 471, 478; infra, sec. >Ki< *d, 3 L Cal - 2 * 2 - , 642 i 3 Huffner v. Sawday, 153 Cal. 86, TI u /innfiN KA r\ 94 Pac. 424. Citing Gould v. Eaton, ? an Sw ( v } i 117 Cal. 539, 49 Pac 577, 38 L. R. A 448, 103 Pac 58 1007; Rodgers v. Montecito Valley Co. v. Santa Overacker, 4 Cal. App. 333 8, Pac. Bar k 144 Cal> 578 ^ 77 Pac> m3< 1107. See, also, infra, sees. 883, 884. s ^ Mmer y ^ atieg c ^ 10 Bates v. Hall, 44 Colo. 360, 98 Cal _ 2 56, 107 Pac. 115. Pac. 3. 14 Josslyn v. Daly, 15 Idaho, 137, 11 Miller v. Bay Cities W. Co., 157 96 Pac. 568. Cal. 256, 107 Pac. 115; Los Angeles 15 Bates v. Hall, 44 Colo. 360, 98 v. Hunter, 156 Cal. 603, 105 Pac. 755, Pac. 3, dictum, holding decree as en- citing Vernon Irr. Co. v. Los Angeles, tered binding, however, until corrected 106 Cal. 237, 39 Pac. 762 ; City of in the book. Los Angeles v. Pomeroy, 124 Cal. 597, 16 Hough v. Porter, 51 Or. 318. 95 57 Pac. 585. See Porter v. Pettingill Pac. 732, 98 Pac. 1083, 102 Pac. 728; (Or.), 110 Pac. 393. Seaweard v. Duncan, 47 Or. 640, 84 12 Parke v. Boulware, 7 Idaho, 490, Pac. 1043. 704 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 640 A decree is not res adjudicata as to rights purchased by one of the parties subsequent to the decree from a stranger to the suit. 17 How far a decree based upon the common law of riparian rights is res adjudicata after the State has changed the law and repu- diated that doctrine, quaere. The court can make reasonable regulations in the decree for its enforcement, fixing the times, quantity and manner of taking the water. 19 As to decrees under the special water code procedures for determining rights, reference is made to a later chapter. 20 Service of process (upon parties to the suit) by publication will, in some cases, be sufficient to support decrees in rem or quasi in rem; 21 but no decree, whether in rem or in personam, can bind persons who were not made parties (nor in privity with parties) to the action. 22 (3d ed.) 640. Miscellaneous Matters of Practice. Summons may be served by publication in a newspaper where the statutes so pro- vide, and the action is one in rem or quasi in rem, and the defend- ants so served are unknown or concealed or out of the State. 23 In confirmation proceedings upon the organization of irrigation districts, the statutes usually provide service by publication. 24 The facts and existence of a nuisance to a water-right and the amount of damages are to be tried by a jury in a suit at law for damages unless a jury is waived. 25 But there is no right to 17 Josslyn v. Daly, 15 Idaho, 137, entitled to the use thereof, the costs 96 Pac. 568. for which should be taxed against 18 See Union Mining Co. v. Dang- each in such proportion as the court berg, 81 Fed. 73. may deem just and equitable." Hough 19 Burr v. Maclay R. Co. (1909), v. Porter, 51 Or. 318, 95 Pac. 732, 154 Cal. 428, 98 Pac. 260 ; Hough v. 98 Pac. 1083, 102 Pac. 728. See, also, Porter (1909), 51 Or. 318, 95 Pac. Whited T. Cavin (Or. 1909), 105 Pac. 732, 98 Pac. 1083, 102 Pac. 728. 396. "If, at any time deemed necessary 20 Infra, sec. 1222 et seq. by it, the court should require the 21 , . 122? sheriff, or other officer or person as it may designate for the purpose, includ.- 52 Supra, sec. 625 et seq. ing an engineer or other assistant, as 23 See infra, sec. 1227. may be required, to fix at the points 24 See Knowles v. New Sweden Irr. of diversion or other proper places Dist. (1909), 16 Idaho, 217, 101 Pac. suitable boxes or headgates, with a 81, holding the defendant in that case view to being able, in accordance with not entitled to personal service as dis- this decree, properly to measure, regu- tinguished from the publication, late, and distribute the water between 25 Chessman v. Hale, 31 Mont. 557, those who, under this decree, may be 79 Pac. 257, 68 L. R. A. 410. 640 Ch. 27. PROCEDURE. (3ded.)705 a jury in a suit in equity for injunction, though joined with a claim for damages. 1 A jury in equity cases, if one is had, is only advisory. 2 Costs may be awarded or apportioned as the court may deem proper, or each party adjudged to pay his own costs, where the result of the suit is beneficial to all. 3 Defendants may file cross-bills. 4 In an action by a riparian owner, defendant's claim as appropriator is properly set up by a cross-complaint. 5 To authorize a private person to maintain an action to abate a public nuisance, he must show a special injury different in kind, and not merely in degree, from that suffered by the public gener- ally. 8 Where a court of equity has acquired jurisdiction of a suit to enjoin a continuing trespass upon land, it may also, t to prevent a multiplicity of suits, award damages for the injury already done, although the same would also be recoverable by an action at law. 7 Ordinarily, a judgment by default will not be disturbed; but water suits being sui generis, the court may exercise its discre- tion, and where a quantity of water was awarded to plaintiff, as against nonanswering defendants, far greater than necessary for his use, the decree will be modified by reducing the quantity. 8 Water codes and special statutes providing water commis- sioners are elsewhere considered ; 9 but without statute, courts may appoint commissioners to enforce decrees, 10 or appoint a receiver. 11 Pending irrigation litigation a bond may be given in 1 McCarthy v. Gaston etc. Co., 144 6 Arizona Copper Co. v. Gillespie Cal. 542, 78 Pac. 7. (Ariz.), 100 Pac. 465. 2 Pealer v. Gray's etc. Co. (1909), 7 The Salton Sea Cases, 172 Fed. 54 Wash. 415, 103 Pac. 451; Davis v. 792, 97 C. C. A. 214. Martin, 157 Cal. 657, 108 Pac. 866. 8 Whited v. Cavin (Or.), 105 Pac. 3 Hough v. Porter, 51 Or. 318, 95 396. Pae. 752, 98 Pac. 1083, 102 Pac. 728; 9 Infra, Part VI. Compare, some- Boise etc. Co. v. Stewart, 10 Idaho, what differently, Mont. Laws 1909, p. 38, 77 Pac. 31, 321. As to costs, see, , House Bill, 106; Laws 1905, p. also, Ison v. Sturgill (Or.), 110 Pac. 145; Laws 1911, c. 43, p. 72. 535. 10 Montezuma Co. v. Smithville Co. See, also, infra, sec. 1231. (Ariz.), 218 U. S. 371, 31 Sup. Ct. 4 Rickey etc. Co. v. Wood, 152 Fed. Rep. 67, 45 L. Ed. 1074 (citing the 22, 81 C. C. A. 218; Ames etc. Co. second edition of this book); Sullivan v. Big Indian etc. Co., 146 Fed. 166. v. Jones (Ariz.), 108 Pac. 476. 5 Van Bibber v. Hilton, 84 Cal. 585, n Idaho Fruit Co. v. Great Western 24 Pac. 308, 598. Co., 17 Idaho, 273, 105 Pac. 562. Water Rights 45 706 (3d ed.) Pt. III. THE LAW OF PEIOE APPROPRIATION. 641 lieu of an injunction. 12 An injunction has been held, in Califor- nia, not in force until the order is entered in the proper book. 13 C. INJUNCTION. (3d ed.) 641. Irreparable Injury. The most efficient remedy is, of course, the writ of injunction, whereby interference > is stopped forthwith. The chief requisites to support a case for an injunc- tion are as follows : The injury involved must be irreparable. 14 An injury to a ditch which will not destroy its efficiency and can be easily repaired will not support a case for an injunction the owner will be left to his less drastic remedies. 15 Instances of irreparable injury are such as pollution of the water, or that the life of fruit trees will be destroyed, 16 or threatened destruction of headgates and other water appliances. 17 This element (irreparable injury) is not present where plain- tiff has already taken or can easily take means to prevent the injury, 18 or where defendant has abated the nuisance before the decree, 19 an injunction will be refused. (3d ed.) 642. Injuria Sine Damno. As to all rights not depending upon use, a continuous violation may be an irreparable injury without causing actual present damage ; since the continued vio- lation, if not stopped, may ripen into a title by prescription divesting the title of the owner. Nominal damages will be given at law, or on injunction in equity. This is the well-established doctrine of "injuria sine damno." The action in such case is 12 Cal. Code Civ. Proc., sec. 532; 243; Hudson v. Dailey, 156 Cal. 617, and probably this is within the in- 105 Pac. 748. herent power of a court of equity in 16 Smith v. Stearns Rancho Co., 129 the absence of statute. Cal. 58, 61 Pac. 662 ; Cushman v. 13 Rickey L. & W. Co. v. Glader Highland Ditch Co., 3 Colo. App. 437, (1908), 153 Cal. 179, 94 Pac. 768. 33 Pac. 344. Regarding pollution, see 14 Ladd v. Redle, 12 Wyo. 362, 75 supra, sec. 522. Pac. 691; Krause v. Oregon Steel Co., 17 Hayois v. Salt R. Co. (1903), 8 77 Pac. 833; Watts v. Spencer, 51 Or. Ariz. 285, 71 Pac. 944. 262, 94 Pac. 39 ; Strang v. City of New 18 Atchison v. Peterson, 1 Mont. York, 127 N. Y. Supp. 231. " 561, 20 Wall. 507, 22 L. Ed. 414, 1 15 Clark v. Willett, 35 Cal. 534, 4 Morr. Min. Rep. 583. Morr. Min. Rep. 628 ; Lorenz v. Wai- 19 McCarthy v. Gaston etc. Co., 144 dron, 96 Cal. 243, 31 Pac. 54; Jacobs Cal. 542, 78 Pac. 7. v. Day, 111 Cal. 571, at 580, 44 Pac. 642 Ch. 27. PROCEDURE. (3d ed.) 707 allowed for the vindication and preservation of plaintiff's title. 120 The chief illustration is in regard to rights of way over land. Claiming and exercising adversely a right of way over another's land does him irreparable injury if continued, because, if not stopped, a prescriptive right to the way will in time arise, and although the landowner never uses that portion of his land and suffers no present damage from the mere passing over it, yet he would finally lose his title to it, or suffer an encumbrance thereto. Consequently ditch-building over private land will be absolutely enjoined, even though the actual money damage as yet suffered by the landowner is nominal only. 21 So likewise the continued flooding of another's land will be enjoined; and even though the flood has already occurred and completely ruined the land, yet the title thereto still remains to be protected. 22 So, also, under the common law of riparian rights, since a riparian proprietor may use the water when he will or not at all (his right not depending upon present use), he may enjoin any diversion (beyond a reasonable riparian use of another riparian proprie- tor) although showing no actual present use or present damage, if the diversion in time would, by prescription, impair the plaintiff's capacity to use the water on his land when he will in the future. 23 And so also, under the earlier history of the law of prior appropria- tion, when the appropriator's right was primarily a possessory one to the flow of a portion of the stream to capacity of ditch, rather than a right to a use, the doctrine of injuria sine damna was applied to protect the flow to that capacity, whether plain- tiff was using the water or not (so long as he did not mean to abandon it), and although he suffered no actual present damage to use of the water. Consequently we find Professor Pomeroy, writing in former days, saying: 24 "Hence, also, the complaint 20 Brown v. Ashley, 16 Nev. 312. 189, Fed. Cas. No. 17,322, a great case It was first fixed by the decision of in the law of riparian rights. Infra, Lord Holt in Ashby v. White, 2 Ld. sec. 816. Raym. 938, 92 Eng. Reprint, 126, con- 21 Vestal v. Young, 147 Cal. 715, sidered one of his greatest decisions, 721, 82 Pac. 381, 383; Winslow v. having been a case where a voter was Vallejo, 148 Cal. 723, 113 Am. St. allowed to recover damages against Rep. 349, 84 Pac. 191, 5 L. R. A., one who prevented him from voting, N. S., 851. See supra, sec. 221 et seq., though his vote was intended for the ditches on private land, man who in fact won the election and 22 The Salton Sea Cases, 172 Fed. the voter hence suffered no actual 792. damage. It was first clearly applied 23 Infra, sec. 816. to water-rights by Justice Story in 24 Pomeroy on Riparian Rights, p. Webb v. Portland Cement Co., 3 Sum. 108, sec. 69. 708 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 642 in an action by an appropriator of water to restrain the unlaw- ful diversion of the stream need not allege that the plaintiff is in a position to use the water himself," etc. In the note are col- lected a number of earlier authorities applying this to the rights of appropriators of water. 25 But there has been a change going steadily forward in the law of prior appropriation; namely, the transition we have fre- quently pointed out from a possessory system to one depending upon use. 1 Actual use, rather than actual diversion, to-day creates the right; beneficial use rather than capacity of ditch measures it; nonuse rather than voluntary abandonment loses it; and in the present connection present damage to actual use is becoming necessary to secure injunctions. Cases now are refusing an injunction to an appropriator who is not using the water, and granting it only where he is using it and suffers actual present damage to present use from defendant 's act. The modern rule is to regard injunctions granted to appropriators as based strictly upon beneficial use and as not restraining a defendant while the plaintiff is not himself using the water, even if the decree does not (as it should) expressly so declare; 2 so that only where there is actual damage to present use would an injunction be granted to prevent prescription. In the absence of such damage no prescription would arise. 3 Injunction will not be granted where the act would not ripen into an easement, and causes no actual damage, as where there is water enough 25 Moore v. Clear Lake etc. Co., 68 43 Colo. 268, 95 Pac. 932; Drach T. Cal. 146, 8 Pac. 816; Stanford v. Isola (Colo.), 109 Pac. 748; Mann Felt, 71 Cal. 249, 16 Pac. 900; Conk- v. Parker, 48 Or. 321, 86 Pac. 598; ling v. Pacific etc. Co., 87 Cal. 296, 25 Gardner v. Wright, 49 Or. 609, 91 Pae. 399; Walker v. Emerson, 89 Cal. Pac. 286; Crawford etc. Co. v. Needle 456, 26 Pac. 968; Spargur v. Hurd, 90 Rock etc. Co. (Colo.), 114 Pae. 655. Cal. 221, 27 Pac. 198; Mott v. Ewing, See, also, infra, sec. 1231 et seq. 90 Cal. 231, 27 Pac. 194; Barnes v. "Whenever it is not needed by the Sabron, 10 Nev. 217, 4 Morr. Min. plaintiffs, it should be turned to the Rep. 673 ; Rigney v. Tacoma etc. Co., defendants, if they have any beneficial 9 Wash. 576, 38 Pac. 147, 26 L. R. A. use for it, and not permitted to waste. 4^5; Lytle Creek Co. v. Perdew, 65 It may be implied by the law; but it Cal. 447, 4 Pac. 426; Union Min. Co. is better to have decrees specify, and v. Dangberg, 81 Fed. 73, citing cases. especially so in this case, in view of See cross-references supra, sec. 139. the testimony stated and of the per- 1 See cross-references supra, sec. petual injunction, that the award of 139. water is limited to a beneficial use at 2 Gotelli v. Cardelli, 26 Nev. 382, such times as it is needed." Twad- 69 Pac. 8; Twaddle v. Winters, 29 die v. Winters, 29 Nev. 88, 85 Pac. Nev. 88, 85 Pac. 283, 89 Pac. 289; 280, 89 Pac. 289. Medano etc. Co. v. Adams, 29 Colo. 3 Supra, sec. 588. 317, 68 Pae. 431; Woods v. Sargent, 643 Ch.27. PROCEDURE. (3ded.) 709 for all, 4 or where the diversion is during plaintiff's nonuse. 5 In stating the distinction between the law of appropriation and that of riparian rights in this respect it has been said: "In so far, however, as the rights of plaintiffs rest upon prior appropria- tion and use, it was no doubt necessary for them to show that the proposed diversion would diminish the flow of water which they had been receiving for use upon their lands," 6 At the same time, while this change has been going steadily forward, it is not complete. 7 The chief thing to be noted is the period (fixed by statute, usually) before nonuse causes for- feiture of right; which statutory period implies that the rule of injuria sine damno applies to protect a flow (although unused) during the statutory period. Reference is made to other sec- tions in this regard. 8 As the remedy sought in water cases is usually by injunction, most of the fundamental questions of 'the law of waters can be viewed as wrapping themselves around the application of the rule of injuria sine damno, to those who prefer to take up the law from the standpoint of procedure, for this admitted rule can never be applied without first deciding what the nature of the right is. (3d ed.) 643. Prospective. The damage must be prospective. The interference must be likely to continue in the future, or there must be a threat of continuance. 9 An injury to a ditch already 4 dough v. Wing, 2 Ariz. 364, 17 8 See cross-references supra, sec. Pac. 453; Davis v. Chamberlain, 51 139; especially sees. 476 et seq., and Or. 304, 98 Pac. 154; Bates v. Hall, 577. 44 Colo. 360, 98 Pac. 3, and cases just It should be further noted that the above cited. change mentioned is in regard to in- T> e-i /-v' 010 oc junctions or actions for damages. T> ^o g QO % i 6 n^ irS% VPS The rule of injuria sine damno re- Pac. 732, 98 Pac. 1083, 102 Pac 728, ma}ns unimpa i re a even under the law citing cases See cases collected gen- ior iation in equitable erally sees. 4,8 481, supra, under the bills p ^ ^ me , guch as act \ ons to topic "Beneficial Use. remoye ft doud upOQ tme g uch a Waldron ' 96 14 Loud Gold M. Co. v. Blake (C. uai. Z4cs, di rac. 04. c j 24 Fed 49 Tho Wood . oJ V' K^ 8 * i T? 'I ma ' 23 Kan - 217 33 Am. Rep. 156; ?'r 6 i ^17 int ; T> 718 V i f Daiey ' Clar k v. Cambridge Irr. Co, 45 Neb. ~ 6 , 1 Ca i' 5in'5 So ; V< 798, 64 N - W - 239. S ee Lux v. Hag- Holland, 179 Fed. 969 gin 69 Cal. 255, 10 Pac. 674; Monte- v w ^ V in?^r W 9<5 ' SB etc. Co. v. Santa Barbara, 144 N 'i, ^ ' ! TS Cal - 5 78, 77 Pac. 1113. See/also, 13 The case turned also on peculiar gtock y _ fc. of Hillsdale (ig ^ } 155 facts regarding Alaska mining claims, Mich _ 3?5 fa N w ^ t ^ on the balance of convenience, on the ' fact that the ditch owner was en- 5 Infra, sec. 651. titled to condemn right of way, and 16 Verdugo W. Co. v. Verdugo on something like blackmail by claim (1908), 152 Cal. 655, 93 Pac. 1021, owners and other peculiar facts. Mio- per Mr. Justice Shaw. 645 Ch.27. PROCEDURE. (3ded.) 711 by the plaintiff, accompanied by an expenditure of money or effort on the part of the defendant. It must also appear that it will be inequitable to enforce the claim. The reason upon which the rule is based is not alone the lapse of time during which the neglect to enforce the right has existed, but the changes of condition which may have arisen during the period in which there has been neglect." Laches or acquiescence must be distinguished from estoppel, elsewhere considered, as estoppel would bar a right, and there must be some degree of turpitude to raise it, whereas laches but bars an injunction because of lack of diligence in seeking the remedy while leaving an action at law for damages. 17 (3d ed.) 645. Making Out Right at Law. There is no necessity of first making out the legal right at law. 18 In Lux v. Haggin, the court says: ''Under our codes the riparian proprietor is not required to establish his right at law by recovering a judgment in damages before applying for an injunction. The decisions (in cases of alleged nuisances) based on the failure of the com- plainant to have had his right established at law have no appositeness here. Here the plaintiff must, indeed, clearly make out his right in equity, and show that money damages will not give him adequate compensation. If he fails to do this, relief in equity will be denied; but, if he proves his case, relief will be granted, although he has not demanded damages at law. In the case at bar the plaintiffs do not admit that damages would con- stitute compensation, and ask for an injunction until they shall recover such compensation in an action for damages. The decisions which bear on that class of cases, and which require of the plaintiff to show that he has promptly sought redress at law, have little applicability. ' ' 19 At the same time, in cases of exceptional difficulty, where there is grave conflict of evidence, and where an action at law for damages is already begun before the injunction was applied 17 See supra, see. 593 et seq., es- appropriator in the Tuolumne case, toppel. on the ground that legal and equi- T> 18 ^ T H i aggiD> f r ah 25 rv, a r table relief under the combined or re- * Pac. 674; Tuolumne etc. Co. v. Lnap- inan, 8 Cal. 392, 11 Morr. Min. Rep. formed practice are administered in 34. the same court (whenever the equitable l While this is said of a riparian ru i es are not overlooked), proprietor, the same was said of an 712 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION 646 for, it is advisable (though not compulsory) to have the right first established at law. 20 (3d ed.) 646. Mandatory Injunction (Abatement of Nuisance by Suit). Mandatory injunctions may be granted to order abate- ment of a nuisance, such as the removal of the means of diver- sion, 21 or removal of a railway embankment, 22 or the removal of an obstruction from the stream, 23 or to compel the removal of dams 24 which have wrongfully diverted water onto plaintiff's property, the effect of which will be to destroy trees and cut gulches, although plaintiff has not established his right to dam- ages by a verdict of jury or finding of court, 25 or to put in a measuring-box, 1 or to compel restoration of the water diverted. 2 Acts may be ordered done in another jurisdiction. 3 The decree may be molded, enjoining on condition, instead of mandatory. Thus pollution by tailings from a gold quartz-mill will be enjoined at suit of a prior appropriator whose use for irrigation is impaired thereby, the decree being framed to restrain the operation of the defendant's mill "until it has made suitable provision to prevent injury to plaintiff's irrigating ditches, and to the water used by him. ' ' 4 (3d ed.) 647. Defenses to Injunction. By way of defense to an injunction suit, the defense that the water would not reach plaintiff anyway has often been asserted, and, the authorities conflict where the acts of defendant are, within possibility, a eon- 20 McCarthy v. Bunker Hill etc. Co. 101 Pac. 168 (part of a dam ordereu (Idaho). 164 Fed. 927, 92 C. C. A. taken down); The Salton Sea Cases, 259. 172 Fed. 792, 820, 97 C. C. A. 214, 21 Rigney v. Tacoma etc. Co., 9 242. Wash. 576, 38 Pac. 147, 26 L. R. A. 25 Allen v. Stowell, 145 Cal. 666, 425 (removal of dam) ; Ramsay v. 104 Am. St. Rep. 80, 79 Pac. 371, 68 Chandler, 3 Cal. 90, 4 Morr. Min. Rep. L. R. A. 223. 240 ; Nicholson v. Getchell, 96 Cal. 1 Elliott v. Whitmore, 10 Utah, 246, 394, 31 Pac. 265. 37 Pac. 461. 22 International etc. Ry. V. Davis 2 Montecito etc. Co. v. Santa Bar- (Tex. Civ. App.), 29 S. W. 483. bara, 144 Cal. 578, 77 Pac. 1113. 23 Nicholson v. Getchell, 96 Cal. 3 The Salton Sea Case:;, 172 Fed. 394, 31 Pac. 265; Johnson v. Superior 820, 97 C. C. A. 242. Court, 65 Cal. 567, 4 Pac. 576 ; Evans * Brown v. Gold Coin etc. Co., 48 v. Ross (Cal.), 8 Pac. 88 (dictum'). Or. 277, 86 Pac. 361. For a case re- 24 Bingham v. Walter (1909), 80 fusing a mandatory injunction, see Kan. 617, 103 Pac. 120; Wilhite v. Lanham v. Wenatchee Co., 48 Wash. Billings etc. Co. (1909), 39 Mont. 1, 337, 93 Pac. 522. 648 Ch. 27. PROCEDURE. (3ded.) 713 tributing cause. Injunction was granted, for example, in one case,* saying such defense is as old as irrigation and perhaps as old as trespass itself. 6 In denying the validity of the defense, a recent case says that while the natural flow may not reach plaintiff on the surface, the upper diversion might deprive him of the benefit of the subflow. 7 (3d ed.) 648. Balance of Inconvenience Between the Parties. Another defense on which the authorities are in great conflict is that known as "the balance of convenience" or "comparative hardships." The cases conflict as to the propriety of the rule as to balance of convenience and also as to its application. It is sometimes said that the balance of convenience will not be considered ; 8 that slight damage to plaintiff is no defense, 9 and that expense to defendant is not to be considered. 10 In one case it is said that 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 precaution to keep the money damage small. That is no defense to an injunction, the court held, 11 saying: "But even had the defendants after having admitted the property rights of plaintiffs in their ditch, as alleged in their complaint, admitted their intention to wash away the ground upon which it was constructed, as alleged by plain- tiffs, and alleged .in justification of such purpose their design to substitute in place of so much of plaintiff's ditch as they should 6 Morris v. Bean, 146 Fed. 436. sec. 562, note 24. See 22 Harvard For examples where the injunc- Law Review, 596, note. tion was refused on a showing that . 9 Carron v. Wood, 10 Mont. 500, the stream would dry up anyway be- 26 Pac. 388, and cases heretofore fore reaching plaintiff, or not reach cited. him for other reasons, see Paige v. 10 Cole Silver M. Co. v. Virginia Rocky Ford etc. Co., 83 Cal. 84, 21 etc. Co., 1 Saw. 470, 7 Morr. Min. Pac. 1102, 23 Pac. 875; Union Min. Rep. 503; Fed. Cas. No. 2989; Suf- Co. v. Dangberg (C. C. Nev.), 81 Fed. folk etc. Co. v. San 'Miguel etc. Co., 73; Raymond v. Wimsette, 12 Mont. 9 Colo. App. 407, 48 Pac. 828. See 551, 33 Am. St. Rep. 604, 31 Pac. 537; Wilhite v. Billings etc. Co. (1909), 39 Gutierrez v. Wege, 145 Cal. 730, 79 Mont. 1, 101 Pac. 168. Pac. 449; West Point etc. Co. v. "Against a clear and explicit rule Maroni etc. Co., 21 Utah, 229, 61 Pac. of law, no argument from inconveni- 16; Booth v. Trager (1909), 44 Colo. ence, however forcibly urged, can pre- 409, 99 Pac. 60. See supra, sec. 279. vail." Judge John R. Garber in Van 7 Huffner v. Sawday, 153 Cal. 86, Sickle v. Haines, 7 Nev. 249. 94 Pac. 424. See infra, sec. 1078. n Gregory v. Nelson, 41 Cal. 278, 8 6 Pomeroy's Equitable Remedies, at 289, 12 Morr. Min. Rep. 124. 714 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 648 wash away, a flume 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 them to consummate their designs, upon their filing a bond payable to plaintiffs, con- ditioned 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 in- vasion of the property rights of one private party to serve the wishes, convenience or necessities of another private party. Such a principle, if once adopted by judicial tribunals upon ground of necessity in view of the peculiar relations and character of private property rights of miners on the public domain, would readily be invoked as applicable to other property 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." 12 On the other hand, many cases say that because of the rule known as the "balance of convenience," an injunction may be refused; 13 that is, because the loss to the appropriator (plaintiff) would be small, as compared to the loss to the defendant if his works were enjoined. Thus, no injunction will be granted if the defendant will restore to the stream the amount he has been tak- ing from it. 14 "Where the title to the property is in dispute between the parties, the extent of inconvenience and expense to which the defendant would be subjected by the granting of the 12 See Pomeroy on Riparian Rights, ' Bunker Hill Co. (Idaho), 164 Fed. see. 67; Weiss v. Oregon etc. Co., 13 927, 92 C. C. A. 259; City of Aber- Or. 496, 11 Pac. 255; High on In- deen v. Lytle etc. Co. (Wash.), 108 junctions, sec. 795 ; Woodruff v. North Pac. 945 ; William v. Heath, 1 L. T., Bloomfield etc. Co., 18 Fed. 753, 9 N. S., 267; Shaw J., concurring in Saw. 441; Teel v. Rio Bravo Oil Co., Miller v. Bay Cities W. Co., 157 Gal. 47 Tex. Civ. App. 153, 104 S. W. 423. 256, 107 Pac. 115, citing Peterson v. 13 Slade v. Sullivan, 17 Cal. 102, 7 Santa Rosa, 119 Cal. 391, 51 Pac. 557; Morr. Min. Rep. 419 ; Clark v. Willett, Jacob v. Day, 111 Cal. 571, 580, 35 Cal. 534, 4 Morr. Min. Rep. 628; 44 Pac. 243; 2 High on Injunctions, Heilbron v. Fowler etc. Canal Co., 75 4th ed., sec. 470; 2 Beach on Injunc- Cal. 426, 7 Am. St. Rep. 183, 17 Pac. tions, sec. 1067. 535; Modoc etc. Co. v. Booth, 102 14 Montecito etc. Co. v. Santa Bur- Cal. 151, 36 Pac. 431; McCarthy v. bara, 144 Cal. 578, 77 Pac. 1113. 648 Ch. 27. PROCEDURE. (3ded.)715 injunction, as compared with the injury the plaintiff would be likely to suffer if refused, often forms an important consideration in determining the right to an injunction." 15 The refusal of an injunction because of the rule concerning the balance of conven- ience is perhaps illustrated in the following case. A mining com- pany was depositing tailings 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. 16 It was held in another case that where, in an action to recover damages and to enjoin defendant from maintaining a ditch upon plaintiff's land, it ap- pears that the land was of little value ; that the injury to the land was not real ; that the damages were merely nominal ; that defend- ant was not insolvent; and that plaintiff's remedy at law was adequate, then the court did not err in refusing to grant an in- junction. 17 Says a recent case applying the principle: "Such mischief as appellant is likely to feel from the insistence of respondent that its water supply be kept pure and clear can be obviated at an expense so trifling that compliance with the order of the court cannot be called a hardship or work a loss of prop- erty rights. On the other hand, any obstruction tending to the pollution of the waters of Stewart Creek might work irreparable mischief, reaching far beyond the inconvenience of the land- owner. ' ' 18 The rule as to the balance of convenience, or comparative hard- ship, is more favored in refusing a preliminary injunction than a permanent one ; 19 while, on the other hand, it is equally clear that it can apply only in equity and has no application to an action at law for damages. 20 15 Real Del Monte M. Co. v. Pond is City of Aberdeen v. Lytle etc. M. Co., 23 Cal. 82, 7 Morr. Min. Rep. Co. (Wash.), 108 Pac. 945. 452. Citing Hicks v. Compton, 18 19 California etc. Co. v. Enterprise Cal. 210; 3 Daniell's Chancery Prac- etc. Co. (C. C. S. D. Cal.), 127 Fed. tice, 1860; Adams' Equity, 357; 741. In Contra Costa W. Co. v. City Bruce v. Delaware & Hudson Canal of Oakland, 165 Fed. 518, it was said Co., 19 Barb. (N. Y.) 371. to be the settled rule on preliminary in- 16 Edwards v. Allouez Co., 38 Mich. junctions. See, also, Spring Valley 46, 31 Am. Rep. 301, 7 Morr. Min. Co. v. San Francisco, 165 Fed. 712. Rep. 577. 20 See McCarthy v. Bunker Hill 17 Hoye v. Sweetman, 19 Nev. 376, etc. Co. (Idaho), 164 Fed. 927, 92 12 Pac. 504, and see Mann v. Parker, C. C. A. 259 ; Wilhite v. Billings etc. 47 Or. 321, 86 Pac. 598; Montecito Co., 39 Mont. 1, 101 Pac. 168. etc. Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113. 716 (3ded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 649 (3d ed.) 649. Same Hardship on the Public. The same conflict ap- pears where the hardship is on the public instead of on a private party. Here again Mr. Pomeroy states that the better rule is that an injunction should not be refused on that account. 21 Professor Pomeroy 22 in discussing the general question of public policy in the law of waters 23 said: "The following observations concerning the influence which the 'public interests' should have upon the decisions of cases involving private rights are of weighty importance in this community as well as in Nevada and every other State. While courts most certainly have a legislative func- tion, since the great body of common law and of equity has been built up by courts, it should never be forgotten that courts do not rightfully possess the power of legislating from motives of mere policy and expediency. The duty of courts is to declare and protect private rights of suitors by applying or extending some established principle or doctrine to new conditions of facts. The court say: 24 'Before proceeding to an investigation of the legal questions really involved in the case, we may state, once for all, that the fact that the case is of great interest to the public, whose rights, it is claimed, "are seriously disturbed by the deci- sion," is a consideration which, in very doubtful cases, may, and perhaps should, have some weight with judicial tribunals. But that the interests of the public should receive a more favorable consideration than those of any individual, or that the legal rights of the humblest person in the State should be sacrificed to the weal of the many, is a doctrine which, it is to be hoped, will never receive sanction from the tribunals of this country. The public is in nothing more interested than in scrupulously protect- ing each individual citizen in every right guaranteed to him by the law, and in sacrificing none, not even the most trivial, to further its own interests. ' }>25 21 Pomeroy's Equitable Remedies, tion for public interest asserted by an sec. 531, but citing conflicting au- appropriator claiming that no law of thorities. waters but appropriation should be 22 The work on "Equity Jurisdic- recognized, a matter fully considered tion" was written by Professor Pom- elsewhere. Supra, sees. 112 et seq., eroy, and after. Ms death his son 167 et seq. added the two volumes on "Equitable 24 Citing Van Sickle v. Haines, 7 Remedies." Nev. 249, at 259, 14 Morr. Min. Rep. 23 Specifically in connection with 503. whether the court could deny a right 25 Pomeroy on Riparian Rights, of a riparian owner out of considera- sec. 119. 649 Ch. 27. PROCEDURE. (3ded.)717 A California case dealing with percolating water recently said, per Mr. Justice Henshaw: l "We do not set forth the small quan- tity of the land so irrigated out of the tract of forty or fifty square miles with any idea that because the use was little and the value small the defendant and the inhabitants of Corona which it supplied should in any way receive any preference, or should for such reason be thought to have any superior right. Such an argument has no standing in a court of law and is dis- tinctly repudiated." 2 Another expression is: 3 "In a state of society the rights of the individual must to some extent be sacri- ficed to the rights of the social body; but this does not warrant the forcible taking of property from a man of small means to give it to the wealthy man, on the ground that the public will be indirectly advantaged by the greater activity of the capitalist. Public policy, I think, is more concerned in the protection of individual rights than in the profits to inure to indivduals by the invasion of those rights. ' ' 4 On the other hand, there is the great volume of decisions under the "Colorado doctrine" that out of public policy the courts may deny the rights of riparian owners. 5 So there are cases cited in the next section looking to hardship upon the public in conflicts between mining and agriculture. And there are cases consider- ing comparative hardship upon the public in other ways; such as those in a later section denying injunctions against distributers of water serving the public. And the reader is acquainted with Mr. Roosevelt's position that judges should decide according to public interest. 1 Newport v. Temescal W. Co., 149 3 McCleery v. Highland Boy Gold Cal. 531, 87 Pac. 372, 6 L. R. A., N. Min. Co. (C. C.), 140 Fed. 951. S., 1098. 4 See, also, Sullivan v. Jones & 2 See, likewise, Lux v. Haggin, 69 Laughlin Steel Co., 208 Pa. 540, 57 Cal. 255, 10 Pac. 674, and Miller v. Atl. 1065, 66 L. R. A. 712. Madera Co., 155 Cal. 59, 99 Pac. 502, In Pennington v. Brinsop etc. Co., 22 L. R. A., N. S., 391, refusing to L. R. 5 Ch. D. 769, injunction against reject the rights of riparian owners pollution by a colliery Was granted, out of "public policy." But see Mr. An argument based on the ground Justice Henshaw in San Joaquin Co. that a large force of colliery em- v. Fresno Flume Co. (Cal. 1910), 158 ployees will be thrown out of work, Cal. 626, 112 Pac. 182; and Mr. Jus- considered, but held not &uch balance tice Shaw in Katz v. Walkinshaw, 141 of inconvenience as to be sufficient to Cal. 116, 99 Am. St. Rep. 35, 70 Pac. justify refusal of injunction. 663, 74 Pac. 766, 64 L. R. A. 236, ad- 5 Supra, sees. 112 et seq., 167 et justing the law of percolating water on seq. grounds of public policy. 718 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 650 (3d ed.) 650. Same Conflict Between Mining and Agriculture. The question has been much mooted in the West in conflicts be- tween mining interests and agricultural interest upon streams because of mining debris or tailings polluting the streams, and, as such, involves two large classes of the public, rather than the parties to the suit alone ; that is, the community of laborers, store- keepers and others dependent upon mining for their occupation, and the community lower down the stream dependent upon agri- culture. 6 As such, these cases involve the question of balance of hardship on the public as well as upon the defendant itself. The following recent cases illustrate the tendency of present decisions: 7 "A number of eminent courts support the conten- tion of appellant that the comparative injury to the parties in granting or withholding relief must also be considered. 8 .... It seems to us that to withhold relief where irreparable injury is, and will continue to be, suffered by persons whose financial interests are small in comparison to those who wrong them is in- consistent with the spirit of our jurisprudence. It is in effect saying to the wrongdoer, 'If your financial interests are large enough so that to stop you will cause you great loss, you are at liberty to invade the rights of your smaller and less fortunate neighbors.' We prefer the doctrine adhered to by Judge Hawley in his dissenting opinion in Mountain Copper Co. v. United States, 9 and by Judge Sawyer in Woodruff v. North Bloomfield Gravel Min. Co. 10 In the latter case, it is said : ' Of course great interests should not be overthrown on trifling or frivolous grounds, as where the maxim ' ' De minimis non curat lex ' ' is applic- able; but every substantial, material right of person or property is entitled to protection against all the world. It is by protecting the most humble in his small estate against the encroachments of large capital and large interests that the poor man is ultimately enabled to become a capitalist himself. If the smaller interest must yield to the larger, all small property rights, and all smaller and less important enterprises, industries, and pursuits would sooner or later be absorbed by the larger, more powerful few ; and their development to a condition of great value and importance, 6 In this regard reference is made 8 Citing McCarthy v. Bunker Hill & to a preceding chapter upon pollution. Sullivan Min. etc. Co., 164 Fed. 927. 7 Arizona Copper Co. v. Gillespie 9 142 Fed. 625, 73 C. C. A. 621. (Ariz.), 100 Pac. 465. Italics ours. 10 (C. C.), 18 Fed. 753, 8 Saw. 628. 650 Ch. 27. PROCEDURE. (3ded.) 719 both to the individual and the public, would be arrested in its incipiency. ' To the same effect are the remarks of Judge Mar- shall in McCleery v. Highland Boy Gold Min. Co., 11 wherein he says: 'The substantial contention of the defendant is that it is engaged in a business of such extent, and involving such a large capital, that the value of the plaintiff's rights sought to be pro- tected is relatively small, and that therefore an injunction, destroying the defendant's business, would inflict a much greater injury on it than it would confer benefit upon the plaintiff. Un- der such circumstances, it is asserted, courts of equity refuse to protect legal rights by injunction and remit the injured party to the partial relief to be obtained in actions at law. Stated in an- other way, the claim in effect is that one wrongfully invading the legal rights of his neighbor will be permitted by a court of equity to continue the wrong indefinitely on condition that he invest sufficient capital in the undertaking. I am unable to accede to this statement of the law. If correct, the property of the poor is held by uncertain tenure, and the constitutional provisions for- bidding the taking of property for private use would be of no avail. As a substitute, it would be declared that private property is held on the condition that it may be taken by any person who can make a more profitable use of it, provided that such person shall be answerable in damage to the former owner for his injury.' ' In a recent case the Idaho court refused to consider that its decree enjoining the deposit of tailings in streams would depopulate Shoshone County and cause the abandonment of all mining, 12 saying: "It is earnestly urged by counsel for respond- ents that if this court should hold that there is error in sustaining the demurrers to the complaints, or either of them, it would re- sult in 'the depopulation of Shoshone County, the abandonment of all mining and milling therein, and the consequent bankruptcy of the inhabitants thereof.' Deplorable as this might be, if true, it furnishes no excuse for the court to shirk its responsibilities in disposing of the question before us on the merits. The law is no respecter of persons, corporations or individuals, and in its crea- tion and enforcement reaches out and protects the lone settler in his rights, let them be ever so meager, as well as the capitalists, the corporation or individual with it or his millions The 11 (C. C.), 140 Fed. 951. 12 Hill v. Standart Min. Co., 12 Idaho, 223, 85 Pac. 908. 720 (3d ed.) Pt. III. THE LAW OF PRICE APPROPRIATION. 650 law does not measure the rights of litigants by the amount in- volved, nor the manner in which it may affect others not parties to the litigation." Reference may be further made to the "Debris Cases" in California, already considered. 13 On the other hand, this Idaho case quotes the following expres- sion from McCarthy v. Bunker Hill etc. Co. 14 per Judge Beatty: "Without detailing the reasons, such order would mean the clos- ing of every mine and mill, of every shop, store, or place of busi- ness in the Coeur d'Alenes. There are about twelve thousand people, the majority of whom are laboring people dependent upon the mines for their livelihood ; not only would their present occu- pation cease, but all these people must remove to other places, for the mines constitute the sole means of occupation, and when they finally close, Wallace and Wardner, Gem and Burke and their surrounding mountains will again become the abode only of silence and wild fauna. Any court must hesitate to so act as to bring such results." The case last quoted refused the injunc- tion and went to the United States circuit court of appeals, where the decision refusing the injunction was affirmed, without preju- dice to an action for damages, and to a later suit for injunction should the damage suffered by plaintiff sufficiently increase over that so far actually inflicted. The court examines the decisions in the supreme court of the United States and holds the grant- ing of the specific remedy by injunction to be discretionary (the plaintiff having other less drastic remedies), and that this discre- tion should be exercised in the public interest rather than against it. The court also says: "Furthermore, where, as in the present case, it is sought to enjoin a lawful business, the court should give due consideration to the comparative injury which will re- sult from the granting or refusal of the injunction sought. ' ' 15 There is also a much-discussed Pennsylvania case (usually dis- approved, however) where injunction against pollution of a stream by mine refuse was refused, partly, at least, upon the ground of hardship upon the mining public. 16 Likewise it should 13 Supra, "Pollution," sees. 527, 259. See, also, Oroville v. Indiana 528. etc. Co. (Cal. 1908), 165 Fed. 550. 14 (Idaho), 147 Fed. 981 (a case of 16 Pennsylvania Coal Co. v. Sander- pollution of a stream by mine tail- son, 113 Pa. 126, 57 Am. St. Rep. 445, ings). For the same case on appeal, 6 Atl. 453. The decision has, how- see 164 Fed. 927, 92 C. C. A. 259. ever, been widely disapproved. See is McCarthy v. Bunker Hill etc. Co. Young v . Bankier etc. Co. (H. of L.), (Idaho), 164 Fed. 927, 92 C. C. A. ' [1893] App. Cas. 691; Roaring etc. 650 Ch. 27. PROCEDUEE. (3ded.) 721 be noted that the recent Arizona case quoted above 17 refused the injunction because the case did not present such a balance of hardship on public interest upon its facts, rather than that it disputed the rule. 18 It appeared (and this was the chief reason for denying this defense) that the shut-down of the great mines involved would affect only one-third of the mining plant and would be only temporary, because impounding works for the debris might be built; while as to the public, the injury thereto from the injunction was not clear, and the injury to a whole irrigation community from a refusal was patent. The court thus did not deny the rule, but only denied that the case was such as to call for its application. The supreme court of the United States refused a writ of cer- tiorari in McCarthy v. Bunker Hill Co., supra; and in the case of New York v. Pine, considered in the next section below, unequivo- cally gave its support to one phase of the doctrine that hardship upon the public may be ground for refusal of equitable relief. Public policy, public interest or public hardship cannot deny* to any man his rights so long as our constitutions protect them (hence the conflict which has waged about the "Colorado doc- trine" denying riparian rights); if public interest so demands, the law of eminent domain, after hearing and compensation, is open. But considering now specifically the remedy by injunction an equitable remedy the writer's understanding of the matter as a general principle of equity is that extreme balance of hard- ship upon defendant or upon third persons, or especially upon the public, is properly ground for refusal of an injunction if clearly showing that the injunction will work more injustice than justice ; remembering that the remedy is an extraordinary one, discretion- ary to some degree with the chancellor; the refusal not barring the right, and still leaving the remedy by an action at law for damages (or by assessment of damages in the equity suit). Go. v. Anthracite etc. Co., 212 Pa. if Arizona Copper Co. v. Gillespie 115, 61 Atl. 811; Bowling etc. Co. v. (Ariz.), 100 Pac. 465. Ruffner, 117 Tenn. 180, 100 S. W. 18 The court said: "Counsel press 116, 9 L. R. A., N. S., 923, 10 Ann. upon us the proposition that we should Cas. 581 ; Straight v. Hover, 79 Ohio, consider the comparative damage that 263, 87 N. E. 174, 22 L. R. A., N. S., will be done by granting or withhold- 276; Teel v. Rio Bravo etc. Co., 47 ' ing an injunction in this case, alleg- Tex. Civ. App. 153, 104 S. W. 420; ing that the effect of an injunction Williams v. Haile Min. Co. (S. C.), 66 will be to stop the operation of ex- S. E. 117. tensive works, deprive thousands of Water Bights 46 722 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 651 (3d ed.) 651. Same Against Public Service Companies. Where the public interest is represented by a public service company, defend- ant, having the power of eminent domain, an injunction may be refused (upon tender of damages) because of the public interest in having the operations of defendant continued. The leading water case in support of this rule is the decision of the supreme court of the United States in New York v. Pine, 19 where, after the city of New York had built and was using city waterworks, a private owner "upon the stream below two years later sought to enjoin the continued diversion of the water; and it was held that such a long delay barred the action, especially as the city had ex- pended a vast sum, the work had been completed, and the popula- tion were dependent thereon; that a court of equity, in which relief was sought, would not place a man in a position where he can enforce an extortionate demand, having waited until defend- ant was tied up with expensive works, and public necessity had arisen. In a recent case arising in California out of the break of the Imperial Canal, the United States circuit court of appeals ruled that a landowner whose land was flooded by the break in the canal was not entitled to a decree against the distributing company owning the canal ''of such a positive and sweeping character that it would practically result in destroying all other interests in Imperial Valley. ' ' 20 The rule is now well established in California in percolating water cases. 21 It is stated as follows by Mr. Justice Shaw in a persons of employment, and cause loss Jacobsen (Alaska), 146 Fed. 680, 77 and distress to other thousands. It is C. C. A. 106 ; Boquillas Co. v. Curtis, undoubtedly true that a court should 213 U. S. 339, 29 Sup. Ct. Rep. 493, exercise great care and caution in act- 53 L. Ed. 822, dictum; Stock v. City ing where such results are to follow." of Hillsdale, 155 Mich. 375, 119 N. W_ The case involved a conflict of inter- 435. est between the mines at Clifton and 21 Barton v. Riverside W. Co., 155 Morence and the farmers of the upper Cal. 509, 101 Pac. 790, 23 L. R. A. f Gila Valley, the farmers having, in N. S., 331; Montecito W. Co. v. Santa December, 1907, before Judge S. F. Barbara, 144 Cal. 578, 77 Pac. 1113; Nave, secured an injunction against Newport v. Temescal W. Co., 149 Cal. the deposit of tailing in the San Fran- 531, 87 Pac. 372, 6 L. R. A., N. S. r cisco River, which was affirmed on 1098; Verdugo W. Co. v. Verdugo appeal in an opinion by Mr. Justice (1908), 152 Cal. 655, 93 Pac. 1021. Campbell. See, also, Miller v. Madera Co., 155 19 185 U. S. 93, 22 Sup. Ct. Rep. Cal. 59, 99 Pae. 502, 22 L. R. A., N. 592, 46 L. Ed. 820. S., 391. And Miller v. Bay Cities W. 20 The Salton Sea Cases, 172 Fed. Co., 157 Cal. 256, 107 Pac. 115, both 820, 97 C. C. A. 242. See, also, Me- recognizing the principle, but holding Carthy v. Bunker Hill Co., 164 Fed. it inapplicable to the facts presented. 927, 92 C. C. A. 259; Miocene Co. v. See, also, Crescent Canal Co. v. Mont- 651 Ch. 27. PROCEDURE. (3ded.) 723 percolating water case: "Where the complainant has stood by while the development was made for public use, and has suffered it to proceed at large expense to successful operation, having reasonable cause to believe it would affect his own water supply, the injunction should be refused, and the party left to his action for such damages as he can prove." 22 A very recent case has unequivocally established this doctrine in California percolating water cases, and is quoted at some length in that connection hereafter. 23 In California this has, as yet, been applied only in percolat- ing water cases, the cases where it was urged against a riparian owner on a stream having held it inapplicable upon the facts be- cause plaintiff was not chargeable with any unnecessary delay in bringing suit and because no public use had yet actually arisen. 21 gomery, 143 Cal. 252, 76 Pac. 1032, 65 L. R. A. 940; Logan v. Guichard (Cal. 1911) , 114 Pac. 989 ; Stevinson v. San Joaquin etc. Co. (Cal.), March 20, 1911, rehearing granted April 19, 1911; Burr v. Maclay etc. Co. (Cal.), June 22, 1911. 22 Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236. Citing Fresno etc. Co. v. Southern Pacific Co., 135 Cal. 202, 67 Pac. 773; South- ern Cal. Ry. Co. v. Slauson, 138 Cal. 342, 94 Am. St. Rep. 58, 71 Pac. 3o2, which were railway cases. In a later California percolating water case, where an injunction was refused (chiefly upon other grounds, as to which see infra, sec. 1051), Mr. Justice Henshaw said: "And, finally, upon this proposition it may be said that where the interests of the public are involved and the court can arrive in terms of money at the loss which plaintiff has sustained, an absolute in- junction should not be granted, but an injunction conditional merely upon the failure of the defendant to make good the damage which results from its work. Such an action, if success- ful, should be regarded in its nature as the reverse of an action in con- demnation. The defendant in effect would be held to be damaging private property without just compensation first made to the owner, and failing to do so, should be enjoined from further damage." Newport v. Tem- escal W. Co., 149 Cal. 531, 87 Pac. 372, 6 L. R. A., N. S., 1098. 23 Barton v. Riverside W. Co., 155 Cal. 509, 101 Pac. 790, 23 L. R. A., N. S., 331, quoted infra, sees. 1054, 1171. 24 "The last point made by appel- lant is in the nature of an estoppel in- voked against the plaintiff. It is in- sisted that no relief by injunction should be granted the plaintiff, because it is claimed that plaintiff knowingly stood by while appellant, as a public service corporation and at great ex- pense and notoriously and publicly, constructed a large and extensive sys- tem of works designed for the public use, and brought them to completion before the commencement of this ac- tion; that under this state of alleged facts plaintiff is precluded from all right to equitable relief, and its only remedy is an action at law for dam- ages. In support of this position, the principle announced in that respect in Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, and Newport v. Temescal Water Co., 149 Cal. 531, 87 Pac. 371, 6 L. R. A., N. S., 1098, is invoked. The principle contended for and sustained by the cases cited and others is unquestionably correct." But holds the rule inapplicable upon the facts presented in that case, viz., the riparian proprietor for a long time did not know the proposed con- struction, or the likelihood of damage from the proposed use, and brought suit as soon as he knew such intention and likelihood of damage and similar facts. This case is Miller v. Madera 724 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 651 In New York v. Pine, 25 however, it was applied against a riparian owner, and there are several recent Nebraska cases in which it was also so applied. 1 This rule is based primarily upon the balance of convenience in favor of the public represented by a public service agency having the power of eminent domain (avoiding multiplicity of suits by reaching the same result in the injunction suit as in a condemnation suit), 2 and secondarily upon laches in seeking the equitable remedy after great expense has been incurred. Conse- quently where no public necessity had yet arisen, nor great ex- pense incurred, the injunction being promptly sought, the mere fact that defendant has the power of eminent domain does not make the rule applicable. 3 Likewise, since the rule does not bar plaintiff's right, but only the equitable remedy, it is of no force in a claim for damages (which distinguishes the rule from "estoppel," which would bar the right entirely); 4 and if the injunction is refused, it should be without prejudice to an action for damages 5 (and probably such refusal of injunction merely Co., 155 Cal. 59, 99 Pac. 502, 22 L. R. A., N. S., 391. See, also, Verdugo Co. v. Verdugo, 152 Cal. 655, 93 Pac. 1021; Miller v. Bay City W. Co., 157 Cal. 256, 107 Pac. 115; Logan v. Guichard (Cal. 1911), 114 Pac. 989; Stevinson v. San Joaquin etc. Co. (Cal.), affirming injunction March 20, 1911, but granting rehearing April 19, 1911. 25 Supra. l Crawford Co. v. Hathaway, 60 Neb. 754, 84 N. W. 271, 61 Neb. 317, 85 N. W. 303, 67 Neb. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A., N. S., 889; McCook Co. v. Crewes, 70 Neb. 115, 102 N. W. 249; Cline v. Stock, 71 Neb. 70, 98 N. W. 454, 102 N. W. 265. These Nebraska cases, however, carried the rule too far, we believe. The rule is one of equitable defense to an injunction, whereas these Nebraska cases turned it around and allowed the wrongdoer to become the plaintiff and enjoin acts of the riparian owner, and quiet title against the riparian owner with- out having condemned his riparian right. There is a difference between denying equitable relief on the one hand, and granting affirmative equita- ble relief upon the other, where a con- stitution prescribes how property is to be taken for public use. There are other objections to these Nebraska cases above noted. Supra, sec. 617, et seq. 2 The supreme court of the United States in New York v. Pine, supra, expressly says that if public necessity has arisen, the rule is applicable even if defendant does not have the power of eminent domain, adopting the broad ground of balance of con- venience considered in the previous section; but it is usually in public service cases that the rule is invoked. 3 Cases cited in note 24, just above. In a recent New Jersey case this rule was recognized and discussed, and it was said: "But the circumstances must be exceptional," and it is not intended as a "general exception to the ordinary right of injunction in all cases of riparian rights." And re- fused to apply it in the case at bar, because the defendant did not in fact have power of eminent domain. City of Paterson v. East Jersey W. Co., 74 N. J. Eq. 49, 70 Atl. 472. 4 See supra, sees. 593, 594. 5 McCarthy v. Bunker Hill Co., 164 Fed. 927, 92 C. C. A. 259. C52 Ch. 27. PROCEDURE. <.3d ed.) 725 for want of equity would not bar a subsequent suit for damages even if not expressed to be without prejudice) ; or defendant may, at his election, have the damages assessed in the injunction suit. 6 And where the State constitution guarantees a jury trial in taking property for public use, 7 the defendant has a right to a jury to assess damages, whatever the forum may be in which they are determined. 8 And furthermore, all these cases recog- nize that if defendant refuses to pay the damages after they are assessed, the injunction will then lie under the constitutional provision that property cannot be taken or damaged for public use without compensation. 9 Although the rule seems in some way a little hard to reconcile with the constitutional provisions guaranteeing a certain pro- cedure before taking property for public use (in that these cases arise after the property is already taken), yet the decisions have now well established the rule, and it supports our conclusion in the previous section that balance of convenience favoring the pub- lic may (a matter discretionary with the chancellor) properly be a ground for refusing equitable as distinguished from legal relief (3d ed.) 652. Preliminary Injunctions. As to preliminary injunc- tions, it has been said concerning percolating water: 10 ''In cases involving any class of rights in such waters, preliminary injunc- tions must be granted, if at all, only upon the clearest showing that there is imminent danger of irreparable and substantial injury, and that the diversion complained of is the real cause." And in a case involving surface streams: "Bights to the use of water for the purposes of irrigation are of that supreme import- ance to all entitled to take water from a common source of sup- ply that a court to which an application is made for an inter- locutory writ affecting such rights should exercise great care in granting it ex 6 New York v. Pine, supra. that no preliminary injunction should 7 See Cal. Const., art. 1, sec. 14. b e granted without notice, and that XT IT i T>- temporary restraining orders must be New York v. Pine, supra. returnable on an order to show cause E. g., Cal. Const., art. 1, sec. 14. within ten days, etc. Cal. Code Civ. 10 Katz v. Walkinshaw, 141 Cal. Proc., sec. 527, as amended by Stats. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 1911, c. 42. 74 Pac. 766, 64 L. R. A. 236. In 1911 U McLean v. Farmers' etc. Co. the legislature enacted in California (1909), 44 Colo. 184, 98 Pac. 16. 726 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 653 At the same time, it rests much in the discretion of the trial court, and, if granted, will not be overthrown on appeal merely because of conflict of evidence; for "The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, con- cludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the rights claimed by him. When the cause is finally tried, it may be found that the facts require a decision against the party prevailing on the preliminary application," 12 All questions decided on a motion for a preliminary injunction are open for review on the final hearing, but the prior decision should be adhered to unless additional facts appear which require its modification or reversal, or it clearly appears that an error was committed. 13 (3d ed.) 653. Injunction (Conclusion). As a short statement of the equitable jurisdiction to enjoin, we quote the following from an opinion by Judge Field in the supreme court of the United States: "But whether, upon a petition or bill asserting that his rights have been invaded, a court of equity will interfere 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 remedy; whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordi- narily govern a court of equity in the exercise of its preventive process of injunction." 14 D. OTHER EQUITABLE REMEDIES. (3d ed.) 654. Bills to Quiet Title, Settling Rights, and Allied Bills. Many suits have been allowed to quiet title to water-rights, as to 12 Miller v. Madera Co. (1909), 155 ing water, before a final determination Cal. 59, 99 Pac. 502. could be had. 13 Rodgers v. Pitt (C. C. Nev.), 129 U Atchison v. Peterson, 87 U. S. Fed. 932. An instance where prelim- 507, 22 L. Ed. 414, 1 Morr. Min. Rep. inary injunction lies is Hagerman Co. 583. A somewhat extensive statutory v. McMurray (N. M.), 113 Pac. 823, regulation of injunctions appears in where the act restrained would have Wyo. Stats. 1907, p. 138, sec. 21, ruined plaintiff's business of distribut- et alia. 654 Ch. 27. PROCEDURE. (3d ed.) 727 other property. 15 In Katz v. Walkinshaw 16 it was said that a suit will lie by a landowner to have his right to percolating water declared against the appropriators, though he has sunk no well, or otherwise made use of it ; and that was made matter for further consideration when the case later actually arose, and the decision made accordingly and the rule very clearly applied. 17 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. 18 (In Arizona, at the instance of the United States Reclamation Service a friendly suit to settle rights in the Salt River Valley involved four thousand eight hundred water users as defendants.) 19 The court must then make a specific finding of the amount to which each is entitled, 20 definite in time and amount. 21 Defendant may file a cross-bill. 22 "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 certain as the language can make it. " ^ This apportionment may be in time as well as amount, giving each the use of the whole for so many days or hours where there are appropriations originally based on time; that is, "periodical appropriations." 24 In making the appor- tionment, the court must confine itself to a declaration of pre- existing rights, not the creation of new ones; and if a stream becomes, from natural causes, insufficient for all claimants, prior appropriators must be given their full amount at all times in their is E. g., Peregoy v. Sellick, 79 Gal. Co. v. Big Indian etc. Co., 146 Fed. 568, 21 Pac. 966 ; Senior v. Anderson, 166. 130 Cal. 29, 62 Pac. 563; Kimball v. 23 Authors v. Bryant, 22 Nev. 242, Northern etc. Co., 42 Colo. 412, 94 38 Pac. 439. Pac. 333. 24 Santa Paula Water Co. v. Peralta, is 141 Cal. 116, 99 Am. St. Rep. 113 Cal. 38, 45 Pac. 168; Rodgers v. 35, 70 Pac. 663, 74 Pac. 766, 64 L. Pitt, 129 Fed. 932; Union etc. Co. v. R. A. 236. Dangberg, 81 Fed. 73; Craig v. Craf- 17 Infra, sees. 1053, 1156. ton etc. Co., 141 Cal. 178, 74 Pac. 762. is Supra, sec. 625 et seq. In general, see, also, Frey v. Low- is Hurley v. Abbott. den, 70 Cal. 550, 11 Pac. 838; Stein- 20 Lakeside etc. Co. v. Crane, 80 berg v. Meyer, 130 Cal. 156, 62 Pae. Cal. 181, 22 Pac. 76. 483; Bledsoe v. Decrow, 132 Cal. 312, 21 Duckworth v. Watsonville etc. 64 Pac. 397 ; Rose v. Mesmer, 142 Co., 150 Cal. 520, 89 Pac. 338. See Cal. 322, 75 Pac. 905; Suisun v. De Same v. Same, 158 Cal. 206, 110 Pac. Frietas, 142 Cal. 350, 75 Pac. 1092; 927. Miller v. Thompson, 139 Cal. 643, 73 22 See Rickey etc. Co. v. Wood, 152 Pac. 583. See supra, sec. 305, regard- Fed. 22, 81 C. C. A. 218; Ames etc. ing periodical appropriations. 728 (Sded.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 654 proper order in preference to later claimants. 25 In Union Min. Co. v. Dangberg l Judge Hawley, nevertheless, held that the deficiency could be apportioned among appropriators by periods of time as though their rights were correlative as at common law. This is a modification of the doctrine of priority, whereby the prior appropriator had a paramount exclusive right at all times. It was followed in Anderson v. Bassman, 2 and represents a modifi- cation of the law of appropriation upon lines already considered. 3 An action to quiet title to a water-right, being real estate, can- not be brought by an administrator. 4 The Utah court will not quiet title to Idaho claims on a stream, though it flows into Utah. 5 A court of equity has jurisdiction of an action to quiet title to an irrigation ditch over the land of another and for an injunc- tion restraining the latter from interfering with the ditch and the right of way therefor, and the court should administer com- plete relief, to the end that the adverse claim of defendant, if found to be invalid, may be annulled, and that plaintiff may be relieved from the annoyance of the claim and of the assertion thereof in the future by defendant. 6 A mutual company formed to distribute water exclusively to its stockholders may maintain an action to quiet title against an upper diverter. 7 A decree may be rendered refusing injunction, but declaring a right in plaintiff. This cannot be in rem, except by statute, but will be phrased in personam, enjoining defendant from claiming any right hostile to that declared in plaintiff; in effect, a decree quieting title. 8 In settling the rights of carriers the court may examine the requirements of their consumers and apportion the supply be- tween the carriers upon the basis of the consumers' requirements. 9 25 See Riverside etc. Co. v. Sargent, 6 Cottonwood D. Co. v. Thorn 112 Cal. 230, 44 Pac. 560. See supra, (1909), 39 Mont. 115, 101 Pac. 825, sec. 302 et seq. ; infra, sees. 751, 1343. affirmed in 104 Pac. 281. 1 81 Fed. 73. 7 Arroyo D. Co. v. Baldwin (1909), 2 140 Fed. 14. 155 Cal. 280, 100 Pac. 874. 3 Supra, sec. 310 et seq. 8 Burr v. Maclay R. Co., 154 Cal. * Travelers' Ins. Co. v. Childs, 25 428, 98 Pac. 260. See infra, sees. Colo. 360, 54 Pac. 1020. 802, 831, 1053, 1138, 1156, declara- 5 Conant v. Deep Creek Co., 23 tory decree. Utah, 627, 90 Am. St. Rep. 721, 66 9 Montezuma Canal Co. v. Smith- Pac. 188; Willey v. Decker, 11 Wyo. ville Canal Co. (Ariz.), 89 Pac. 512; 496, 100 Am. St. Rep. 939, 73 Pac. affirmed in 218 U. S. 371, 31 Sup. Ct. 210. See ante, sec. 340 et seq., in- Rep. 67, 54 L. Ed. 1074. terstate streams. 655 Ch.27. PROCEDURE. (3ded.) 729 Actual present damage is not necessary in actions to quiet title, settle rights, or bills quia timet generally. As was said in Ore- gon: "It may be regarded as well settled in this State that it is only necessary to maintenance of suits of this character, either that it appear the defendants claim adversely to the moving party, or, if not asserting a hostile claim, that those made defendants are necessary to a complete determination of the controversy." 10 An irrigation district cannot sue to determine the rights of landowners in the distribution of water. 11 Procedure for settling rights forms an important part of the recent legislation, as hereafter set forth. 12 "It is manifest from a careful examination of our statutes and from the repeated decisions of our courts that our proceeding, if not technically one to quiet title, is quite analogous thereto." 13 Such a special pro- ceeding is exclusive of technical actions to quiet title. 14 But the same court recently also held: 15 "By the constitution, the dis- trict courts of this State are courts of general jurisdiction, both- in law and in equity. By virtue of the authority thus conferred, such courts, independent of statutes, have jurisdiction in matters pertaining to the adjustment of water-rights for the purposes of irrigation." 16 Proceedings for settling rights of tenants in common inter se have already been discussed. 17 (3d ed.) 655. Specific Performance and Allied Matters. A parol sale of a water-right by appropriation receives special treatment, as elsewhere discussed. Nevertheless equity will give specific per- formance of parol agreements where part performance has taken the case out of the statute of frauds; and will give irrevocable effect to parol licenses that were intended permanent and have been executed. This matter of parol sales and licenses is consid- ered in another place. 18 10 Whited v. Cavin (Or.), 105 Pac. 15 Farmers' etc. Co. v. Rio Grande 396. Supra, sec. 642. etc. Co., 37 Colo. 512, 86 Pac. 1042. u Little Walla Walla Irr. Dist. v. 16 Citing Broadmoor D. Co. v. Preston, 46 Or. 5, 78 Pac. 982. Brookside W. & I. Co. 24 Colo 541, - 7 f T> 4. Vr 52 Pac - 792 - See Kimball v. North- - Infra, Part VI. ern Irf ^ 42 Colo 412> Q4 Pac 333> is Crippen v. X. Y. Z. Ditch Co., a i so holding that action to quiet title 32 Colo. 447, 76 Pac. 797. lies. 14 Fluke v. Ford, 35 Colo. 112, 84 17 Supra, sees. 320, 321. Pac. 469. is Supra, sec. 555 et seq. 730 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 656 In enforcing agreements in equity upon the principles of specific performance, another question may arise when the agreement is one with a water-supply company. So far as such agreements are primarily for service, it is questionable whether specific per- formance can be ordered in view of the asserted rule that equity cannot order specific performance of contracts for continual service. But the supply contract is sometimes regarded as con- veying an incorporeal hereditament, a water-right, rather than a service right, 19 and the tendency is to decree specific perform- ance. 20 . E. MISCELLANEOUS REMEDIES. (3d ed.) 656. 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. 21 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, consequent to the loss of the use of the water. 22 Ejectment will not lie for a watercourse, for "non moratur, but is ever flowing." 23 (3d ed.) 657. Abatement of Nuisance by Act of Party Use of Force. The remedy nearest at hand is, usually, a show of physical force on the part of the owner; and this is quite proper if not overdone. Reasonable physical force may always be used to put trespassers off one 's property. In one case 24 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 19 Infra, sec. 1315 et seq.; espe- 21 Parke v. Kilham, 8 Cal. 77, 68 cially sees. 1324, 1338. Am. Dec. 310, 4 Morr. Min. Rep. 522 ; 20 Perrine v. San Jacinto etc. Co., Tuolumne etc. Co. v. Chapman, 8 Cal. 4 Cal. App. 376, 88 Pac. 293 (die- 392, 11 Morr. Min. Rep. 34; McCarthy turn} ; Hunt v. Jones, 149 Cal. 297, 86 v. Gaston etc. Co., 144 Cal. 542, 78 Pac. 688 ; Clyne v. Benicia Water Co., Pae. 7. 100 Cah 310, 34 Pac 714 Cf Stan- ffl islaus W. Co. v. Bachman (1907), 152 ,, Cal. 716, 93 Pac. 858, 15 L. R. A., N. S., 359; Pomeroy's Equitable Rem- ^ Challenor v. Thomas, Yelv. 143; edies, sec. 761. Compare Jersey City Shury v. Piggot, Poph. 169. v. Flynn, 74 N. J. Eq. 104, 70 Atl. 24 Mechanics' Foundry v. Ryall, 75 497; Leavitt v. Lassen Irr. Co., 157 Oal. 601, 17 Pac. 703. Cal. 82, 106 Pac. 404. 658 Ch. 27. PROCEDURE. (3ded.) 731 interfere with water-rights and were driven off; whereupon they brought suit. The court says: "One of the grievances of which the plaintiffs complain is that they were ejected from the posses- sion 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 plaintiffs have no right to complain of the means adopted to defeat this object. As against the defendants the diversion would have been illegal, and we regard their action in the premises as a proper and legitimate mode of averting the injurious consequences." 25 One may go upon another's land to remove obstructions placed there without being held liable in trespass, 1 or to clean out or repair the ditch. 2 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 their location. 3 The land- owner may take away and remove material brought on his land by a ditch owner to erect a saloon beside the ditch. 4 In a recent case 5 it is said : ' ' It is clear from these authorities that one who is in possession of real property without right can- not maintain an action of trespass on his person assault and battery against the owner of the property, having a right to its possession, or against those, acting at his instance or in his behalf, who make a forcible entry thereon to dispossess him, where no more force than is necessary is used to make the entry effective." Adding that if the trespasser is armed, it may (a question of fact) be reasonable for the owner to enter armed to dispossess him. (3d ed.) 658. Crimes. Even aside from statute, it is larceny to take water out of a receptacle in which it is confined and reduced to possession, as water in artificial waterworks, so far as it is private property, is personal property, and the subject of larceny at common law. 6 "One may put the case, for example, where I 25 Butte etc. Co. v. Morgan, 19 Cal. * Whitmore v. Pleasant Valley etc. 609, at 616, 4 Morr. Min. Rep. 583. Co., 27 Utah, 284, 75 Pac. 748. See, also, McCarty v. Fremont, 23 Cal. 5 Walker v. Chanslor (1908), 153 196. Cal. 118, 126 Am. St. Rep. 61, 94 Pae. 1 Ennor v. Raine, 27 Nev. 178, 74 606, 17 L. R. A., N. S., 455. Pac. 1. 6 Supra, sees. 35, 36; Ferens v. 2 Carson v. Genter, 33 Or. 513, 52 O'Brien, 11 Q. B. D. 21. See Dolan Pac. 506, 43 L. R. A. 130. v. State (Tex. Civ. App.), 129 S. W. 3 Lobdell v. Simpson, 2 Nev. 274, 840. 90 Am. Dec. 537. 732 (3d ed.) Pt. III. THE LAW OF PRIOR APPROPRIATION. 658 go to dip water from a river. I acquire the ownership of tho water which I have taken, and with which I have filled my pitcher, by title of occupancy, for this water, being a thing which belonged to no person, to which no person had any exclusive right whatever, I have been able, on taking it into my possession, to acquire the ownership of it jure occupationis. That is why, in case on returning from the river, I have, for some purpose, left my pitcher standing on the road, with the intention of return- ing later to fetch it where I left it, i*, in the meantime, a passer- by, having found my pitcher, proceeds (to save himself the trouble of going to the river) to pour into his pitcher the water that was in mine, he has committed against me an actual theft of that water, which water was a thing of which I was actually the proprietor, and of which I retained the possession through the intention I had of returning for it at the place where I left it. Note that the flow of the body of the stream must not be confounded with the running water itself, which is designated aqua profluens." 7 In California this principle is enacted in the Penal Code, 8 providing that stealing water from a canal, ditch, flume, pipe, reservoir or other conduit is a misdemeanor. Disturbing any gate or other apparatus for the . control or measurement of water, without authority of the owner or man- ager and with intent to defraud is usually, by statute, a mis- demeanor. 9 In practice, convictions under these sections are difficult to obtain. The Modesto irrigation district in California, during the year 1909, brought several prosecutions against land- owners who were accused by the officials of taking water out of their turn when ordered not to do so by the ditch-tender of the district. It took long to get a jury, as the ranchers seemed to sympathize with the defendants; charges of unfairness were made against the officials; and the verdicts finally resulted in acquittals. Some other crimes under the California statutes peculiar to this subject are poisoning water of any spring, well or reser- voir. 10 An- example, of this is herding a band of sheep daily to a stream which they defile. 11 Maintaining appliances injurious 7 Pothier, Droit de Propriete, opp. 10 A state's prison offense. Cal. torn. 8, p. 149. Pen. Code, sec. 347; Stats. 1907, c. 8 Sees. 499 and 502. See, also, 492; Stats. 1911, c. 339. Neb. Comp. Stats. 1903, sec. 6458. n People v. Borda, 105 Cal. 636, Cal. Pen. Code, sees. 592, 607. 38 Pac. 1110. 658 Ch. 27. PROCEDURE. (3ded.) 733 to fish is a misdemeanor. 12 Wasting artesian well water is a crime. 13 These crimes do not exclude the equitable jurisdiction to restrain the same acts as nuisances in a civil suit. 14 Under the recent water codes of the arid States there are many criminal provisions in the nature of police regulations; such as diverting water without a permit from the State Engi- neer, waste of water, interference with headgates or measuring devices, or obstruction of officials in their work. 15 A common provision is that "the possession or use of water when the same shall have been lawfully denied by the water commissioner or other competent authority shall be prima facie evidence of the guilt of the person using it." 16 Pollution of water to the danger of health is also usually a crime. 17 In Colorado, for a public- service water company to exact a bonus is a crime. 18 12 Pen. Code, 629. 13 Cal. Stats. 1907, p. 122, sec. 5. 14 People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Rep. 183, 48 Pac. 374, 39 L. R. A. 581; Spring Valley etc. Works v. Fifield, 136 Cal. 14, 68 Pac. 108; Arizona Copper Co. v. Gillespie (Ariz.), 100 Pac. 465. 15 For example: Colorado Rev. Stats. 1908, sees. 1817, 3178, 3179, 3239, 3240, 3495 et seq., 3497 et seq., and the following sections of the Revised Statutes of 1908: Water commissioner (section 1723) ; Failure to cover ditch (section 3243) ; Polluting stream (section 1817) ; Allowing water to waste (sec- tion 3240) ; Trees which conserve the snow (section 2626). Idaho. Stats. 1903, p. 223, sec. 26; Stats. 1907, p. 237. Nebraska. Comp. Laws 1903, sees. 6407, 6443, 6445, 6458. Nevada. Comp. Laws 1900, sees. 430-434, 4879, 4881; Stats. 1903, p. 214; Stats. 1903, p. 18, sec. 20; Stats. 1907, p. 30, sees. 16, 26, 27, 30; Stats. 1907, p. 104; Stats. 1909, p. 48. Failure of claimant to file state- ment for adjudication of rights is de- clared a crime. Stats. 1907, p. 30, sec. 16. New Mexico. Stats. 1907, p. 71, sees. 46-48, 50, 67. North Dakota. Stats. 1905, p. 274, sees. 28, 43, 52-54, 57. Oregon. Laws 1909, c. 216, sees. 43-45, 66. South Dakota. Stats. 1905, p. 201, sees. 28, 49, 54; Stats. 1907, c. 180. Utah. Stats. 1907, p. 57, sees. 55, 64. Washington. Pierce's Code, sees. 1908, 5834, 5837, 5872, 5901; Stats. 1907, p. 285. It is a crime in Wash- ington to cause any aperture in a structure erected to conduct waters for agricultural purposes. State v. Tiffany (Wash.), 87 Pac. 932. Wyoming. Rv. Stats., sees. 917, 918, 924 et seq., 971; Stats. 1901, c. 86, pp. 95, 99; Stats. 1907, p. 138, sees. 13-15; Stats. 1907, c. 86. This list is not complete. See stat- utes infra, Part VIII. 16 E. g., Colorado. Rev. Stats. 1908, sec. 3497; Laws 1901, p. 196. Oregon. Laws 1909, c. 216, sec. 66. Wyoming. Laws 1901, c. 66. Cali- fornia. Laws 1911, c. 406, sec. 6. In Lindsley v. Natural Carbonic etc. Co. (1911), 31 U. S. Sup. Ct. Rep. 337, such clause is held constitutional. 17 E. g., Colo. Rev. Stats. 1908, sec. 1817. 18 Colo. Stats, infra, see. 1433. See Northern Irr. Co. v. Richards, 22 Colo. 456, 45 Pac. 423, and cases cited infra, sec. 1280. 659-665. (Blank numbers.) CHAPTER 28. INTRODUCTORY. 666. Appropriation and the common law. 667. Ancient possession The maxim "Aqua currit." 668. Prior possession even if not ancient. 669. Priority of appropriation enforced. 670. Priority finally displaced by equality. 671. Same. 672. Same. 673. Kiparian rights under the California doctrine. 674. Conclusion. 8 675-683. (Blank numbers.) (3d ed.) 666. Appropriation and the Common Law. Up to recent times, the English decisions were devoted consistently to pro- tection of long-standing enjoyment of the water of a stream. The earliest cases usually presented a condition where one had from time immemorial used the water for a mill or for watering cattle, or for irrigating a meadow in time of drought, 1 and another wholly stopped the stream or diverted it elsewhere and left plaintiff's mill or land dry and helpless, whereupon the courts acted to protect the former's ancient enjoyment. In the Year Books several such cases appear, 2 giving only the results of the assizes, however (that the diversion from plaintiff was allowed or denied, being usually denied), but without any discussion. 1 E. g., Year Book XII, Edward III irrigate [adaquare] the aforesaid (A. D. 1331, Horwood's edition, p. meadow in time of drought, and do 464), where James diverted the course other needful things therewith," and of a certain stream of water from that after the diversion he specifies T., the latter complains that water heavy damage, and it was ordered was wont to flow from a spring to his "that the said nuisance be abated and meadow "with which water he was that the said water be turned into its wont to water his cattle, namely, former course at the expense of the horses, sheep ?nd cows, and also to said .T." fish therein and brew therewith, and 2 See Woolrych on Waters, p. 177. (735) 736 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 667 (3d ed.) 667. Ancient Possession The Maxim "Aqua Currit." This principle of protecting ancient enjoyment is expressly taken as the ground of decision in the earliest cases containing actual dis- cussion. These cases representing the second stage of the common law, discussed the matter from the view of proper pleading by the plaintiff in such a case. The plaintiff, relying upon an immemorial custom, usually declared, in the words of pleading a custom, that the water "currere solebat" to his mill or land, and that he had made use of it there from time out of mind. Such pleading was upheld because it properly alleged an ancient custom. The most important of these is Shury v. Piggott, decided in 1625. The case seems to have excited a good deal of attention at the time, being given in six different reports, 3 and has been said to have discussed collaterally many things which were not necessary to the decision. 4 Lord Blackburn declares the stream in question appears to have been in reality an artificial one; though the maxim, "Aqua currit et debet currere ut currere solebat," as a rule of natural streams, probably rests upon this case. The fact that it was an artificial stream shows that this maxim really arose as a statement that the right to running water rests on prescription ; and there is enough in the reports of other cases to show that such is the real origin of the maxim. The point is worth following up a little. The case discussed the matter from the view of formal pleading, as was usually the way cases were treated at the time. The plaintiff declared, in the words of pleading on ancient "custom," that the water "currere solebat .et consuevit'' to his land, and one of the judges rested his decision on the ground that, as he said, " 'consue- vit' is a good word for a custom." 5 That the words of the maxim arose from this idea of resting the right to watercourses upon pre- scription or custom from time out of mind, appears in numerous other of the older authorities succeeding this case. In one it was held, "By reason of the words 'consuevit et debuit,' it must be in- tended that a prescription was given in evidence. " In another 3 Palm. 444; Poph. 169, 81 Eng. v. Piggott, said. "Ici sont sufficient Reprint, 1163 ; 3 Buls. 339 ; Noy, 84 ; parols d'expresser un prescription, de Latch, 153 ; W. Jones, 145, 81 Eng. temps d'ont, etc., consuevit currere," Reprint, 280. adding that, "serra entend ancient." 4 Lord Blackburn in Dalton v. An- 6 Rosewell v. Prior, 1 Ld. Raym. gns, 6 App. Cas. 825. 392, 91 Eng. Reprint, 1160, a case of 5 As reported in Palm. 444, 81 Eng. lights. Reprint, 1163, Doderidge, J., in Shury 667 Ch.28. INTRODUCTORY. (3ded.) 737 it was said. "Currere consuevit had been held well enough in case of a watercourse, because that must be time immemorial." 7 In another, "If I have a right from usage as currere solebat, I have the right in such manner as the usage has been. ' ' 8 There is another instructive case reported in several reports. 9 In this case plaintiff declared, among other words, that the water "currere consuevit et debuit to a mill of the plaintiff," 10 which was held a sufficient pleading both below and on appeal. The watercourse was an artifi- cial oner 11 In support of the pleading, plaintiff's counsel (Pollex- fen, at one time Chief Justice) argued, among other things, that "The words 'ab antiquo et solito cursu' amount to as much as if it had been said de jure currere debuisset et consuevit," and the report says : 12 " The judgment was affirmed, but Holt, Chief Justice, said, that if the cause had been tried before him, the plaintiff should have proved his mill to be an ancient mill, otherwise he should have been nonsuit," showing that the words "consuevit et debuit" were taken by Holt as- referring to prescription. In another report of the same appeal 13 plaintiff 's counsel speaks of certain cases as "those cases are wherein the plaintiff declared that the water currere consuevit et debuisset to the plaintiff's mill time out of mind ; which words are of the same significance as if he had showed it to be an ancient mill The word 'solet' implies antiquity. .... and it was the opinion of a learned judge 14 that the words 4 currere consuevit et solebat' did supply a prescription or custom." The report says: "The word 'solet' implies antiquity and will amount to a prescription," adding the expression of Holt, C. J., given above, to this effect, whereby he must have meant that, since the pleading was based on prescription, it could only be sup- ported on the trial by proof that the use was in fact ancient as the 7 Powell, J., in Tenant v. Goldwin, but the report of it on appeal appears 2 Ld. Raym. 1089, at 1094, 92 Eng. in four different reports, viz.: Skin. Reprint, 222. 175, 90 Eng. Reprint, 81; Garth. 85, 8 Brown v. Best, 1 Wils. 174, 95 90 Eng. Reprint, 653; 87 Eng. Re- Eng. Reprint, 557. print, 30, 3 Mod. 48, 90 Eng. Reprint, 9 Palmer v. Keblethwaite, 1 Shew. 901, and Holt, 5. See, also, 3 Lev. 64, 89 Eng. Reprint, 451; Skin. 65, 133, 83 Eng. Reprint, 615. 90 Eng Reprint, 31. In Mason v. . 10 1 Show. 64, 89 Eng. Reprint, 451. Hill, 5 Barn. & Adol. 1, 110 Eng. " Garth. 85, 90 Eng. Reprint, 31. Reprint, 692, Lord Denman speaks of 12 Garth. 85, 90 Eng. Reprint, 31. these two reports of the case, and 13 3 Mod. 48, 90 Eng. Reprint, 301. says : "The final result of the case * 4 Citing Doderidge, J., in Shury v. does not appear in the books, and the Piggott, Poph. 171, 81 Eng. Reprint, roll has been searched for it in vain," 1163, above quoted. Water Rights 47 738 (3d ed.) Pt. IV. THE COMMON LAW OF RIPAEIAN RIGHTS. 668 words "currere consuevit," "debuit" or "solebat" must be taken as having alleged. 15 These cases show that the common law of watercourses was at one time based on an analogy to prescription or ancient custom, and that the maxim, "Aqua currit et debet currere ut currere solebat" is merely a survival of this stage of the law ; a stage now, of course, long discarded, though the maxim has survived. 18 (3d ed.) 668. Prior Possession Even if not Ancient. As part of this second stage of the English law a modification of the foregoing ap- peared in some of the cases just considered. From regarding the right as resting upon ancient enjoyment, it was questioned in some of these cases whether the enjoyment had to be ancient, and whether actual possession, however short, was not alone enough against one 15 A declaration that plaintiff had a mill "ab antiquo" and defendant did certain acts "per quod cursus aquae praedict coarctutus est," and the dec- laration was held good. Russell v. Handford, 1 Leon. 273, 74 Eng. Re- print, 248 (about A. D. 1650). "Ad malendirtum illud currere consuevit." Diverted, prevented milling. See Vin- er's Abridgment, "Watercourses," B, see. 2. In another it was held a good pleading to allege "quod quidam fluxus aquae currere consuevit et de- buit \tsque ad quendam fontem." Prickman v. Tripp, Skin. 389, 90 Eng. Reprint, 173. A man's right to a watercourse for a mill regarded as resting on prescription. Luttrel's Case, 4 Coke, 86a, 76 Eng. Reprint, 1065; Russell v. Handford, 1 Leon. 273, 74 Eng. Reprint, 248; The King v. Directors of Bristol Co., 12 East, 429, 104 Eng. Reprint, 167. Manle, J., in Smith v. Kenrick (1849), 7 Com. B. 546; Acton v. Blundell, 12 Mees. & W. 324. 16 "We may consider, therefore, that this proposition is indisputable; that the right of the proprietor to the en- joyment of a watercourse on the sur- face is a natural right, and not ac- quired by occupation of the stream itself, or presumed grant." Lord Wensleydale, in Chasemore v. Rich- ards, 7 H. L. Cas. 349, 11 Eng. Re- print, 140. See, also, Dickinson v. Canal Co., 7 Ex. 299; Magistrates V. Elphinstone, 3 Kames Dec. (Scotch) 332, saying, "This right he has from the law of nature, without the aid of prescription." See, also, Countess of Rutland v. Bowler, Palm. 290, 81 Eng. Reprint, 1087; Prickman v. Tripp, Skin. 389; Comb. 231, 90 Eng. Re- print, 173, 447; Acton v. Blundell, 12 Mees. & W. 324; Cox Y. Matthews, 1 Vent. 237, 86 Eng. Reprint, 159; The King v. Directors of Bristol etc. Co., 12 East, 429, 104 Eng. Reprint, 167. The idea nevertheless found expres- sion to a comparatively late date. In The King v. Directors of Bristol Dock Co., 12 East, 429, 104 Eng. Reprint, 167, Lord Ellenborough said the in- stances of actions maintained against those who disturbed plaintiff in enjoy- ment of the water of a river "were cases where the owners of the prop- erty, by long enjoyment, had acquired special rights to the use of the water in its natural state." It was also sug- gested by Tyndall, C. J., in Acton v. Blundell (1843), 12 Mees. & W. 324, and in another case it was said: "As to surface flows [watercourses], parties acquire rights to them because there is the acquiescence of everybody who has any interest in the matter." Maule, J., in Smith v. Kenrick (1849), 7 Com. B. 546. Both of these last are expressly disapproved in Chase- more v. Richards, supra. See, also, infra, sec. 1434. 669 Ch. 28. INTEODUCTORY. (3d ed.) 739 who had never before possessed it. The principle applied was that possession is sufficient title against a mere wrongdoer showing no better right (the better right being by prescription). In a case above referred to, 17 where the declaration was treated as stating a prescription, counsel (Pollexfen) argued also that "This action is of the same nature with an action of trespass, and therefore good upon the possession only," even if not ancient (but then proceeding to show that the words in the declaration also amounted to saying it was ancient), and one of the judges (Hoyle) said: "Where the declaration is upon the possession against a wrongdoer, there we need not say that it was time out of mind." Numerous cases were rested upon this idea. 18 The principle is an underlying one still true to-day; but the importance of these early cases is in that they allowed it to be the controlling principle of rights in watercourses, whereas the con- trolling principle at common law is now that a title to the flow and use of the stream is an incident to the land by which it flows, and the consideration of possession without title has been entirely subordi- nated. 19 (3d d.) 669. Priority of Appropriation Enforced. The third stage of the English decisions presents the first real attempt to consider the matter on principle about the beginning of the last century. The desire still was to protect the long-standing enjoyment; but now treating the matter aside from formal pleading, the judges went to the civil law for their principles, as later herein set forth. Still wishing to protect the old enjoyment, they understood these 17 Palmer v. Heblethwait, 1 Show. watercourse was upheld on this ground 64, 89 Eng. Reprint, 451. of possession against a wrongdoer, 18 It is in part taken as the ground without alleging title. Glyn v. Nich- of the judgment of Whitlock, J., in ols, Comberback, 43, 90 Eng. Reprint, Shury v. Piggott, supra. See, also, 333, 2 Show. 507, 89 Eng. Reprint, Aldred's Case, 9 Coke, 86, 77 Eng. 1069. In another, "Action for dis- Reprint, 816; Moore v. Browne (15 turbing a watercourse, with a currere Eliz.), 3 Dyer, 319, 73 Eng. Reprint, debuit only, and says not 'solebat.' 723. And it was actually decided in Quaere, if not good." Jackson v. Sal- some cases that the use need not be way, 1 Show. 350, 89 Eng. Reprint, ancient to entitle it to protection 142. In S. C., Skin. 316, 90 Eng. against one not himself claiming a Reprint, 619, held good, as his posses- prescription ; e. g., Sands v. Trefuses, sion was sufficient. That plaintiff's Cro. Car. 575, 79 Eng. Reprint, 1094, mill need not be an ancient one was holding that it need not be an ancient also held upon this ground in Cox v. mill. Possession is enough against a Matthews, 1 Vent. 237, 86 Eng. Re- tort-feasor. (15 Charles I.) In an- print, 159, 3 Keble, 133. other case trespass for diverting a 19 Supra, sees. 83, 246, 628. 740 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 670 civil-law principles as affirming the doctrine of prior appropriation, and protected the long-standing use against the innovation of a recent diversion, on the ground of priority of use. One of the chief cases to this effect is Liggins v. Inge, 20 referring to the civil law, and saying, "By the law of England, the person who first appro- priates any part of the water flowing through his own land to his own use has the right to the use of so much as he thus appropriates against any other." 21 And the same was laid down in early New Eng- land. 22 (3d ed.) 670. Priority Finally Displaced by Equality. The modern law, or fourth stage, rests upon a re-examination of the civil-law principles in Mason v. Hill, 23 and the more correct application of them made by Lord Denman in that case, a matter already else- where considered at much length. 24 It is our object here only to show that the modern common law repudiates both the former ideas that the right to a watercourse rests either on an analogy to custom or prescription, such as influenced the earliest cases, or on the theory of prior appropriation. A recent note-writer 25 gives the following regarding this change of view: "There was a strong tendency on the part of some of the judges in the earlier times to recognize a right to obtain title to water by prior appropriation or occupancy, and at one time, it seemed as though that doctrine would be established, but the later cases have all, with one possible exception, been the other way, so that now no such right is recognized. 1 But in some of 20 [1831] 7 Sing. 682. pee etc. Co. (Mass. 1860), 16 Gray, 21 See, also, II Blackstone's Com- 43; Elliott v. Fitchburg Ry. (Mass.), mentaries, 402. In Bealey v. Shaw 10 Cush. 191, 57 Am. Dec. 85; Black- (1805), 2 Smith, 321, 6 East, 208, 102 stone Mfg. Co. v. Town of Blackstone Eng. Reprint, 1266, Lawrence, J., (1908), 200 Mass. 82, 85 N. E. 880, said : "It all depends upon the priority 18 L. R. A., N. S., 755 ; Van Bergen of occupancy." Le Blanc, J., said v. Van Bergen (1818), 3 Johns. Ch. that the first to erect a mill might take 282. all. In Canham v. Fisk (1831), 2 23 5 Barn. & Adol. 1, 110 Eng. Re- Cromp. & J. 126 (also 2 Tyrw. 155), print, 692. Bayley, B., said: "There is a fourth 24 Supra, e. I. mode of acquiring such a right, viz., 25 30 L. R. A. 665, note. by appropriation. If a man finds l Saying that in the earlier cases water running through his land, he the following decisions and dicta ap- may appropriate it and thus acquire a pear : Liggins v. Inge, 7 Bing. 682 ; 5 title to the water." Moore & P. 712 ; Williams v. More- 22 Weston v. Allen, 8 Mass. 136, 8 land, 2 Barn. & C. 913, 107 Eng. Re- Morr. Min. Rep. 82 (1811). Priority print, 620; 4 Dowl. & R. 583; Can- of appropriation is still in force to a ham v. Fisk, 2 Cromp. & J. 126, 2 small extent under the "mill acts." Tyrw. 155; Saunders v. Newman, 1 See Gary v. Daniels, 8 Met. (Mass.) Barn. & Aid. 258, 106 Eng. Reprint, 466. 41 Am. Dec. 532 ; Fuller v. Chico- 95. 670 Ch. 28. INTRODUCTORY. (3d ed.) 741 those early cases rulings which are apparently in favor of the doc- trine of appropriation are in fact merely in favor of protecting what is known as riparian rights. 2 When the question came squarely be- fore the court for decision, however, the doctrine of prior appropria- tion was repudiated." 3 Goddard, in his Law of Easements, 4 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 compara- tively modern times, ' ' etc. He says, after referring to some of the earlier decisions, that the theory of appropriation was much modi- fied by various decisions "as the nature of riparian rights was brought more fully under consideration." 5 He concludes: "Ap- propriation of the water of flowing streams has thus gradually fallen from being considered the means of acquiring important rights to being deemed of no importance whatever." In Chasemore v. Richards, 6 Lord Wensleydale declares : ' ' We may consider, there- fore, that this proposition is indisputable, that the right of the proprietor to the enjoyment of a watercourse is a natural right, and is not acquired by occupation or presumed grant, ' ' 7 Lux v. Haggin, 8 says : " In examining the numerous cases which establish that the doctrine of 'appropriation' is not the doctrine of the com- mon law, we meet an embarrassment of abundance. ' ' Mason v. Hill, 9 which is considered to have placed the common law of riparian rights on its present foundation, was decided in 1833. An elaborate opinion was rendered by Lord Denman, with the intention "to discuss, and, so far as we are able, to settle the 2 Stating, Rutland v, Bowler, Palm. v. Hill, 3 Barn. & Adol. 304, 110 Eng. 290, 81 Eng. Reprint, 1087; Bealey v. Reprint, 114, and Cocker v. Cowper, Shaw, 6 East, 208, 102 Eng. Reprint, 5 Tyrw. 103. 1266, 2 Smith, 321; Holker v. For- 6 7 H. L. Cas. 384, 11 Eng. Re- ritt, L. R. 10 Ex. 59, 44 L. J. Ex. print, 140. 52; Frankum v. Falmouth, 6 Car. & 7 "The court of exchequer, indeed, P. 529. in the case of Dickinson v. Grand 3 Stating Mason v. Hill, 5 Barn. Junction Canal Co., 7 Ex. 282, ex- & Adol. 1, 110 Eng. Reprint, 692; pressly repudiates the notion that such Wood v. Waud, 3 Ex. 748, 18 L. J. a right as that in question can be Ex. 305 ; Embrey v. Owen, 6 Ex. 355, founded on a presumed grant, but de- 20 L. J. Ex. 212; Sampson v. Hod- clares that with respect to running dinott, 1 Com. B., N. S., 611; Wright water it is jure naturae." Chasemore v. Howard, 1 Sim. & St. 190, 57 Eng. v. Richards, 7 H. L. Cas. 349, 11 Eng. Reprint, 76. Reprint, 140, Wightman, J. 4 Page 251. Also, 7th ed. (1910), 8 69 Cal. 255, 10 Pac. 674. p. 348. 9 5 Barn. & Adol. J, 110 Eng. Ke- 5 Citing in this connection, Mason print, 692. 742 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 670 principle upon which rights of this nature depend," and this case has been generally accepted as accomplishing this result, settling the common law of watercourses in its present form. 10 The older authorities were held, in that case, to be devoted to an elucidation of the principle borrowed from the civil law that the water itself as a corpus or substance is not property until taken into possession, but do not define the rules governing who may have the right to take it into possession or to what extent a person having the right may exercise it ; and that they are misconceived if thought to recog- nize the right to take the water into possession by anyone but a land- owner on its banks, or by such landowner, to the extent of entirely depriving another landowner on its bank of the advantage of that stream. Lord Denman, in giving the decision, said: "But it is 10 Lord Blackburn in Orr Ewing v. Colquhoun, 2 App. Cas. 854, says the modern law of riparian rights "can hardly be considered as settled law in England before the case of Mason v. Hill, in 1833." In another case it is said : "Upon the second trial of Mason v. Hill a special verdict was found, on the argument on which Lord Den- man delivered an elaborate judgment which has always been considered as settling the law as to the nature of the right." McGlone v. Smith, 22 L. R. Ir. 568. Accord as to the effect of Mason v. Hill, see Cocker v. Cow- per, 5 Tyrw. 103; Embrey v. Owen, 6 Ex. 353, 20 L. J. Ex. 212; Stock- port W. W. Co. v. Potter, 3 H. & C. 323, 10 Jur., N. S., 1005; Chasemore v. Richards, 7 H. L. Cas. 349, 11 Eng. Reprint, 140; Wightman, J. ; Pugh v. Wheeler, 19 N. C. (2 Dev. & B.) 50 Ruffin, C. J. ; Gale on Easements, 8th (1908) ed., p. 258; Angell on Water- courses, 7th ed., sec. 133; Salmond on Torts, p. 254. It should be noted, however, that there were one or two earlier defini- tions of the right which resembled the present law. See Magistrates v. Elphinstone, quoted supra, sec. 17. In Countess of Rutland v. Bowler, Palm. 290, 81 Eng. Reprint, 1087, plaintiff alleged that a watercourse "soloit currere per modestum et in- cessantem cursum" to a parcel of plain- tiff's land where she had a mill. De- fendant claimed that the declaration was bad for not alleging that it was an "ancient" mill, so as to found a prescriptive right to the watercourse. But it was held that it was the same whether the mill was new or old; it was enough that the water "used sequer cest course Car ne poet user son terre, ou le water, qui passe par son terre, al damage d'auter," and judgment was entered for the plain- tiff. In 1805 Lord Ellenborough had said: "The general rule of law as applied to this subject is that, inde- pendent of any particular enjoyment used to be had by another, every man has a right to have the advantage of a flow of water in his own land without diminution or alteration," and refers later on to this as his "natural right." Beaky v. Shaw (1805), 6 East, 208, 102 Eng. Reprint, 1266. Likewise Justice Story had in 1827 rendered the judgment in Tyler v. Wilkinson (4 Mason, 397, Fed. Cas. No. 14,312, six years before Mason v. Hill), and Story's opinion has been more fre- quently quoted in American cases but was itself based on English cases; while the second of Story's famous decisions (Webb v. Portland Cement Co., 3 Sum. 189, Fed. Cas. No. 17,322), expressly relied upon Mason v. Hill. Regarding the history of Story's opinion, see infra, sec. 696. So, also, Kent's Commentaries had been issued before Mason v. Hill. Kent, inter alia, referred to the Code Napoleon, which had been proclaimed in 1804, and contained an enactment of the law of riparian rights for France. 671 Ch. 28. INTRODUCTORY. (3ded.) 743 a very different question whether he can take from the land below one of its natural advantages, which is capable of being applied to valuable purposes, and generally increases the fertility of the soil even when unapplied, and deprive him of it altogether by anticipat- ing him in its application to a useful purpose We think that this proposition has originated in a mistaken view of the principles laid down in the decided cases." The decision limited the right to use the water to one by whose land it flows, or, as he is now called, a riparian owner ; and by him, regardless of the time of use, not to be used to the exclusion of other riparian owners. This is the founda- tion of the present common law of riparian rights. (The term " riparian proprietor" does not appear in the older cases at all, nor even in Mason v. Hill.) The English decisions since Mason v. Hill have firmly established the principles laid down in that case. 11 (3d ed.) 671. Same. The result of Mason v. Hill was that the use of running water was confined to those by whose land the stream flows, as a common benefit, to be enjoyed by all of them equally, with priority to none. The chief proposition laid down was that "It appears to us that there is no authority in our law, nor as far as we know, in the Roman law (which, however, is no authority in ours), that the first occupant (though he may be the proprietor of the land above) has any right, by diverting the stream, to deprive the owner of the land below of the special benefit and advantage of the natural flow of water therein." 12 So, likewise, in the well- known decision of Justice Story in Tyler v. Wilkinson, some few years before, the law was laid down that between the landowners through whose land the stream flows there is a "perfect equality of right," and "there may be, and must be allowed to all, of that which is common, a reasonable use"; but an exclusive right is given to none, except by prescription or the grant or consent of all the riparian proprietors, for the water is common to them all. "Mere priority of occupation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mero ll See Wilts etc. Canal Co. v. Swin- v. Fishmongers' Co., L. B. 1 App. Gas. don W. W. etc. Co., L. R. 9 Ch. 451; 673; Sandwich v. Ry., 10 Ch. D. 707; Swindon Waterworks Co. v. Wilts etc. Kensit v. Great Eastern Ry. Co., 27 Co., I>. R. 7 H. L. 697; McCartney Ch. D. 122; White v. White, [1906] v. Londonderry Ry., [1904] App. Gas. App. Gas. 81. 301 ; Miner v. Gilmour, 12 Moore P. 12 Mason v. Hill, 5 Barn. & Adol. 1, C. 131, 14 Eng. Reprint, 861; Lyon 110 Eng. Reprint, 692. 744 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 672 occupancy, where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law awards to the riparian proprietors the right to the use in common, as one incident to the land ; and whoever seeks to found an exclusive use must es- tablish a rightful appropriation in some manner known and ad- mitted by the law" 13 (meaning by grant, condemnation or pre- scription). (3d ed.) 672. Same. The contention that the doctrine of exclusive rights by priority of appropriation is to-day recognized by the common law is disposed of by Judge Cooley 14 in the following words : " .... We may dismiss 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 defendant. The settled doctrine now is that priority of appropriation 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 circum- stances as would be requisite to establish rights by prescription. ' ' 15 And so also it is declared for private lands at the present day in those parts of the West where the common law is in force: "There is no such thing as prior riparian ownership, so far as distribution of water for irrigation purposes between riparian owners is con- cerned." 18 (3d ed.) 673. Riparian Rights Under the California Doctrine. Under the California doctrine the system of appropriation applies to diversions made while streams flowed over public lands, where there are no riparian proprietors ; 17 that of riparian rights applies to waters whose bordering lands became private before diversion ; 18 as already set forth in the second part of this book. 13 Tyler v. Wilkinson, 4 Mason, 397, speaking of rights between riparian Fed. Gas. No. 14,312. proprietors between themselves, as n n t. ,4 on such, under the common law. As to 14 Dumont v. Kellogg, 29 Mich. 420, ^ Qutgide tfae comm(m J&w wfaere i Am. Kep. 1Ue to percolating water and not to running streams. The application of the cujus est solum doctrine even to percolating water is now being cut down. 13 At all events, the application of the cujus est solum doc- 10 Phear's Rights of Waters, p. 22. 13 Katz v. Walkinshaw, 141 Cal. 11 Italics ours. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 12 Lord Wensleydale (Baron 74 Pac. 766, 64 L. R. A. 236. Infra, Parke), in Chasemore v. Richards, 7 sec. 1041 et seq. H. L. Cas. 349, 11 Eng. Reprint, 140. 768 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 698 trine to percolating water in Acton v. Blundell 14 is not only to-day recognized as a departure from the rule regarding watercourses, but that departure was avowedly and consciously made; and that it was a departure has never been denied. 15 "There is only one case in law in which water in its natural state is the subject of ownership, and that is the case of percolating water. A man is regarded as owning the percolating water while it is in his land. But other water in its natural state is subject only to the use of the man through whose land it flows. He has a right to its use, but is not regarded as having the title." 16 Moreover, the passage in Lord Coke mentions air as part of the land as much as water; yet no man to-day would deduce a right to the wind from ownership of the air as part of the land over which the air lies. 17 Also, with regard to the same passage, it is common knowledge to-day that a riparian proprietor does not sue to recover so much land covered with water that is running (in con- trast to standing water). Justice Story said the riparian right "is not a distinct right to the water as terra aqua cooperta." 13 That on high authority the view under consideration is erroneous, appears from the decision of the House of Lords in Lyon v. Fish- mongers' Company. 19 The case is a direct decision upon the ques- tion. Whether the riparian right of use is based on ownership of 14 12 Mees. & W. 324. ing out into space, in diverging lines, 15 See quotation infra, sec. 1039. infinitely; so that if he could show 16 Goodwin on Real Property, p. 2. *J at the ^ e , lines of 1 boundary take in , v> , Mars and her canals, he would have a 17 "So, though no one will pretend perfect case against the Martians for to fix a property in the wind, yet we rent of fields and toll of wate rways, may appoint a service or duty of not if he could get serviee and bri the intercepting the wind to the prejudice defendants into court." However, in of our mills." Puffendorf, lib. IV, c. v i ew of the holding of Lord Ellenbor- V, sec. II. OU gh i n Pickering v. Rudd, 4 Camp, The absurdity of pressing the cujus 219, 1 Stark, 56 (see, also, 44 Am. est solum doctrine ad extremes is Law Rev. 108), that trespass quaere shown in this regard; and it has been clausum will not lie for flying in the in this connection cleverly exploited in air over one's field in a balloon, it is fiction, as, for example: "Cujus est safe to say that there are some limits solum, ejus est usque ad caelum, is to the cujus est solum doctrine this the maxim on which we stand, the side of Mars. It is a curious thing meaning of which has been decided in that while as to percolating water the hundreds of cases, and, strange to maxim resulted in permitting all di- say, is still clear he who owns land version, its advocates as to the streams owns to the sky. He has as much held that it just as absolutely prohib- moral right to the sky as to the sur- ited any diversion, even by a riparian face. The man with a deed to a owner for his own riparian use. square mile of the surface of this 18 Slack v. Walcott, 3 Mason, 508, planet owns a great pyramid, apex- Fed. Gas. No. 12,932. ing at the earth's center and extend- 19 L. R. 1 App. Gas. 673. 698 Ch. 29. THEORY OF THE COMMON LAW. (3d ed.) 769 the soil upon which the water rests or over which it flows was the very point at issue. The river in suit being a navigable one, title to the bed was in the crown, and if the riparian right of use de- pended on the cujus est solum doctrine, the riparian proprietor, who owned none of the bed, would have no riparian right of use. The following passages are taken from the opinions of the lords in that case. 20 Lord Cairns, Chancellor: "The Lord Justice suggests that the right of a riparian owner in a non-navigable river arises from his being the owner of the land to the center of the stream, whereas in a navigable river the soil is in the Crown. As to this, it may be observed that the soil of a navigable river may, as Lord Hale observes, be private property. But putting this aside, I cannot admit that the right of a riparian owner to the use of the stream depends on the ownership of the soil of the stream." Lord Selborne: "With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights properly so-called, because the word 'riparian' is relative to the bank, and not the bed, of the stream The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by everyone having a right of access to it. It is, of course, necessary to the existence of a riparian right that the land should be in contact with the flow of the stream; but lateral contact is as good, jure naturae, as vertical ; and not only the word 'riparian' but the best authorities, such as Miner v. Gilmour, 21 and the passage which one of your Lordships has read from Lord Wensleydale 's judgment in Chasemore v. Richards, 22 state the doc- trine in terms which point to lateral contact rather than vertical." ^ In another case (in the Privy Council) holding that there is no dis- tinction between riparian rights on navigable and non-navigable rivers, 24 referring to the distinction "that in the case of a non- navigable river the riparian owner is proprietor of the bed of the 20 Italics ours. . from maintaining an embankment en- 21 12 Moore P. C. 131, 14 Eng. Re- tirely diverting the river from the print, 861. back of plaintiff's building, where 22 7 H. L. Cas. 349, 11 Eng. Re- plaintiff moored barges for handling print, 140. goods. 23 A decree to the contrary held 24 North Shore Ry. v. Pion, L. R. reversed and defendant was enjoined 14 App. Cas. 612, at 621. Water Rights 49 770 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 698 river ad medium filum aquae, which, in the case of a navigable river such as the St. Charles, belongs to the Crown," it was said: "The same distinction was contended for in Lyon v. Fishmongers' Com- pany, but the House of Lords, on grounds with which their Lord- ships concur, thought it immaterial. Lord Cairns rejected the proposition that the right of a riparian owner to the use of the stream depends on the ownership of the soil of the stream." The Lyon case is accepted in Lux v. Haggin. 25 In a recent case in the House of Lords, a claim was made to ownership of all the water of a river as a substance, and it was said: "This proposition is, of course, opposed to elementary ideas about the water of a river, for the water would not be the property even of the exclusive owner of the solum and of both banks at the place in question." l That the riparian right does not depend on ownership of the bed on the cujus est solum principle was held in Texas 2 and in California, 3 both holding that riparian rights to have the water for use for irrigation exist on navigable streams where title to the bed is in the State. And finally Lux v. Haggin expressly holds (relying on the Lyon case) that ownership of bed alone gives no riparian right. 4 25 69 Cal. 255, at 415, 10 Pac. 674. soil under the water or not." Died- "The ownership of land under water rich v. Northwestern etc. Co., 42 Wis. is not the foundation of riparian 262, 24 Am. Eep. 386. "Ownership rights, properly so called, because the of the land does not include ownership word 'riparian' is relative to the bank of the water which flows over or past and not to the bed of the water." 24 it." Rice, P. J., in Wilkes Bare Co. Am. & Eng. Ency. of Law, 981. "A v. Lehigh Co., 3 Kulp. (Pa.) 389. watercourse is quite a distinct thing l Lord Robertson in White v. from the land." Brown v. Best, 1 White, [1906] App. Cas. 83, House Wils. K. B. 174, 95 Eng. Reprint, of Lords. 557. A right to the use of flowing 2 Bingham Bros. v. Port Arthur water does not necessarily depend on etc. Co. (Tex. Civ. App.), 91 S. W. the ownership of the soil covered by 848, being affirmed, so far as this the water. City of Paterson v. East point is concerned, in 100 Tex. 192, Jersey W. Co., 74 N. J. Eq. 49, 70 Atl. 97 S. W. 686, 13 L. R. A., N. S., 656, 479. Riparian rights do not depend though reversed on other grounds. on ownership of the bed, and exist See cases cited regarding riparian where title to the bed is in the Crown, rights on navigable streams, sec. 726. or wholly in the opposite owner. Sal- 3 Heilbron v. Fowler etc. Co., 75 mond on Torts, p. 252. Riparian Cal. 426, 7 Am. St, Rep. 183, 17 Pac. rights do not depend on the bed. 19 535. H. L. R. 216n. "Riparian rights * Lux v. Haggin, 69 Cal. 255, at proper are held to rest upon title to 413, 10 Pac. 674, saying: "The plain- the bank of the water, and not upon tiffs, being owners only of swamp title to the soil under the water; ripa- lands (even conceding the water in rian rights proper being the same, the swamp might constitute a stream), whether the riparian owner owns the were owners only of the bed of the 699 Ch. 29. THEOKY OF THE COMMON LAW. (3d ed.) 771 To conclude, the "cujus est solum" doctrine, has no application to natural streams of running water. ' The word "land" includes standing or percolating water, but does not include naturally run ning water, because aqua profluens is governed by a civil-law rule. The riparian right of use is merely one of the numerous incidents attached to the riparian land, because it affords access to the stream. 5 (3d ed.) 699. Results. The application of the "cujus est solum" doc- trine to running waters gives rise to most of the matter so harshly commented upon to-day by opponents of the common law of ripa- rian rights in the West. We state here, citing the authorities later, some of the most important results of this view : The riparian right would not exist without ownership of the bed of the stream. It would not exist in navigable streams, where title to the bed is in the State. A loss of title to the bed (by grant for example), though retaining land on the banks, would lose the riparian right. Title to the bed alone would confer the right. None of these propositions is law. Any taking from the stream even by a riparian owner is- prima facie wrongful under the cujus est solum doctrine, as a destruction and annihilation pro tanto of the estates of other proprietors, whereas on the former view any taking by a riparian proprietor for stream, and were not riparian pro- to wharf out, which right is admit- prietors." tedly based upon his right of access. If the bed lies in one county and It is simply one of the various ripa- the riparian land in another, the rian rights, as per Lewis's enumera- water-right is not taxable as part of tion (as to navigable waters) as the bed in the former, but must be follows: "First. The right to be and taxed only in the latter county. See remain a riparian proprietor and to In re Hall, 116 App. Div. 729, 102 enjoy the natural advantages there- N. Y. Supp. 5. See cases cited in by conferred upon the land by its 8 Harvard Law Review, 141. adjacency to the water. Second. The Action to quiet title must be right of access to the water, including brought in county where riparian land a right of way to and from the navi- lies, not where bed of stream lies. gable part. Third. The right to build Miller v. Madera etc. Co., 155 Cal. 59, a pier or wharf out to navigable 99 Pac. 502, 22 L. R. A., N. S., 391. water, subject to any regulations by If a riparian owner dies, his right the State. Fourth. The right to ac- to the water passes by probate in the cretions or alluvium. Fifth. The State where the riparian land lies, not right to make a reasonable use of the where the bed of the stream lies (the water as it flows past or leaves the State boundary separating the two). land." Lewis on Eminent Domain, Slack v. Walcott (Story, J.), 3 Mason, 83. In sections 78 to 82 he elabor- 508, Fed. Gas. No. 12,932. ately sets out the Lyon case as estab- 5 There is a large body of law lishing the proper law. concerning the riparian owner's right 772 (3ded.) Pt.FV. THE COMMON LAW OF RIPARIAN RIGHTS. 699 use of his own land is prima facie rightful until shown to unreason- ably damage other riparian proprietors ; and solely an injury (if at all) to the right of use, present or future, of the complaining ripa- rian proprietor or to the value of his estate. In the discussion in a Nebraska case 6 it was seen that the decisions were not in accord with the statement that the riparian proprietor had a property right in the stream as a body as nature placed it upon, and made it a part of his estate, saying: "The nature and extent of a riparian pro- prietor's pecuniary interest or property in a stream cannot be measured by such a rule, nor can the rule now be said to be full and accurate statement of the law. ' ' 7 6 Crawford v. Hathaway, 67 Neb. Canal Co., 155 Cal. 82, 132 Am. St. 325, 108 Am. St. Rep. 647, 93 N. W. Rep. 59, 99 Pac. 520, 22 L. R. A., N. 781, 60 L. R. A. 889. , S., 401, 17 Ann. Cas. 823. And Lux 7 A recent California case, as be- v. Haggin, 69 Cal. 255, 10 Pac. 674, tween riparian proprietors, calls it calls it "what has been said to be the "the alleged common-law rule"; "this common law," and holds it a misrep- supposed rule"; "the so-called coin- resentation as to the rights of ripa- mon-law right." Turner v. James rian owners among themselves. 700-708. (Blank numbers.). 709 Ch. 30. NATUEE OF BIPAEIAN EIGHT. (3d ed.) 773 CHAPTER 30. NATURE OF RIPARIAN RIGHT. 709. Natural right. 710. Same. 711. Part and parcel of riparian land. 712. The right is usufructuary. 713. As subject of grant or contract. 714-722. (Blank numbers.) (3d ed.) 709. Natural Right. The riparian right has long been called a ' ' natural right. ' ' The explanation usually given to this term indicates the sound- ness of the doctrine that the right arises out of the access which the riparian land naturally, by the facts of nature, gives. Thus: "It has been well said that the rights of a riparian proprietor, so far as they relate to any natural stream, exist jure naturae, because his land has by nature the advantage of being washed by the stream; and, as the facts of nature constitute the foundation of the right, the law should recognize and follow the course of nature in every part of the same stream. ' ' * And another case says : ' ' The right exists because the stream runs by the land, and thus gives the natural advantages resulting from the relative situation." 2 And in Chase- more v. Richards, 3 Lord Wensleydale (Baron Parke) says the right ex jure naturae belongs to the proprietor of the adjoining lands as a natural advantage belonging to the land upon the same principle that he is entitled to support from his neighbor's soil for his .own in its natural state, thereby explaining "natural right" on the ground of being contiguous to or adjoining the stream in its natural situation. Professor Pomeroy said: "The laws of nature certainly give a natural right and advantage, from their superiority of posi- tion, to those who own land lying on the banks of natural streams. It is an undeniable fact that such proprietors have a natural right as compared with those who own land at a distance from streams." 4 1 Baker, J., in Indianapolis W. Co. 2 Duckworth v. Watsonville etc. v American etc. Co, 53 Fed. 970. Co., 150 Cal. 520, 89 Pae. 338, per Mr. c 4 j u T * Justice Shaw. The expression was first used by Lord . * TT T n o.m 11 T> , -, 3 7 H. L. Cas. 349. 11 Eng. Eepnnt, Selborne in Lyon v. Fishmongers' Co., 14Q L. B. 1 App. Cas. 673, as to which 4 Pomeroy on Eipariah Eights, sec. case see, also, supra, sec. 698. 152. 774 (3d ed.) Pt. IV. THE COMMON LAW OF EIPABIAN EIGHTS. 709 As a result of the favorable situation with access to the stream, while the riparian owner's right is negative as to the corpus of the water and not an ownership thereof, it is a positive right in respect to the use of his land. His riparian estate is made up of many ele- ments, not alone the actual soil, but other natural advantages of situation without which the soil would not have its character and potentialities of use. Pure air, the right of support, benefits from flowing water, all such intangible ingredients, mixing together w r ith the soil itself, join to form the value or quality of the estate owing to its natural position ; their preservation maintains the use of the land. They are all "natural rights" in the sense that they are an essential part of the value of the estate in its natural condition. 5 Nor do they depend upon use. The right to build a house on one's own land is also in this sense a "natural right" in the sense that the right to do so goes with ownership of the land, whether a house is actually built or not. 6 And so, likewise, the right to use the water flowing by one's land and to receive its benefits remains inherent in the riparian land whether it is actually put to use by erecting irrigation or other works or not. The term "natural right" is further used as indicating natural origin in contradistinction to rights in artificial conditions resting upon grant or prescription. 7 An old case distinguishes a water- course from an easement by saying, that "a watercourse is a thing natural." 8 6 "These rights are, in simple truth, Stokoe v. Singer, 8 El. & Bl. 31. A merely fractions of that complex natural right is said to be one which bundle of rights which we call owner- is necessary to preserve the status ship, and which are recognized by the quo, adding that it is "a right of the law as existing independently of owner to the enjoyment of his prop- special grant or contract, express or erty, as distinguished from an ease- implied." Jenks on Modern Land ment supposed to be gained by grant" Law, p. 166. (Lord Selborne, C., in Dalton v. An- 6 "The right of the owner of the gus, 6 App. Gas. 791, adding), "The soil to the free use and enjoyment of right, therefore [of support] in my the same is held to exist anterior to opinion is properly called an ease- any erection that may be made by an ment; though when the land is in its adjoining proprietor." Tenney v. natural state the easement is natural Miners' D. Co., 7 Cal. 340, 11 Morr. and not conventional. The same dis- Min. Eep. 31, and hence the doctrine tinction exists as to rights in respect of "coming to a nuisance" does not of running water; the easement of apply. the riparian landowner is natural, that 7 Supra, sec. 51 et seq. of the mill owner on the stream, so 8 Shury v. Pigott, Poph. 168, 79 far as it exceeds that of an ordinary Eng. Eeprint, 1263. riparian proprietor, is conventional; i. Another says, "The right to the nat- e., it must be established by prescrip- ural flow of water is not an easement, tion or grant." Again, natural rights but a natural right." Earl, J., in are said to be such as are given by 709 Ch. 30. NATURE OF RIPARIAN RIGHT. (3d ed.) 775 The riparian right has been compared to the right a landowner has to tiie free passage of unpolluted air, 9 and has often been com- pared to the right of support. 10 They are not servitudes upon an- other's property, but are rights to the enjoyment of one's own property. 11 The term "natural right" hence contemplates a natural ad- * vantage or privilege of the land inherent in its favorable position with respect to the stream as a natural resource, the preservation of which advantage is, to the extent that it is or may be beneficial to the land, necessary to the preservation of the use and value of the land, whether actually exercised or not. It could not be better put than in a recent California case, in which Mr. Justice Shaw said: "It comes from the situation of the land with respect to the water, the opportunity afforded thereby to divert and use the water upon the land, the natural advantages and benefits resulting from the relative positions, and the presumption that the owner of the land acquired it with a view to the use and enjoyment of these ' Opportunities, advantages and benefits. ' ' 12 And this idea that the right is a "natural" one in the sense of being made up of these intangible natural advantages and benefits runs through all the better opinions upon the subject. 13 law, because without them there would be no security in the enjoyment of the land by its owner; benefits provided in the course of nature for the com- mon good of all, which shall not be wrested from one by the act of an- other. Gray v. McWilliams, 98 Cal. 161, 35 Am. St. Rep. 163, 32 Pac. 976, 21 L. R. A. 593. See Backhouse v. Bonomi, 9 H. L. Gas. 513; 11 Eng. Reprint, 825; Dalton v. Angus, L. R. 6 App. 740. 9 Embrey v. Owen, 6 Ex. 353, 20 L. J. Ex. 212; Chasemore v. Richards, 7 H. L. Cas. 349, 11 Eng. Reprint, 140, Lord Cranworth; Dalton v. Angus, 6 App. Cas. 752, Field, J. ; Ramsbotham v. Wilson, 8 El. & Bl. 123, Willes, J.; Shury v. Pigott, Poph. 169, 79 Eng. Reprint, 1263. "The right to running water has always been properly described as a natu- ral right, just like the right to the air we breathe; they are the gifts of nature, and no one has a right to appropriate them." Lord Crahworth in Chaeemore v. Richards, 7 H. L. Cas. 349, 11 Eng. Reprint, 140. 10 Dalton v. Angus, 6 App. Cas. 791, Selborne, C., and Field, J.; Chasemore v. Richards, Lord Wensley- dale; Dickinson v. Canal Co., 7 Ex. 299; Ramsbotham v. Wilson, 8 El. & Bl. 123, Willes, J.; Washburn on Easements. In Dalton v. Angus, Field, J., said these rights and bur- dens come into existence by implica- tion of law at the very moment of severance of an estate into parcels, and require no age to ripen them. H Lord Wensleydale in Backhouse v. Bonomi, 9 H. L. Cas. 503, 11 Eng. Reprint, 825. The riparian right is properly a right of property in itself and not a servitude. Ill Droit Civile Francais, par Aubrey & Rau, 4th ed., p. 34, note 1. 12 Turner v. James Canal Co., 155 Cal. 82, 132 Am. St. Rep. 59, 99 Pac. 520, 22 L. R. A., N. 8., 401, 17 Ann. Cas. 823. 13 Lord Ellenborough says (Bealey v. Shaw, 6 East, 208, 102 Eng. Re- print, 1266) : "The general rule of law as applied to this subject is that, in- dependent of any particulai enjoy- 776 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 710 (3d ed.) 710. Same. There has been an explanation given to the term which is misleading and should be noted and laid aside. For example: The meaning of "natural right," as applied to waters, was discussed in one case, 14 concluding that it refers to natural jus- tice, saying: "I am not, therefore, introducing any novel principle if I regard jus naturae on which the right to running water rests, as meaning that which is aequum et bonum between the upper and lower proprietors. ' ' 15 Referring to the following : ' ' Unde dicitur ius naturale est quod natura, id est, ipse Deus, docuit omnia ani- malia." 16 But this is a relic of a past day in the philosophy of the law; we do not now look to the "law of nature" or divine instruction for the settlement of the rights of irrigators. Says the court in Lux v. Haggin: 17 "We have been warned lest in approaching the sub- ment used to be had by another, every man has a right to have the advantage of a flow of water in Ms own land." In Johnson v. Jordan, 2 Met. (Mass.) 239, 37 Am. Dec. 85, Shaw, C. J., says: "Every person, through whose land a natural watercourse runs, has a right, publici juris, to the 'benefit of it as it passes through his land, to all the useful purposes to which it may be applied." Concisely put, "The property, therefore, consists, not in the water itself but in the added value which the stream gives to the land through which it flows." Price v. High Shoals Co., 132 Ga. 246, 64 S. E. 87, 22 L. R. A., N. S., 684. 14 Bradford Corporation v. Ferrand, [1902] 2 Ch. 655. 15 Blackstone says: "This law of nature, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other." 1 Blackstone's Commentaries, 41. Austin says : "I may immediately explain in this place the nature of certain rights, which have been confounded by mysterious jargon; namely, those which are called nat- ural or inborn, and by Blackstone, absolute rights." Austin's Jurispru- dence, sec. 1013. 16 Bracton, as quoted in Vol. 8, Selden Society, p. 33. This expres- sion is like "Sic utere tuo ut alienum non laedas," which is sometimes thought the "open sesame" of this and all other branches of the law. It means little because it includes everything, like its proper transla- tion, "Thou shalt do no wrong." (See Cal. Civ. Code, sec. 3514.) For an attempt to develop the common law of waters directly from this maxim, see Phear on Rights of Water. He says the "alienum" of the maxim becomes "very compre- hensive" when he tries to fit the de- cisions to it (page 22). He defines the term "natural right" as follows: "The rights which spring from the exclusive power, given by the com- mon law to every possessor of prop- erty, of doing what he likes with his own, when modified by the rule which has just been discussed [sic utere tuo, etc.] may be conveniently designated Natural Rights" (page 7). Is this any less a "mysterious jargon" than that above referred to by Austin? Austin (II, p. 829) fur- ther points out that if by "laedas" is meant mere damage, the maxim is untrue as a legal proposition; if it means "injury" it tells us noth- ing, as it affords no explanation of the distinction between damage and injury. Digby on History of Real Property, 5th ed., p. 188, note. Phear's definition of Natural Right is borrowed by Angell on Water- courses, 7th ed., p. 190. 17 69 Cal. 255, 10 Pac. 674. 711 Ch. 30. NATURE OF RIPARIAN RIGHT. (3d ed.) 777 ject we shall assume that, in the very nature of things, running waters are inseparably connected with the riparian lands. It may be conceded that if riparian owners have any right in the waters (or in the lands themselves), it is such as is created or recognized by the law of the land The whole matter depends upon the law of the country, written or unwritten. ' ' Perhaps the origin of the term is involved Somewhat in the dis- tinction between natural and artificial uses discussed below. The common law considered that there were natural, ordinary or ele- mental uses of land that could be made regardless of damage to a neighbor, which in such case was considered damnum absque in- juria. Such was the taking of the whole stream, if necessary, for the support of life on the riparian land a natural or elemental use of property, the right to make this natural use being termed a "natural right" or advantage belonging to the land. 18 (3d ed.) 711. Part and Parcel of Riparian Land. Unlike an appro- priation, 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 riparian right is a privilege that is part and parcel of the riparian land that gives the access to the water ; the right of access and all that follows from it being an inseparable result from owner- ship of the land like the right of support for the land. The ripa- rian right is inherent in the riparian land and part and parcel of it; an inherent result of the relative position of the land to the stream as a natural resource. The following quotations show how this is put in the authori- ties: "It is held by practically all the better authorities that the right of the riparian owner to the natural flow of the stream by or across his land in its accustomed channel is an incident to his estate and passes by a grant of the land, unless specifically re- served. It is not an easement in or an appurtenance to the land," etc. 19 Says the court in Lux v. Haggin, 20 "By the common law, the right of the riparian proprietor to the flow of the stream is in- separably annexed to the soil, and passes with it, not as an easement 18 See Natural Uses, infra, sec. words are chiefly copied from the 740. opinions of Chief Justice Shaw of 19 Benton v. Johncox, 17 Wash. Massachusetts in Eliott v. Fitch- 277, 61 Am. St. Rep. 912, 49 Pac. burg Ry., 10 Cush. (Mass.) 191, 57 496, 39 L. R. A. 107. Am. Dec. 85, and Johnson v. Jordan, 20 69 Cal. 255, 10 Pae. 674. The 2 Met. (Mass.) 239, 37 Am. Dec. 85. 778 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 711 -or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it." Said Chan- cellor Kent: "A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold of which no man can be disseized but by lawful judgment of his peers, or by due process of law. ' ' 21 Another authority says : ' ' The right of enjoying this flow without disturbance or interruption by any other proprietor is one jure naturae, and is an incident of property in the land, not an appurtenance to it; like the right he has to enjoy the soil itself, in its natural state, unaffected by the tortious acts of a neighboring landowner. It is an inseparable incident to the ownership of land, made by an inflexible rule of law an absolute and fixed right, and can only be lost by grant or .... adverse possession." 22 In another case it is said: "His rights are not ease- ments or appurtenances to his holdings. They are not the rights acquired by appropriation or by prescriptive use. They are at- tached to the soil and pass with it." 23 And another: "The right or title to the stream as it passed was a part and parcel of his land, a part of the realty. ' ' 24 The right was compared by Lord Wensleydale (Baron Parke) in Chasemore v. Richards to 'the right of the land to the support of adjoining land, a natural attribute of the land in its natural situ- ation, and this comparison to the right of support has passed into the authorities generally. One authority compares the right to a right of common or pasturage appurtenant to the land. 25 but as the above authorities show, the law does not consider it an easement or appurtenance. 1 The right is part and parcel of the land, ac- quired by virtue of ownership of the land, without any special 21 Gardner v. Newburgh, 2 Johns. v. Dangberg, 81 Fed. 73 ; Wads- Ch. 166. worth v. Tillottson, 15 Conn. 366, 22 Washburn on Easements, 4th 39 Am. Dec. 391; Carey v. Daniels, ed., pp. 316, 317. 49 Mass. (8 Met.) 466, 41 Am. Dec. 23 Hargrave v. Cook, 108 Cal. 72, 532. 41 Pac. 18, 30 L. R. A 390 and ^ ^^ Todmorden c n Anderson v. Bassman, 140 Fed. 22. n -p , 70 T T 24 Mr. Justice Shaw, in Duck- ^ R 172 > Bowen > L ' J " worth v. Watsonville etc. Co., 150 l See, also, Lux v. Haggin, 69 Cal. 520, 89 Pac. 338. Cal. 255, at 293, 10 Pac. 674; Vernon Also Southern California Co. v. v. Los Angeles, 106 Cal. 237, 39 Pac. Wilshire, 144 Cal. 68, 77 Pac. 767; 762; Pomeroy on Riparian Rights, Huffner v. Sawday (1908), 153 Cal. sec. 9. The riparian right is spoken 86, 94 Pac. 424; Miller v. Madera of as an "appurtenance" in Rianda etc. Co., 155 Cal. 59, 99 Pac. 5t)2, 22 v. Watsonville etc. Co. (1907), 152 L. R. A., N. S., 391; Union Min. Co. Cal. 523, 93 Pac. 79. 711 Ch. 30. NATURE OF RIPARIAN RIGHT. (3d ed.) 779 formalities of any kind. 2 It passes ipso facto with the land on a sale, as part and parcel thereof. 3 The riparian right may, on a partition of riparian land, be partitioned with the land; the sub- divided rights of the partitioned parcels still retain their character of a riparian right as between the parties to the partition. 4 A deed of land with general warranty includes, without more, a war- ranty of riparian rights, but does not necessarily include a warranty of a right by appropriation. 5 It is subject to taxation as realty, 6 and is property and may be condemned under a statute mention- ing "land." 7 The right is held to be incorporeal a privilege of use and not an ownership of a tangible substance so that, being incorporeal, con- tracts concerning it cannot create the relation of landlord and tenant, since tenancy can exist only in things corporeal ; 8 nor will ejectment lie to recover a watercourse diverted from a riparian owner; 9 nor is it corporeal property taxable as part of the stream bed; it is taxable only as an incorporeal incident to the riparian land. 10 Justice Story 11 said that the riparian right "is not a dis- tinct right to the water, as terra aqua cooperta," and is not a corporeal hereditament, but is an incorporeal hereditament annexed 2 Lux v. Haggin, 69 Cal. 255, at point by confusing the corpus and 390, 10 Pac. 674; Bathgate v. Irvine, the usufruct.) 126 Cal. 135, 77 Am. St. Rep. 158, 6 Penobscot Co. v. Inhabitants of 58 Pac. 442. Bradley, 99 Me. 263, 59 Atl. 83. TT an n i orr -in 7 Northern Cal. etc. Co. v. Stacher, P U -A \ ggin ' P t ina 'r i I 3 Cal. App. 404, 109 Pac. 896. ?9 aC ki P 5 iTC? % A Vn ? i? 8 Swift v. Goodrich, 70 Cal. 103, 72, 41 Pac. 18, 30 L. R. A. 390; Ben- -i i p rpi ton v Johncox 17 Wash, 277 61 V/^., and Shury v. Piggott, Am St Rep 912 49 Pac^, 39 L. L ' * R. A. 107; Rianda v. Watsonville 1rt Q ' T ' xr-ii ii A TV etc. Co. (1907), 152 Cal. 523, 93 Pac. J gjj n Han, 116 App. D,v. 79. That the riparian right passes ^ * r J es ^^ gunt ipso facto on a sale of the land t ^ ^ ^ ^ ea Shamleffer v Council etc. Co., 1 * jure C( f nsistun ' t M sicut her editas, Kan. 24, 26 Am. Dec. ,60; as part ^ ufr ct obligation ' eS) quoquo mode ' W T^ V in9 v'w contractae" ete. ("Things incorpo- '-^v , lfi ',i\ 9^' real are ntangible; rights, for in- T 9T > ?S ( }> P> stance ' 8uch as g inhe'ritaL, 'usufruct, J> I ^ b ' z obligation, however contracted.") 4 Verdugo Canyon W. Co. v. Ver- institutes of Gaius, sec. 12; identical dugo (1908), 152 Cal. 655, 93 Pac. i n Institutes of Justinian, V. That 1021. See, also, Rose v. Mesmer, tne r ip ar i an right of use is incorpo- 142 Cal. 322, 75 Pac. 905. rea l, see, also, Washburn on Ease- 5 Dalton v. Bowker, 8 Nev. 190. ments, 307. (But cf. Mitchell v. Warner, 5 Conn. Slack v. Walcott, 3 Mason, 508, 519, which seems in error on this Fed. Cas. No. 12,932. 780 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 712 to the freehold. The right is "an incorporeal hereditament apper- taining to the freehold." 12 (3d ed.) 712. The Right is Usufructuary. That the riparian right, like the right by appropriation, is solely usufructuary, has already been set forth at length, 13 and need not be again considered further than to say that the riparian proprietor ''has no property in the water itself, but a simple use of it while it passes along." 14 The right is to a flow and use merely, a right now or in the future or at any time he sees fit, to use the water as naturally following owner- ship of the bordering lands, but involving no ownership in the corpus of the water; just as riparian owners have a right to fish in the stream, but do not own the fish swimming there. 15 In Lux v. Haggin 16 the California court elaborately reviewed the entire law of waters, and this is there laid down: "As to the nature of the right of the riparian owner in the water, by all the modern as well as ancient authorities the right in the water is usufructuary, and consists not so much in the fluid itself as in its uses. " 17 As stated 12 St. Helena W. Co. v. Forbes, 62 Cal. 182, 45 Am. Dec. 659. We here use the word "incorporeal" in its ac- cepted sense to-day, as denoting the distinction between things tangible and intangible. In its old common- law sense, distinguishing only things which "lay in livery" and those which "lay in grant," the riparian right is corporeal because it passes only with the land, is not the subject of sepa- rate grant, and hence lay only in livery. In this sense it is an in- tangible, yet corporeal, hereditament; but in the present-day sense no in- tangible things are considered cor- poreal hereditaments, just as in the civil law above quoted. 13 Supra, cc. 1, 2, 29. 14 Justice Story, in Tyler v. Wil- kinson, 4 Mason, 397, Fed. Gas. No. 14,312. 15 People v. Truckee etc. Co., 116 Cal. 397, 58 Am. St. Rep. 183, 48 Pac. 374, 39 L. R. A. 581. The following puts it so admirably that the writer cannot forbear find- ing a place for it: "Besides this or- dinary right of property [in the bed] which is precisely the same when the river is there, as if it were to dis- appear and the channel become dry, they have a common interest arising from another right, as they have each a right in the water not of prop- erty, for certainly aqua proftuens is not the subject of property as long as it is running. When you get it into your pitcher or pipe it becomes your property, just as game and fish when they are caught become the property of the person who catches them; but while it is flowing and in its channel, no portion of the water, either on one side of the alveus [bed] or the other, belongs to one party or the other. It is as much the prop- erty of no one as the air that we breathe or the sunlight that shines upon us. But each heritor, as it passes, has a right of an incorporeal kind to the usufruct of that stream for domestic purposes and for agri- cultural purposes, and it may be also for other purposes, subject to cer- tain restrictions." Lord Neaves in Morris v. Bicket (1864), 2 M. 1082, 4 M. H. L. 44 (Scotch); Ferguson on The Law of Water in Scotland, p. 199. 16 69 Cal. 255, 10 Pac. 674. 17 In the French law it is said that riparian owners have the rights of use mentioned in article 644 of 713 Ch. 30. NATURE OF RIPARIAN RIGHT. (3d ed.) 781 by Mr. Justice Henshaw: 18 "The right of a riparian proprietor in or to the waters of a stream flowing through or along his land is not the right of ownership in or to those waters, but is a usu- fructuary right a right, amongst others, to make a reasonable use of a reasonable quantity for irrigation, returning the surplus to the natural channel, that it may flow on in the accustomed mode to the lands below." 19 This usufruct is perpetually annexed to the riparian land whether availed of by irrigation or other works or not at all; just as the right of the landowner to build a house on the land remains though no house is ever actually built. The right of use remains part of the value of the estate whether the estate is put to use or not, for the common law does not force a man on pain of forfeiture to use his land or other property if he does not want to. "The use to which one is entitled is not that which he happens to get before another, but it is that which, by reason of his ownership of the land on the stream, he can enjoy on his land and as appurtenant to it." 20 The riparian owner usually owns the bed to the middle of the stream, but the right is independent of that fact, 21 and exists also in navigable streams, where the title to the bed of the stream is in the State, 22 and, on the other hand, does not exist in favor of one owning only the bed, and no bank-lands. 23 (3d ed.) 713. As Subject of Grant or Contract. We shall, in a later chapter, discuss grants or contracts by riparian owners, 24 and here but mention the subject as an illustration of the nature of the riparian right. Any riparian owner may make, with other riparian owners or even with nonriparian owners, such arrangement as he may choose the Code Napoleon], also the right to themselves. The opinion then pro- fish, and the right to islands formed ceeds to state that against nonripa- there. "Sauf ces avantages accordes rian owners the riparian proprietor's aux riverains, les cours d'eau nat- right to a perpetual usufruct is un- urels, non navigable, ni flottable, ne limited. se trouvent dans le patrimoine de per- 20 Ruffin, C. J., in Pugh v. Wheeler, sonne." Droit Civile Francais, by 19 N C (2 Dev & B ) 55 Aubrey & Ban, Vol II, p. 36, and in 21 a note, "Us ne sont pas susceptibles d'etre acquis par voie d'occupation." 2 Infra, sec. 726. is Hargrave v. Cook, 108 Cal. 72, 23 Lux v. Haggin, 69 Cal. 255, at 11 Pac. 18, 13 L. R. A. 390. 413, 10 Pac. 674. is The statement of the limitation 24 Infra, sec. 844 et seq. in regard to riparian owners among 782 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 713 as against himself. He has power to bind himself in the matter, although it is not clear whether this is because the effect is to transfer, as against himself, such interest as he may have, or only to estop him to deny his grant, and thus to extinguish his own right as against his grantee. As to the latter explanation it is not clear how it can be reconciled with the settled doctrine that such grants or contracts are within the statute of frauds, and it presents other difficulties. But, as a general principle, against noncontracting riparian owners, he can make no grant for any purpose or to any extent for use off his own riparian land. The right is naturally bound up in the riparian owner's land as an element of the use of his own land, and exists only because of the value and character which it gives to that very land. Separating it from that land separates it from its foundation. It is in reference to the riparian owner's own land that his right is correlated to the right of other riparian owners, and not with reference to some other land to which he may like to carry, or sell the right to carry, the water. Other ripa- rian owners in regard to their own land are required to figure only on the use of their neighbors' own land; for the reasonable use thereof they must make due allowance in considering their own correlative right ; but are called upon to make no allowance in favor of any riparian owner or his grantee as to any land other than the riparian owner's own, nor even any use on his own land which the riparian owner may license to others, greater than he could be allowed to make himself. Hence the grant by a riparian owner for use off the grantor's land is ineffectual against other riparian owners. Possibly an exception may exist in extreme cases where the non- riparian use granted is such that it cannot possibly impair the use of the land, nor lessen its value, of the complaining riparian owner at any time even in the future. On any but very large streams such supposable cases are remote, but may possibly exist ; as where, for example, the grant is to a nonriparian owner who uses the water only for cooling off machinery and returns it undiminished and unpolluted to the stream ; 25 or where the land of the complain- ing riparian owner is worthless, unproductive, and the use of water could never become an element of value of his estate. In such extreme cases, where there is no detraction from the possible present 25 Kensit v. Great Eastern By. Co., 27 Ch. D. 122. 713 Ch. 30. NATURE OF RIPARIAN RIGHT. (3d ed.) 783 or future benefits and advantages to the complaining proprietor's riparian land or its use or value, it is a question on principle whether he is suffering any wrong. But such cases are, on the whole, extreme ; usually the grant is of sufficient water or for such purpose of use as to diminish the value or potentialities of the com- plaining riparian estate ; and as a general rule the statement must be made (though reluctantly, as the readers of previous editions of this book will know) that noncontracting riparian owners are not in any way bound by or required to recognize a grant made by other riparian owners. Further discussion will be found in later chapters. 1 1 Infra, sees. 795, 814, 844. 714-722. (Blank numbers.) 784 (3d ed.) Pt. IV. THE COMMON LAW OF KIPARIAN EIGHTS. 723 CHAPTER 31.. WHAT PERSONS AND UPON WHAT WATERS. 723. Who are riparian proprietors. 724. Landholders less than in fee. 725. Upon what waters Watercourses. 726. Navigable streams. 727. Interstate streams. 728. Standing water Lakes Ponds. 729. Percolating water. 730-738. (Blank numbers.) (3d ed.) 723. Who are Riparian Proprietors. Only those who own land touching the stream and in contact with its flow are riparian proprietors. 1 One having title only to the bad is not a riparian proprietor. 2 When the bed is dry its bank owners are not riparian proprietors to other parts of the stream where it may still flow. 3 ' "When the stream ceased and the channel became dry, he, for the time being, ceased to be a riparian owner, so far as a present use of the water was concerned. His land did not, at those times, border upon any stream, ' ' 4 but a subsurface flow being proved, the fact that there is no surface flow does not make a case within this rule ; he is still a riparian owner. 6 The rights of one owning land abutting upon an inlet or slough, connecting with a stream, to take water are equal to those of riparian proprietors on the stream itself. 1 Lyon v. Fishmongers' Co., quoted 3 Stacy v. Delery (Tex. Civ. App supra, sec. 698; Lux v. Haggin, 69 (1909), 122 S. W. 300. Cal. 255, 10 Pac. 674; Hayden v. 4 Gutierrez v. Wege, 145 Cal. 730, Long, 8 Or. 244. "All riparian 79 Pac. 449; Duckworth v. Watson- rights depend upon the ownership of ville etc. Co., 150 Cal. 520, 89 Pac. land which is contiguous to and 338. See infra, see. 768, riparian touches upon the water." Sullivan land. Timber Co. v. City of Mobile, 110 5 Infra, sec. 1078 et seq.; Huffner Fed. 196. v. Sawday, 153 Cal. 86, 94 Pac. 424 2 Lux v. Haggin, 69 Cal. 255, at (valley dry in summer, flowing only 413, 10 Pac. 674; Page v. Mayor, in November to June; sandy soil and 10 App. Div. 294, 41 N. Y. Supp. changing bed; abutting owners held 938. But see Anaheim W. Co. v. to be riparian proprietors). Fuller, 150 Cal. 329, 88 Pac. 978; 6 Turner v. James Canal Co., 155 McCarter v. Hudson W. Co., 70 N. Cal. 82, 132 Am. St. Rep. 59, 99 Pac. J. Eq. 695, 118 Am. St. Eep. 754, 520, 22 L. E. A., N. S., 401, 17 Ann. 65 Atl. 489, 10 Ann. Gas. 116. Gas. 823. 724 Ch. 31. WHAT PERSONS AND WHAT WATERS. (3d ed.) 785 If a stream flows through a city, there are authorities that the city as a whole is a riparian proprietor. 7 But the writer's impres- sion is that the better decisions hold only the lot owners touching the stream as the riparian proprietors. 8 (3d ed.) 724. Landholders Less Than in Fee. The owners of pos- sessory rights on riparian public land, constituting equitable claims, such as initiatory homestead claimants, have the rights of riparian owners from the first necessary proceedings. 9 But forfeiture of title to the land occurring, he is no longer a riparian proprietor, as where a pre-emption or mining claim is abandoned. 10 Where an Indian reservation is thrown open to settlement, it becomes vacant public land, and the settler cannot claim successorship to the Indians as riparian proprietors. 11 The owner of a mining location may be a riparian proprietor. 12 In the pioneer days before the Federal statutes for acquiring land titles it remained unsettled whether a mere squatter on ripa- rian public land could claim as a riparian proprietor as against later appropriators. Crandall v. Woods 13 held that he could ; that only the United States could raise the point that settlers were trespassers ; 7 City held to be a riparian pro- water on an innavigable stream. Mc- prietor and may as such take water Carter v. Hudson etc. Co., 76 N. J. for domestic use of its inhabitants Eq. 695, 118 Am. St. Rep. 754, 65 but not to supply outside lands. Atl. 489, an anomalous statement Canton v. Shock, 66 Ohio, 19, 90 Am. made only arguendo in a generally St. Rep. 557, 63 N. E. 600, 58 L. R. poor opinion. See 19 Harvard Law A. 637. Review, 216 note; City of Paterson v. Compare Haupt's Appeal, 125 Pa. East Jersey W. Co., 74 N. J. Eq. 49, 211, 17 Atl. 436, 3 L. R. A. 536; 70 Atl. 472. Quaere, how far a rail- Barre W. Co. v. Games, 65 Vt. 626, road is a riparian proprietor where it 36 Am. St. Rep. 891, 27 Atl. 609, 21 owns the fee of its roadbed crossing L. R. A. 769; Riggiey v. Tacoma Co., or paralleling a stream. This is dis- 9 Wash. 245, 37 Pac. 297, 26 L. R. cussed in McCartney v. Londonderry A. 425; Tampa W. W. Co. v. Cline, etc. Ry. Co., [1904] App. Gas. 301, 311. 37 Fla. 586, 53 Am. St. Rep. 262, 20 Supra, sec. 261. South. 780, 33 L. R. A. 376; New 10 Conkling v. Pacific Imp. Co., 87 Whatcom v. Fairhaven Co., 24 Wash. Gal. 296, 25 Pac. 399. 493, 64 Pac. 735, 54 L. R. A. 190; U Morris v. Bean (Mont.), 146 Stauffer v. East Stroudsburg Borough, Fed. 432 (dictum), affirmed in 159 215 Pa. 144, 64 Atl. 411; Los Angeles Fed. 651 ; 86 C. C. A. 519. See supra v. Los Angeles W. Co., 124 Gal. 368, sec. 153, note 19. 57 Pac. 210, 571; City of Schenectady 12 Crandall v. Woods, 8 Cal. 136, v. Furman, 61 Hun, 171, 15 N. Y. 1 Morr. Min. Rep. 607; Leigh v. Supp. 724. Ditch Co., 8 Cal. 323, 12 Morr. Min. 8 The State has been said to be a Rep. 97. riparian proprietor, by reason of its 13 8 Cal. 136, 1 Morr. Min. Rep. ownership of the foreshore at tide- 604. Water Rights 50 786 (3d ed.) Pt. IV. THE COMMON LAW OF EIPABIAN EIGHTS. 725 while in Nevada it was held that he could not. 14 But now, since the systematization of the Federal system for acquiring land titles, a mere squatter on public land cannot claim as riparian proprietor by virtue of his naked possession without having made or intending to make such filings or declarations in the land office as the Federal statutes may require. 15 A trespasser on public land is for some purposes deemed the owner, but when one asserts riparian rights as against an upper appropriator of water he must show some rightj inchoate or otherwise, to the land. 16 And especially has he to-day no right which he can assert against the United States on unsur- veyed land when it withdraws the land for the Reclamation Ser- vice. 17 How far a trespasser on private land may be regarded as a riparian owner we have already mentioned. 18 On principle it would seem that the rule of Crandall v. Woods, supra, should still apply as to private land; that against strangers to the landowner the trespasser's possession of the riparian land is alone title enough to entitle him to the rights of a riparian owner against all but the owner of that land. 19 It would, as already said, still also apply as to public land if it were not that it is expressly or impliedly contrary to the policy of the Federal statutes and the Federal land system, as to squatters who have made no filings on the land. (3d ed.) 725. Upon What Waters Watercourses. The right at- taches to the whole natural stream, including its subflow 20 and storm waters 21 and tributaries. 22 A slough or branch emptying into the main stream may be a part thereof so as to entitle an owner on such slough or branch to go off his land and, with consent of a riparian owner on the main stream (or on public land), take water from the main stream for use on his land riparian to the slough or branch. While he is not a riparian owner on the main stream, it does not preclude him from I* See supra, sec. 261. 19 See Salmond on Torts, see. 15 Supra, sec. 261. 20 Infra, sec. 1078. 16 Silver Creek & Panoche Land & 21 Infra, see. 828. Water Co. v. Hayes, 113 Cal. 142, 45 22 Supra, see. 337; Barneich v. Pac. 191. Mercy, 136 Cal. 205, 68 Pac. 589; 17 United States v.Hanson (Wash.), Hollett v. Davis (1909), 54 Wash. 167 Fed. 881. Cf. Messenger v. 326, 103 Pac. 423; Chauvet v. Hill, Kingsbury, 158 Cal. 611 (1910), 112 93 Cal. 107, 28 Pac. 1066; Wasbburn Pac. 65. on Easements, 4th ed., p. 396, star 18 Supra, sees. 221, 246, 319. p. 275, sec. 324. 726 Ch. 31. WHAT PERSONS AND WHAT WATERS. (3d ed.) 787 claiming as riparian owner on the upper 'branch even though the branch flows into the main stream only at times of unusually high water or floods. 23 And in another case 24 it was held that a slough owner could, as riparian proprietor on the slough, take water from the main stream. 25 What constitutes a watercourse depends on the same principles as those already discussed. 1 Eiparian rights exist in definite known underground streams. 2 Riparian rights do not appertain to artificial streams except by lapse of time. 3 (3d ed.) 726. Navigable Streams. Riparian rights exist in navigable streams, 4 though the State owns the bed, and the riparian pro- prietor owns none of the soil under the water; for the right de- pends upon bordering on the stream and owning land on its banks, not the bed. The leading case is Lyon v. Fishmongers' Company, 5 already quoted, 8 wherein it is further said by Lord Chelmsf ord : "Upon this second question the Lords Justices said they were 'un- able to find any authority for holding thajt a riparian proprietor where the tide flows and reflows has any rights or natural easements vested in him similar to those which have been held in numerous cases to belong to a riparian proprietor on the banks of a natural stream above the flow of the tide.' But with great respect, I find 23 Strong v. Baldwin (1908), 154 water could not extend so as to carry Cal. 150, 129 Am. St. Rep. 149, 97 riparian rights in the stream to the Pac. 178. land along its borders. The only rea- 24 Turner v. James Canal Co., 155 sonable conclusion is that no such dis- Cal. 82, 132 Am. St. Rep. 59, 99 Pac. tinction exists, and that the rights of 520, 22 L. R. A., N. S., 401, 17 Ann. al l persons owning land adjoining Cas 823 upon the stream, or upon any bay, 25 The court said: "The court finds/ inlet or . slou 8 h connecting therewith, however, Mat Fresno Slough is always "? e ^ al and **tensive with those > -iu *u Q T TO.,/. f persons owning land bordering " the main cufrent or into the slough, or into the river from the slough, as one may be higher 1 Supra, sec. 333 et seq. than the other at the particular time. 2 Infra, sec. 1077. Under the circumstances, we think 3 Supra, sec. 51 et seq. that a person owning land abutting 4 gmith v Q{ Qf Rochest 92 N upon the slough has an equal right to y ^ ^ Am. Dec. 393, and cases take water therefrom, and an equal ^/ ro right to a reasonable share of the water, with another person who owns ' L - R - * A PP- Cas - 6 ' 3 > affirmed land abutting upon the main stream. m North Shore Ry. v. Pion, L. R. 14 .... No line could be fixed beyond A PP- Cas - 612 - which it could be declared that the 6 Supra, sec. 698. 788 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 726 no authority for the contrary proposition, and I see no sound prin- ciple upon which the distinction between the two descriptions of natural streams can be supported. And it seems to me that cases have been decided which are strongly opposed to it. Why a ripa- 1 * rian proprietor on a tidal river should not possess all the peculiar advantages which the position of his property with relation to the river affords him, provided they occasion no obstruction to the navi- : gation, I am unable to comprehend." Lord Cairns, Chancellor, * said: "But the doctrine would be a serious and alarming one, that a riparian owner on a public river, and even on a tidal public river, had none of the ordinary rights of a riparian owner, as such, to _preserve the stream in its natural condition for all the usual purposes of the land." The California court has said: "We see no occasion to discuss the question as to whether the river is^ navigable or not. In either event the result would be the same. The riparian owner on a nontidal, navigable stream has all the rights of a riparian owner not inconsistent with the public easement." 7 And has also up- held an appropriation upon a navigable stream. 8 In a Texas case : "As to all streams, whether navigable or otherwise, the right exists to the use of the water for domestic purposes, etc." "The riparian rights of the owner of lands on a navigable stream do not depend upon his ownership, of the soil to the center of the stream. It is therefore immaterial to the existence of the right in this State that the State has refused to extend grants across streams thirty feet in width, and has required the grant to stop at the margin of such streams. " Adding that the right is subordinate to the public easement of navigation. 10 The Texas case went to the Texas su- preme court n where the proprietor's right was not only upheld, but the former case was reversed for holding that his use could be de- stroyed without compensation in the improvement of navigation. 7 Heilbron v. Fowler etc. Co., 75 469, 22 L. E. A., N. S., 641 ; Spokane Cal. 426, 7 Am. St. Eep. 185, 17 Pac. Co. v. Arthur Jones Co., 53 Wash. 37, 535. 101 Pac. 515; Lux v. Haggin, 69 Cal. 8 Supra, sec. 339. 255, at 387, 10 Pac. 674; Williams v. 9 Citing Scranton v. Wheeler, 179 Fulmer, 151 Pa. 405, 31 Am. St. Eep. U. S. 141, 21 Sup. Ct. Eep. 48, 45 L. 767, 25 Atl. 103. In Nebraska it has Ed. 126 ; Gould on Waters, p. 275. been doubted whether the riparian 10 Bingham Bros. v. Port Arthur right of use exists on navigable etc. Co. (Tex. Civ. App.), 91 S. W. streams. Crawford v. Hathaway, 67 848, 100 Tex. 192, 97 S. W. 686, 13 Neb. 325, 108 Am. St. Eep. 647, 93 L. E. A., N. S., 656. See, also, Ka- N. W. 781, 60 L. E. A. 889. lama Co. v. Kalama Co., 48 Wash. n 100 Tex. 192, 97 S. W. 686, 13 622, 125 Am. St. Eep. 948, 94 Pac. L. B. A., N. S., 656. 727,728 Ch. 31. WHAT PERSONS AND WHAT WATEES. (3d ed.) 789 Some further presentation of the law of navigable streams is given elsewhere. 12 (3d ed.) 727. Interstate Streams. Upon streams flowing from a State recognizing riparian . rights into one denying them, the riparian right has been upheld in favor of proprietors in the former State. 13 (3d ed.) 728. Standing Water Lakes Ponds. 14 In the House of Lords 15 the Chancellor le recently said of a dam built about a rock in a river: "The right to maintain that artificial addition to the rock may be assumed; but it does not follow that the addition to the rock has in any respect altered the legal relations of the par- ties and made what has been part of a running stream hitherto, less a running stream, or turned it into a pond, so that the water in- closed within that pond should become, not publici juris, but water with somewhat of a proprietary right." We refer to this because it implies that water in a pond is water with somewhat of a -proprietary right, depending upon different considerations than watercourses, for, as already discussed, the law of watercourses is based on the fundamental consideration that the corpus of the running water is not the subject of private owner- ship. If, then, the corpus of water in a pond (not running, but standing water) is property, the basis of the riparian right is gone, and the analogy is rather to the law of percolating water. However this may be, where the pond or lake has an inlet or outlet in a running stream, the lake is regarded as but a part of the watercourse, and governed by the law of watercourses and the riparian right of use exists thereon. 17 And it has now been settled in California that the rights of riparian owners on a lake do not differ from those on streams so far as concerns use of the water. In Turner v. James Canal Co. 18 it was said and held, per - 12 Supra, sec. 339; infra, see. 898. seems the point of view of the Eng- 13 See supra, sec. 340 et seq. lish case, supra, which case, further, 14 See, also, supra, sec. 346. so far as it speaks of a pond, prob- 15 White v. White, [1906] App. ably contemplated an artificial pond; Cas. 27. as to which see supra, sees. 32, 51 et 16 Lord Halsbury. seq. 17 Duckworth v. Watsonville etc. 18 155 Cal. 82, 132 Am. St. Rep. Co., 150 Cal. 520, 89 Pac. 338, dictum 59, 99 Pac. 520, 22 L. R. A., N. S., only; City of Syracuse v. Stacey, 169 401, 17 Ann. Cas. 823. N. Y. 231, 62 N. E. 354. Such, also, 790 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 728 Mr. Justice Shaw: "No authority is cited in favor of the proposi- tion that riparian rights exist only in flowing streams. After a somewhat exhaustive search we have not succeeded in finding any decision to that effect. That such rights exist in any body of water, whether flowing or not, is shown by the following quotations from decisions of other States. 19 .... Many of these decisions relate to rights in the water other than the use of it for irrigation, but the context shows that the principle was considered a general one applicable to riparian rights of every description. . The plain- tiffs seek to found a distinction upon the assumed fact that the waters of a pond or lake have no source of supply, and that if the riparian owner takes water therefrom, the water of such lake or pond will ultimately become exhausted. It is a mistake to suppose that a permanent pond or lake has no source of supply. There is a constant drain upon such a body of water by evaporation into the air and sometimes by seepage into the surrounding soil. If there were no supply, the lake or pond would soon cease to exist. But even in a case of a pond or lake caused by an overflow, which has no other source of supply, and which by reason of seepage and evaporation will soon disappear, we think it must be conceded that the riparian owners have a right to the reasonable use of the water both for domestic purposes and for irrigation of the adjacent land. If such right does not exist, the water would disappear without ad- vantage to anyone, whereas by the use thereof it might be made of great benefit to the adjoining owners. We can see no reason why the law should declare that in such a case all of the adjacent 19 Citing 1 Farnham on Waters, 56, 19 Atl. 93, 7 L. E. A. 459 ; Draper sec. 62, p. 278; see. 63, pp. 280, 282; v. Brown, 115 Wis. 366, 91 N. W. Turner v. Holland, 65 Mich. 466, 33 1001; Delaplaine v. Chicago etc. Co., N. W. 283; Lamprey v. State, 52 42 Wis. 214, 24 Am. Eep. 399; Bas- Minn. 181, 38 Am. St. Eep. 541, 53 sett v. Salisbury Co., 43 N. H. 578, N. W. 1139, 18 L. E. A. 670; Hardin 82 Am. Dec. 179. In addition td v. Jardin, 140 U. S. 371, 11 Sup. Ct. these, reference may be made also to Eep. 808, 838, 35 L. Ed. 428 ; Finley Auburn v. Water Co., 90 Me. 586, 587, v. Hershey, 41 Iowa, 393; Eobinson 38 Atl. 561, 38 L. E. A. 188; Madson v. Davis, 47 App. Div. 405, 62 J.N. Y. T. Spokane Valley L. & W. Co., 40 Supp. 444; Lembeck v. Nye, 47 Ohio Wash. 414, 82 Pac. 719, 6 L. E. A., St. 354, 21 Am. St. Eep. 828, 24 N. N. S., 257; Kalez v. Spokane etc. Co., E. 686, 8 L. E. A. 578 (domestic and 42 Wash. 43, 84 Pac. 395; People v. agricultural uses) ; Priewe v. Wiscon- Hulbert, 131 Mich. 156, 91 N. W. 211, sin, 93 Wis. 546, 67 N. W. 918, 33 64 L. E. A. 265; 18 Am. & Eng. L. E. A. 645 ; Cedar Lake H. Co. v. Ency. of Law, 135, 139. "The rights Cedar C. etc. Co., 79 Wis. 302, 48 N. of riparian owners upon lakes and W. 371; Valparaiso etc. Co. v. Dick- ponds are the same as upon other over, 17 Ind. App. 233, 46 N. E. 591 ; waters." Lewis on Eminent Domain, Fernald v. Knox Woolen Co., 82 Me. 2d ed., sec. 84e. 729 Ch. 31. WHAT PERSONS AND WHAT WATERS. (3d ed.) 791 owners of land must abstain from taking any of the water and thus allow it to remain uselessly in its position until the forces of nature remove it." And also in the same case: "There is no decision in this State upon the subject of the riparian rights of the owner of land upon a body of water not flowing. Nor is there anything in any of our decisions intimating that such rights do not exist." And held that, with the limitation of reasonable use, "the right to use water upon adjoining land, applies as well to the water of a lake, pond, slough or any natural body of water, by whatever name it may be called, as to a running stream. ' ' (3d ed.) 729. Percolating Water. The law of riparian rights does strictly not apply to percolating water, since there can be no ripa- rian proprietors where there is no watercourse or lake or pond or other body of water having banks. 20 Rights in percolating water are separately considered later. The word "riparian" has, how- ever, been recently used with reference to lands bearing diffused percolating water. 21 and the new California law of percolating water is very similar to the law of riparian rights on streams. 22 , 20 Morrison v. Officer, 48 Or. 569, the flow of the stream itself. In 87 Pac. 896. either case there is a natural supply 21 Cohen v. La Canada W. Co., 151 of water of which the lands by reason Cal. 680, 91 Pac. 584, 11 L. R. A., of their location .... have a nat- N. S., 752. ural advantage to the use of the 22 Infra, sees. 1090, 1104. "The waters. Lands are invariably pur- conditions in all cases are analogous chased in view of the benefits which as far as the natural supply of waters they may derive from being riparian is available for use upon the lands to a stream or overlying well-supplied concerned, whether the lands be ripa- strata of water, the right to the flow rian to the stream or overlying a or extraction of which is a part and common subterranean .stratum, or parcel of the land." Miller v. Bay whether the underlying strata are Cities W. Co., 157 Cal. 256, 107 Pac. connected and supplied directly from 115. 730-738. (Blank numbers.), 792 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 739 CHAPTER 32. LIMITATIONS ON USB BETWEEN RIPARIAN PROPRI- ETORS THEMSELVES FOR THEIR OWN LANDS. REASONABLE USB. A. CLASSIFICATION OP USES. 739. Equality of riparian owners. 740. Natural uses (Use to support life). 741. Origin of th term "natural uses." 742. Irrigation not within this class. 743. Artificial uses (Business uses). 744. Same. B. REASONABLE USB. 745. Reasonable use generally. 746. Reasonable use for power purposes. 747. Same In California. 748. Reasonable use for irrigation. 749. Same Turner v. James Canal Co. 749a. Same. 750. Reasonable use (Concluded). C. APPORTIONMENT. 5 751. Apportionment. 752. Apportionment is an equitable remedy. 753. Confined to the parties litigant. D. MISCELLANEOUS. 754. Manner of use. 755. Return of surplus. 756. Possibility for a Riparian Administrative System. 757-764. (Blank numbers.) A. CLASSIFICATION OF USES. (3d ed.) 739. Equality of Riparian Owners. Since nonriparian lands have no access to the stream, they are, so far as concerns the present chapter, excluded from the natural resource, and the present chap- ter refers only to riparian owners as between themselves ; physical conditions exclude all other lands from access to the stream in its natural position. The water in the stream belongs to no one it is not, and cannot be, while flowing in its natural course, the subject of ownership by anyone. 1 But each riparian owner has a right to the use of his own i Supra, sec. 2 et seq. 739 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 793 land, and since all riparian proprietors, by their nataral situation 1 in contact with the stream, have an equal right of access to the water, they have an equal right of use for their own lands, which no one of them may unreasonably violate. The waters of a stream are "a common supply, to which all who, by their natural situation, have access to it have a common right, and of which they may make a reasonable use upon the land so situated," and "all the parties having access to it would have the right to share reasonably in its use." 2 In a reasonable use of one's own land the damage to the 1 other is damnum absque injuria, but in excess, the damage is wrong- ful. There is a perfect equality of right among all the proprietors, said Justice Story. 3 It is a "common right" in the sense that the corpus of the water is the property of no one, and therefore "common" in the purely negative sense that all riparian owners are equally entitled to the benefits which it does or may give their own land; as it has been said^ * r TTiere is a linement out of which every man shall have a benefit." 4 A riparian proprietor on whose land a stream rises has no greater right than other riparian proprietors. 5 Nor has one who first used the water. 6 The rights of the riparian pro- prietors are correlative, as contrasted with the exclusive right ob- tained by appropriation. "The property interest in the water is usufructuary, and his right thereto is subject to many limitations and restrictions, and always depends upon its reasonableness when considered in connection with a like right as belonging to all other 2 Hudson v. Dailey, 156 Cal. 617, rian proprietors are tenants in com- 105 Pac. 748. mon, for the law of tenancy in com- 3 Tyler v. Wilkinson, 4 Mason, 397, mon has no application. Senior v. Fed. Cas. No. 14,312. See, also, Anderson, 138 Cal. 716, at 723, 72 Thornton, J., in Anaheim W. Co. v. Pac. 349. See, however, Charnock T. Semi-Tropic W. Co., 64 Cal. 185. 196, Higuerra, 111 Cal. 473, 52 Am. St. 30 Pac. 623; Lone Tree Co. v. Cy- Rep. 195, 44 Pac. 171, 32 L. R. A. clone Co. (S. D.), 128 N. W. 596; 190; Pratt v. Lamson, 2 Allen Pugh v. Wheeler, 19 N. C. (2 Dev. & (Mass.), 289; Roberts v. Claremont B.) 50 (Ruffin, C. J.). "The theory Co., 74 N. H. 217, 24 Am. St. Rep. of the law of riparian rights in this 962, 66 Atl. 485. State is that the water of a stream 5 Barneich v. Mercy, 136 Cal. 206, belongs by a sort of common right, to 68 Pac. 589; Geddish v. Parrish, 1 the several riparian owners along the Wash. St. 587, 21 Pac. 314; Nielson stream, each being entitled to sever v. Sponer, 46 Wash. 14, 123 Am. St. his share for use on his riparian Rep. 910, 89 Pac. 155; Dudden v. land." Mr. Justice Shaw in Anaheim Clutton Union (1857), 1 H. &. N. W. Co. v. Fuller, 150 Cal. 327, 88 627; Bunting v. Hicks (1894), 70 L. Pac. 978. T. 455; Mostyn v. Atherton (1899), 4 Crew, C. J., in Shury v. Pigott, 2 Ch. 361. Poph. 169, 79 Eng. Reprint, 1263. 6 Supra, sec. 670. It is erroneous to say that the ripa- 794 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAKIAN RIGHTS. 739 riparian proprietors. His use must be ^reasonable, whatever may be its purpose ; and he may not, under any circumstances, by his use, materially damage other proprietors, either above or below him." 7 The classical statement of this equality of right among riparian owners is. that made by Justice Story in Tyler v. Wilkinson. 8 Each proprietor, he says, has an equal right to the advantage of the flow of the stream. ' ' But, strictly speaking, he has no property in the water itself, but a simple use of it while it passes along. The consequence of this principle is, that no proprietor has a right to use the water to the prejudice of another This is the nec- essary result of the perfect equality of right among all the pro- prietors of that- which is common to all. The natural stream ex^~ isting by the bounty of Providence for the benefit of the land through which it flows is an incident annexed by operation of law to the land itself. When I speak of this common right, I do not mean to be understood as holding the doctrine that there can be no diminution whatsoever by a riparian proprietor in the use of the water as it flows, for that would be to deny any valuable use of it. There may be, and there must be, allowed to all, of that which is common, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water, perfectly consistent with the com- mon right. The diminution, retardation, or acceleration, not/posi- tively and sensibly injurious, by diminishing the value of the com- mon right, is an implied element in the right of using the stream at all. 9 The law here, as in many other cases, acts with reasonable reference to the public convenience and general good, and is not betrayed into narrow strictures subversive of common sense, nor into an extravagant looseness which would destroy private rights. The maxim is applied, sic utere tuo ut alienum non laedas." The attitude of the passage is summed up in the closing sen- tences. 7 Crawford v. Hathaway, 67 Neb. 8 4 Mason, 397, Fed. Cas. No. 325, 108 Am. St. Rep. 647, 93 N. W. 14,312. Italics ours. 781, 60 L. R. A. 889. Citing Union 9 Note that he does not Sa 7 " sen ' ,,.,, _ o -rv /o sibly diminishing the flow"; he is ex- Mill & Mining Co. v. Dangberg (C. pr j gly denyin / that / and ' says sen . C.), 81 Fed. 73; Williamson v. Lock's s ib]y diminishing the value of the Creek Canal Co., 78 N. C. 156. common right." Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 795 What is such unreasonable interference has become defined by re- peated decision of particular cases, crystallizing into some rules. The chief classification is between natural uses and artificial uses. 10 (3d ed.) 740. Natural Uses (Use to Support Life). 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. 11 10 Wiggins v. Muscupiabe etc. Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. R. A. 667; Lux v. Haggin, 69 Cal. 255, at 408, 10 Pac. 74; Lone Tree Co. v. Cyclone Co. (S. D.), 128 N. W. 596; Lawrie v. Silsby, 82 Vt. 505, 74 Atl. 94. Lord Macnaghten, in McCartney v. Londonderry Railway, [1904] App. Cas. 301, said: "There are, it seems to me, three ways in which a person whose lands are intersected or bounded by a running stream may use the water to which the situation of his property gives him access." These ways, he says, are: First, primary uses for which he may take the whole stream ; second, other uses connected with or incident to his land with regard to which his use is limited; and third, uses foreign to his land as to which he has no right at all. 11 California. Lux v. Haggin, 69 Cal. 255, at 395 and 407, 10 Pac. 674; Crandall v. Woods, 8 Cal. 138, I Morr. Min. Rep. 604; Bear River Co. v. York Co., 8 Cal. 333, 68 Am. Dec. 325, 4 Morr. Min. Rep. 526; Ferrea v. Knipe, 28 Cal. 340, 87 Am. Dec. 128; Hale v. McLea, 53 Cal. 578; Swift v. Goodrich, 70 Cal. 103, II Pac. 561; Stanford v. Felt, 71 Cal. 249, 16 Pac. 900; 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 ; Chau- vet v. Hill, 93 Cal. 407, 28 Pac. 1066; Wiggins v. Muscupiabe 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; Temple, J., in Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236; Duckworth v. Watsonville etc. Co., 150 Cal. 520, 89 Pae. 338. Colorado. Broadmoor etc. Co. v. Brookside etc. Co., 24 Colo. 541, 52 Pac. 792 (dictum only, as the law of riparian rights is not enforced in this State. Supra, sec. 118). Nebraska Crawford Co. v. Hath- away, 67 Neb. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889. Oregon. Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 3.02 PJUC. 728. Texas. Rhodes v. Whitehead, 27 Tex. 304, 310, 84 Am. Dec. 631; Baker v. Brown, 55 Tex. 377; Bar- rett v. Metcalfe, 12 Tex. Civ. App. 247, 33 S. W. 759. Washington. Nielson v. Sponer, 46 Wash. 14, 123 Am. St. Rep. 910, 89 Pac. 155; McEvoy v. Taylor (1909), 56 Wash. 357, 105 Pac. 851. Miscellaneous. Union Min. Co. . v. Dangberg, 81 Fed. 73 ; Evans v. Mer- riweather, 3 Scam. (111.), 496, 38 Am. Dec. 106; Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391; Penn- sylvania Ry. Co. v. Miller, 112 Pa. 41, 3 Atl. 780; Clark v. Pennsylvania Ry., 145 Pa. 438, 27 Am. St. Rep. 710, 22 Atl. 990; Anderson v. Cin- cinnati L. Ry., 86 Ky. 44, 9 Am. St. Rep. 263, 5 S. W. 49 ; Young v. Barn- kier etc. Co. (H. of L.), [1893] App. Cas. 691; Slack v. Marsh, 11 Phila. 543; Hopper v. Hopper, 146 Pa. 365; 23 Atl. 321; Lawrie v. Silsby (1909), 82 Vt. 505, 74 Att. 94; Spence v. McDonough, 77 Iowa, 460, 42 N. W. 371; Anderson v. Cincinnati Ry., 86 Ky. 44, 9 Am. St. Rep. 263, 5 S. W. 49; Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504; Chatfield v. Wilson, 31 Vt. 358 ; McElvoy v. Goble. ' 6 Ohio St. 187; Union etc. Co. v. Fer- ris, 2 Saw. 176, Fed. Cas. No. 14,371, 796 (3d ed.) Pt. IV. THE COMMON LAW OF EIPABIAN EIGHTS. 740 Some quotations may be given to this effect. In a very early California case 12 it was said : ' ' The use of the water of a stream for domestic purposes and for watering cattle necessarily diminishes the volume of the stream. This is unavoidable, and though, by reason of such diminution, a proprietor on the stream below fails to receive a supply commensurate with his wants,, he is without remedy." 13 In Lux v. Haggin it is said: "So far as the question may be supposed to imply that an upper proprietor may not 'es- sentially' diminish the water by using it for domestic purposes, and for watering cattle, the weight of authority is that he may, if neces- sary, consume all the water of the stream for those purposes. Such is the California rule. Indeed, in case of a small rivulet, the nec- essary consequences of using it at all, by one or more upper owners, for these 'natural' or 'primary' purposes, must often be to exhaust the water." 14 In another California case: "It appears to be law that where all the water of a stream is needed for domestic pur- poses and for watering cattle and is thus consumed by one pro- prietor, the law allows such use. " 15 In a Texas case : " A lower proprietor cannot complain that one above uses the water of a stream for ordinary purposes, even though the water is thus ex- hausted. " 16 The leading expression is in a well-known English case: "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land ; for instance, to the reason- able use of the water for his domestic purposes and for his cattle, 8 Morr. Min. Eep. 90; People v. Hul- the following passage from a Mary- bert, 131 Mich. 156, 100 Am. St. Eep. land decision is quoted with ap- 588, 91 N. W. 211, 64 L. E. A. 265; proval: "We must confess that the Hazeltine v. Case, 46 Wis. 391, 32 right of a man to cultivate his own Am. Eep. 715, 1 N. W. 66; Pomeroy fields, and to pasture his cattle on his on Eiparian Eights, sees. 129, 134; own land, is of an original and pri- 30 Am. & Eng. Ency. of Law, 2d mary character, and that it would be ed., (b) pp. 358, 359, note 1. oppressive to interfere with the free 12 It was laid down also in still exercise of it, except under a neces- earlier cases cited supra. sity caused by grave public consider- 13 Ferrea v. Knipe, 28 Cal. 341, 87 ations. The washings from culti- Am. Dec. 128. vated fields might, and probably 14 Lux v. Haggin, 69 Cal. 255, 10 would, carry soil and manure into Pac. 674. streams of water, and make them 15 Stanford v.'Felt, 71 Cal. 249, at muddy and impure; and so the habits 251, 16 Pac. 900. As to this opinion, of cattle, according to their natural see Wiggins v. Muscupiabe Co., 113 instincts, would lead them to stand Cal. 189, 54 Am. St. Eep. 337, 45 in the water and befoul the stream; Pac. 160, 32 L. E. A. 667. but, nevertheless, the owners of the 16 Barrett v. Metcalf, 12 Tex. Civ. land must not lose the beneficial use App. 247, 33 S. W. 759. In a Wash- of it." Helfrich v. Cantonsville etc. ington case (McEvoy v. Taylor Co., 74 Md. 269, 28 Am. St. Eep. 245, (1909), 56 Wash. 357, 105 Pac. 851), 22 Atl. 72 ; 13 L. E. A. 117 (adding 740 Ch. 32. SEASONABLE RIPARIAN USE. (3d ed.) 797 and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream." 1T The civil law also gave a preference to domestic uses. 18 Where a stream is small and does not furnish water more than sufficient to supply the natural wants of the different proprietors living on it, it has been held that none of the proprietors is en- titled to use the water for manufacturing purposes, 19 nor for irriga- tion. 20 Nevertheless it may be a question whether the preference of "natural uses" can be invoked by a lower against an upper use for "artificial" purposes, such as irrigation, or whether it is one which only upper owners can invoke against those below; in other words, whether it is an advantage of natural position enabling the physical taking of the water for these uses against those below, or whether it will be enforced also by injunction against those above. 21 that he must not wantonly or reck- lessly harass lower users). n Miner v. Gilraour (1858), 12 Moore P. C. 131, 14 Eng. Reprint, 861, approved recently in White v. White, [1906] App. Cas. 72. In an- other English case it is said: "As to riparian proprietors there is no ques- tion, I think, about the law upon th"e subject .... that a riparian proprietor has the paramount right to take what water he likes from the river for usual domestic purposes. I do not say how widely the term 'do- mestic purposes' may extend. Un- questionably it would extend to culin- ary purposes and to purposes of cleansing, washing, the feeding and supplying of an ordinary quantity of cattle, and so on." Lord Romilly, in Attorney General v. Great Eastern Ry. Co., 23 L. T., N. S., 344, affirmed L. R. 6 Ch. 572. It could not be said to have taken actual shape in the English common law until Miner v. Gilmour, supra, decided in 1858, concerning which it has been said: "This distinction be- tween the ordinary and extraordinary use of water appears for the first time in the judgment of Lord Kings- down in the above-cited case of Miner v. Gilmour, and no authority is there cited for it. It seems never to have been acted upon in any reported case, but it has been so consistently ap- proved in subsequent judicial dicta that it may be taken to have ob- tained a secure place in the law." Salmond on Torts, p. 259. In Amer- ica, however, it had been recognized earlier. Thus it ia given by Gib- son, C. J., in an early Pennsylvania case (Mayor v. Commissioners of Snring Garden, quoted supra, sec. 4), wuere it is expressly based on civil- law authorities. Angell on Water- courses, section 121, says the distinc- tion of natural uses originated in the Illinois case of Evans v. Merri- weather, 3 Scam. 496, 38 Am. Dec. 106, decided in 1842 ; but it seems more probable that .Lord. Kingsdown took it from the civil law and cer- tain early common-law expressions be- low noted. See Lux v. Haggin, 69 Cal. 406, 10 Pac. 674, regarding the Illinois case. 18 Vinnius says, "Aqua profluens ad lavandum et potandum unicuique jure naturali eoncessa" ; and Grotius says, "At idem flumen, qua aqua pr> fluens vocatur, commune mansit, nimi- rum ut bibi hauririque possit." Gro- tius, lib. II, cap. II, sec. XII. 19 Evans v. Merriweather, 4 111. (3 ScamO 492, 38 Am. Dec. 106; Lawrie v. Silsby (1909). 82 Vt. 505, 74 Atl. 94. 20 Baker v. Brown (1881), 55 Tex. 377; Gould on Waters, sec. 205; Black's Pomeroy on Water Rights, sec. 140 ; Union Min. Co. v. Dangberg, 81 Fed. 73; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. 21 Consider, for example, the opin- ion in Lone Tree Co. v. Cyclone Co. (S. D.), 128 N. W. 596. 798 (3d ed.) Pt. IV. THE COMMON LAW OP EIPARIAN EIGHTS. 741 Instances of what have been held within the term "domestic uses" are given in the note. 22 The term is not confined to uses known when riparian rights began. 23 The preference has strong application in the law of pollution any pollution for an "artificial" use, such as mining, which impairs domestic use, is absolutely prohibited. 24 (3d ed.) 741. Origin of the Term "Natural Uses." The term "nat- ural uses" is probably based on the idea running through other branches of the common law, that there is such a thing as an " ordi- nary" or "natural" or elemental use of land; a use, so to speak, for which nature intended it, in contrast with other uses to which land is put. If, in using the land in the natural or ordinary way, damage follows to a neighbor, it is not wrongful at law; it is damnum absque injuria. The damage lies where nature makes it 22 See Kimball v. Northeast Har- bor Co. (Me.), 78 Atl. 865. The Eng- lish cases below cited were usually de- cided in reference to the construction of the term "domestic use" in certain English statutes, and not specifically in the present connection. Watering a garden, and irrigation on a small extent to supply produce for family consumption on the land. Bristol W. 'Co. v. Uren, 15 Q. B. D. 637, 52 L. T. 655; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728 (but not, to-day, irriga- tion on a commercial scale. Hough v. Porter, supra. See, also, infra, sec. 742). Brewing for family use; washing of carriages (Wilts etc. Canal v. S win- don W. Co., El., Bl. & El. 176; Holmes' Notes to 3 Kent's Commen- taries, 14th ed., p. 688) ; or washing a motor car. (Harrogate Corpora- tion v. Mackay (1907), 2 K. B. 611.) Supply for a "boarding-school (Fred- erick v. Bognor W. Co. (1908), 78 L. J. Ch. 40, 72 J. P. 501, 25 T. L. R. 31) ; but not for large asylums (infra, see. 743 et seq.). Keeping hogs in a yard upon a small running stream, though the hogs so be- foul the water that the lower proprietor could not use the water for culinary purposes. Hazeltine v. Case, 46 Wis. 391, 32 Am. Rep. 715, 1 N. W. 66. Sed gu. The purposes for which natural uses may be claimed have been ex- tended in Scotch cases to include "the supplying a cistern for malting eight bolls of barley in a barn"; that is to say, to include brewing for domestic use (Johnstone v. Ritchie (1822), 1 S. 327 (304) Scotch), but the at- tempt to stretch them to legitimize a pipe for the supply of a distillery re- ceived no countenance and was aban- doned. (Ogilvy v. Kincaid (1791), Baron Hume's Report (Scotch), Dec. 508.) It would appear that they do not include the supply of water- closets, but in a Scotch case where views to this effect were indicated, the circumstances were special, says Ferguson on The Law of Water in Scotland, p. 239. 23 "The meaning of the rule is i this if the stream be shrunk to so slender a thread, that there is only a glass of water, the riparian pro- \ prietor may take it all This water is used for domestic purposes. The moment you come to" using any- J \ thing for trade,, you are on new[| ground. But assuming objects'~^of" domestic use, you are not confined to / those which were known at the time / when riparian rights commenced." Lord Norbury v. Kitchin. 9 Jur., N. S., 132. See, also, Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. 24 Supra, sec. 523, pollution. 741 Ch. 32. REASONABLE EIPAEIAN USE. (3d ed.) 799 fall. What is such a natural use of land was examined in the well-known case of Rylands v. Fletcher, 25 arriving at the conclusion that building a reservoir on it was not a natural use, and damage to another resulting from a break and escape of the water cannot be defended, it was held. Lord Cairns, Chancellor, said that "if, in what I may term the natural user of that land," damage had "by the operation of the laws of nature" happened to a neighbor, the neighbor could not have complained that that result had taken place. "On the other hand, if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use," then the neighbor could complain of the damage. 1 The same seems the origin of the term "natural uses" in the use of waters. Living upon the land is a "natural" use of it, and a use of the water for the necessities of life of those living there is a taking for a natural use of the land in which case damage following to lower proprietors will not be regarded. "Besides, everything, as it serveth more immediately or more merely for the food and use of man (as shall be said here- after) hath the precedent dignity before any others," says Lord Coke 2 with regard to waters. And another old authority says: "It is also a thing of necessity for the watering of cattle." 3 So, though the whole stream be consumed for drinking or household use or watering domestic animals, it is damnum absque injuria be- cause done in the natural use of the land. It is the same idea as that in Mr. Justice Temple's opinion in Katz v. Walkinshaw, 4 concerning percolating water, limiting the cases where the percolat- ing water may be taken to the damage of a neighbor to those cases where the taking is for the purpose of the ordinary use of the land of the taker. It deals with the fitness of purpose of the party causing the damage, and regards, proper purpose in justification or excuse for the damage so that it becomes damnum absque in- juria. 5 25 L. E. 3 H. L. 330. 2 Coke on Littleton, lib. 1, cap. 1, l This classification of uses (and sees. 1, 4a. Lord Cairns' opinion) is disapproved 3 Shury v. P'iggott, 3 Bulst. 339, in Brown v. Collins, 53 N. H. 442, 16 gi Eng. Eeprint, 280. Am. Rep. 372, saying that there are no uses that can be called "natural" 4 Jn P^ flM %A P a t 7 fi 7 T P ' any more than others. "Natural ^5, 70 Pac. 663, 74 Pac. 766, 64 L. rights are, in general, legal rights." See, also, Hurdman v. Railway *> See Fisher v. Feige (1902), 137 (1878), 3 C. P. D. 174; Ballard v. Cal. 42, 92 Am. St. Rep. 77, 69 Pac. Tomlinson (1885), 29 Ch. D. 115. 618, 59 L. E. A. 333. See infra, sec. See supra, sec. 709, natural right. 1119. 800 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN RIGHTS. 741 Whether or not this is the true origin of the classification into natural and artificial uses, it is coming now to be regarded that the distinction is a rule as to what is reasonable, not alone in its purpose (as the foregoing authorities say), but also in its degree of damage, as in the next section. For the support of life it will usually be found reasonable to disregard the degree of damage, and to take the whole stream, but it is coming to be regarded as not a hard-and-fast rule, if the facts of each case do not bear it out. 6 In Lux v. Haggin 7 it is said: "Even the use of water of a stream for potation may not be of paramount importance, when the stream is small, and the particular proprietor is amply supplied with water for such purpose by living springs independent of the creek; and it may happen, all the conditions being considered, that the exhaus- tion of an entire stream by large bands of cattle ought not to be permitted The distinction between natural and artificial 'wants' would be, under supposable conditions, somewhat fanciful." And in a Nebraska case 8 "This subject has been confused need- lessly by the unfortunate use of the words 'natural' and 'ordinary' in this connection to distinguish those uses which the common law does not attempt to limit, and 'artificial' or 'extraordinary' to designate those which are required to be exercised within reason- able bounds. . . The law does not regard the needs and de- s sires of the person taking the water solely to the exclusion of all other riparian proprietors, but looks rather to the natural effect of his use of the water upon the stream and the equal rights of others therein. The true distinction appears to lie between those modes of use which ordinarily involve the taking of small quanti- ties, and but little interference with the stream, such as drinking and other household purposes, and those which necessarily 'involve the taking or diversion of iarge_quantities and a considerable interfer- ence with its ordinary course and flow, such as manufacturing pur- poses. The purpose of the law is to secure equality in the use of the water by riparian owners, as near as may be, by requiring each to exercise his rights reasonably, and with due regard to the right of other riparian owners to apply the water to the same or to other purposes. This purpose is not subserved by any ar- bitrary classification." 9 6 Wiggins v. Muscupiabe etc. Co., Am. St. Rep. 697, 93 N. W. 715, 60 113 Cal. 182, 54 Am. St. Rep. 337, 45 L. R. A. 910. Pac. 160, 32 L. R. A. 667. To the same effect, Crawford v. 7 69 Cal. 255, 10 Pac. 674. Hathaway, 67 Neb. 325, 108 Am. St. 8 Meng v. Coffey, 67 Neb. 500, 108 Rep. 647, 93 N. W. 781, 60 L. R. A. 742 Ch. 32. SEASONABLE EIPARIAN USE. (3d ed.) 801 The modern tendency is thus to disregard the classification into natural and artificial uses, and to view all uses ("natural" uses included) not alone from the reasonableness of the purpose of the taker, but also, in all cases, from the reasonableness of the degree of damage from the taking or use, upon the complaining pro- prietors, as considered in the following sections. 10 (3d ed.) 742. Irrigation not Within This Class. There was at one time in the West an attempt to bring irrigation in the arid regions within the classification of "natural uses." But this was a mis- understanding of the application of that term, which was intended to classify the uses immediately necessary to sustain life. One case says: "At an early day there was a tendency to class irriga- tion among those uses of a stream which might be carried even to entire consumption of its waters. But another view has long pre- vailed, and is now well established, not only in the eastern por- tion of the country, but even in the arid and semi-arid States (so far as such States recognize the' common-law doctrine as to riparian rights), to the effect that irrigation is one of those uses which must be exercised reasonably with due regard to the rights of others. ' ' u And another : ' ' We do not think that irrigation, at least when conducted in the manner that this was, can constitute a use which will justify an upper riparian owner in taking all of the water, to the destruction of the ordinary domestic uses thereof by a riparian owner below, in the absence of prior legal appropriation." 12 [By "prior legal appropriation" is meant one 889. See, also, Rogers v. Overacker, citing Nesalhous v. Walker, 45 Wash. 4 Cal. App. 333, 87 Pac. 1107; Jones 621, 88 Pae. 1032; Smith v. Corbit, v. Conn, 39 Or. 30, 87 Am. St. Rep. 116 Cal. 587, 48 Pac. 725; Shotwell 634, 64 Pac. 855, 65 Pac. 1068, 54 v. Dodge, 8 Wash. 337, 36 Pac. 254; L. R. A. 630. Benton v. Johncox, 17 Wash. 277, 61 10 But a preference to domestic Am. St. Rep. 912, 49 Pac. 495, 39 uses is sometimes introduced in the L. R. A. 107; Union Mill Co. v. Fer- law of appropriation by statute. See ris, 2 Saw. (U. S.) 176, Fed. Cas. supra, sec. 308. No. 14,371, 8 Morr. Min. Rep. 90; 11 Meng v. Coffey, 67 Neb. 500, Howe v. Norman, 13 R. I. 488; Bros- 108 Am. St. Rep. 697, 93 N. W. 715, nan v. Harris, 39 Or. 148, 87 Am. 60 L. R. A. 910 (citing Low v. Schaf- St. Rep. 649, 65 Pac. 867, 54 L. R. fer, 24 Or. 239, 33 Pac. 678; Gillett A. 628; Ellis v. Tone, 58 Cal. 289; v. Johnson, 30 Conn. 180; Black's Harris v. Harrison, 93 Cal. 676, 29 Pomeroy on Water Rights, sec. 151; Pac. 325; Lord v. Meadville Water Gould on Waters, sees. 205, 217). Co., 135 Pa. '122, 20 Am. St. Rep. See, also, Lone Tree Co. v. Cyclone 864, 19 Atl. 1007, 8 L. R. A. 202; Co. (S. D.), 128 N. W. 596. Pomeroy on Water Rights, sec. 134; 12 Nielson v. Sponer, 46 Wash. 14, Gould on Waters, BCCS. 205, 536. 123 Am. St. Rep. 910, 89 Pac. 155, Water Bights 51 802 (3d ed.) Pt. IV. THE COMMON LAW OF RIPAEIAN RIGHTS. 742 on public land before the riparian land was settled upon by others.] 13 In a well-known case, 14 the respondents claimed that in a hot and arid climate, the use of water for irrigation was a natural want ; that the upper proprietors on the stream might consume all the water for the purpose of irrigating their land, and that such use would be reasonable. The court, in considering this question, said: "To lay down the arbitrary rule contended for by the de- fendant, and say that one proprietor on the stream has so unlimited a right to the use of the water for irrigation, seems to us an un- necessary destruction of the rights of other proprietors on the stream who have an equal need and an equal right. ' ' While, as the authorities below considered further show, it is the accepted rule in the West that irrigation is not within the "natural uses" in the sense that one owner may for that purpose wholly de- prive other owners of their water supply, yet the law of Texas forms an exception and has alone, of all the Western States, been built (in part) upon this ground. 15 Accordingly, it is the rule in Texas that under the law of riparian rights, in the arid dis- tricts of this State, the waters of all natural streams may be ap- propriated by an upper riparian owner for irrigation of land, to the exclusion of the use thereof by a lower riparian owner. 16 Pos- sibly it was this idea which induced the Nebraska legislature to de- clare water for irrigation a ' ' natural want, ' ' 17 though the rule is well settled now in Nebraska that no riparian proprietor is en- titled to more than a reasonable share of the water against other riparian owners for irrigation, if the case is one arising under the common law. 18 13 See supra, sec. 257, subsequent 330, 8 Morr. Min. Rep. 83. And an settler. English case suggested (now also dis- 14 Mining Co. v. Ferris, 2 Saw. 176, credited) that in manufacturing dis- 195, Fed. Cas. No. 14,371, 8 Morr. tricts, entire consumption for manufac- Min. Rep. 90. turing may come within the primary 15 Acting upon the suggestion in uses for which one riparian owner an Illinois case (Evans v. Merri- might deprive other manufacturers or weather (111.), 3 Seam. 492, 38 Am. riparian owners of their supply. Dec. 106) that in arid regions irri- (Brett, M. R., in Ormerod v. Todmor- gation by any one proprietor should den Mill Co. (1883), 11 Q. B. D. 168. be regarded as a natural use permit- dictum.) ting entire exhaustion of the stream i6 Supra, sec. 117; Barrett v. Met- by any one proprietor against all the calf, 12 Tex. Civ. App. 247, 33 S. others. There were also some early W. 758 ; Rhodes v. Whitehead, 27 New England cases (now discredited) Tex. 310, 84 Am. Dec. 631; Tolle v. to the same effect. Weston v. Allen Correth, 31 Tex. 365, 18 Am. Dec. (1811), 8 Mass. 136; Daniels et al. v. 540. But see Stacy v. Uelery (Tex. Daniels et al., 7 Mass. 136. Likewise Civ. App. 1909), 122 S. W. 300. Perkins v. Dow (Conn. 1739), 1 Root, " Neb. Comp. Stats. 6473. 535. But see Arnold v. Foot, 12 Wend. 18 Infra, sec. 748. 743 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 803 But, as already said, Texas stands alone in this. All other States that give anyone a larger share of a stream for irrigation than would be reasonable in comparison with the susceptibility of use by the land of other riparian proprietors entitled to an equal use, do so by avowedly departing from the common law, 19 and not by pretending to act under it. (3d ed.) 743. Artificial Uses (Business 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 improvement, trade or profit. These include fishing, bathing, boating, floatage. 20 diversion for irrigation, the running of machinery and all the many other varied purposes for which water can be used. The early common- law cases dealt, aside from domestic use or "natural uses," chiefly with use for mill or power purposes, 21 and this is just as permissible to-day in the West. 22 For these business uses the riparian owner can never jtake all to the exclusion of other riparian owners. 23 He can take only what is reasonable with due regard to the uses of others on the same stream. 24 While the law permitted damage from "natural uses," 19 Supra, sec. 118. 534, 4 Pac. 191; Gould v. Stafford, 20 See Pealer v. Gray's etc. Co. 7 Cal. 66, 18 Pac. 879; Alta e.tc. Co. (1909), 54 Wash. 415, 103 Pac. 451. v. Hancock, 85 Cal. 219, 20 Am. St. See, also, 16 Am, & Eng. Ann. Gas. Rep. 217, 24 Pac. 645; Harris v. 235, note. Harrison, 93 . Cal. 676, 29 Pac. 325. 21 E. g., Tyler v. Wilkinson, 4 24 Ibid.; and Lux v. Haggin, 69 Mason, 397, Fed. Cas. No. 14,312; Cal. 255, at 394, 397, 10 Pac. 674; Prentice v. Geiger, 74 N. Y. 341. Ferrea v. Knipe, 28 Cal. 344, 87 Am. 22 "The 'objection that the petition Dec. 128; Hale v. McLea, 53 Cal. does not sufficiently allege a reason- 578; Stanford v. Felt, 71 Cal. 249, able use by plaintiff can be upheld 16 Pac. 900; Heilbron v. Land and only on the theory that no other use Water Co., 80 Cal. 189, 22 Pac. 62 is reasonable that interferes with ir- (must be reasonable). See Stenger rigation. The right and reasonable- v. Tharp, 17 8. D. 13, 94 N. W. 402; ness of use of water-power to propel Morris v. Bean (Mont.), 146 Fed. a flouring-mill by a riparian owner 431; Union Min. Co. v. Ferris, 2 Saw. needs no justification. It has been 176, Fed. Cas. No. 14,371, 8 Morr. practiced and protected ever since Min. Rep. 90; Same v. Dangberg, 2 English law began." Cline v. Stock, Saw. 450, Fed. Cas. No. 14,370, 8 71 Neb. 70, 98 N. W. 456, 102 N. W. Morr. Min. Rep. 113; Swift v. Good- 265. See Stanford v. Felt, 71 Cal. rich, 70 Cal. 103, 11 Pac. 561; Gould 249, 250, 16 Pac. 900, dictum; Ka- v. Stafford, 77 Cal. 66, 18 Pac. 879; lams, Co. v. Kalama Co., 48 Wash. Durga v. Lincoln etc. Co., 47 Wash. 612 125 Am. St. Rep. 948, 94 Pac. 477, 92 Pac. 343; Turner v. James 469' 22 L. R. A., N. S., 641 ; Meatone Canal Co., 155 Cal. 82, 132 Am. St. Co v. Redlands Co., 155 Cal. 323, 100 Rep. 59, 99 Pac. 520, 22 L. R. A., Pac. 1082, 22 L. R. A., N. S., 382, N. S., 401, 17 Ann. Cas. 823 ; Hudson 17 Ann. Cas. 1222. See infra, sees. v. Pailey, 156 Cal. 617, 105 Pac. 748; 746, 747, 1081. Stacey v. Delery (Tex. Civ. App.), 23 Learned v. Tangeman, 65 Cal. 122 S. W. 300. 804 (3d ed.) Pt. IV. THE COMMON LAW OF RIPAEIAN EIGHTS. 743 regardless of degree of damage, for other uses it is damnum absque injuria only to a certain extent a question of decree in each case. What is a reasonable use is a question of fact to be decided in each case. 25 No one thing will determine how much water a riparian owner is entitled to take as against other riparian owners; it de- pends upon the whole evidence, and he is entitled to offer in evi- dence all pertinent facts which will enable the jury to conclude whether his use is reasonable or not. The decision must be made, "reference being had to the use required by the others." 1 The necessity of one proprietor, however pressing, is not the sole i!ic-;isure, though he took no more than necessary for his use; it must be in comparison with the necessities~ol the other owners. 2 The State owning riparian land cannot as riparian proprietor take water for thirteen hundred people in a penitentiary and insane asylum a quarter of a mile from the stream, 3 a case in which the test of " natural uses" must give way on the facts because unrea- sonable. Likewise the watering of large bands of cattle will not be allowed to the exclusion of other proprietors under the plea that the watering of cattle is a ' ' natural use. ' ' 4 An irrigation com- pany owning riparian land has not thereby any greater right than other riparian owners. 5 To point the rule, reference may t)e made to a New York case where it is said: "He may also construct ornamental ponds, and store them with fish, or use them for his geese, his ducks, or his swans, so long as the size of the ponds is not so large as to ma- terially diminish, by evaporation and absorption, the quantity of 25 See, also, Stanford v. Felt, 71 277, 52 Am. Eep. 763; Ulbrieht v. Cal. 249, 16 Pac. 900; Heilbron v. Enfaula W. Co., 86 Ala. 587, 11 Am. L. & W. Co., 80 Cal. 194, 22 Pac. 62; St. Eep. 72, 6 South. 78, 4 L. E. A. Meng v. Coffey, 67 Neb. 500, 108 Am. 572; Boyd v. Schreiver (Tex. Civ. St. Eep. 697, 93 N. W. 715, 60 L. E. App.), 116 S. W. 100. A. 910; Turner v. James Canal Co. i LUX v. Haggin, 69 Cal. 255, at (1909), 155 Cal. 82, 132 Am. St. 311 19 p ae . 674. S ep i 5 5' ft i"^ Pa A C ' 52 n' 22 o^ TT'- A " 'Verdugo W. Co. v. Verdugo N. S 401, 17 Ann Cas. 823 ; Union * Q3 pac <* etc. Co. v. Ferris, 2 Saw. 176, Fed. '\ n . ~ Pna TSTn 14371 8 Morr Min Ben 3 Salem etc. Co. v. Lord, 42 Or. S ? Union M. Co! v 8 Dt g ber^ 81 S 82, 69 Pac. 1033, 70 Pac. 832; Mc- 73; Stacey v. Delery (Tex. Civ. Cartney v. Londonderry Ey. [1904] App.), 122 S. W. 300; Bed Eiv. Co. A PP- Cas - 301 - v. Wright, 30 Minn. 249, 44 Am. 4 Lux v. Haggin, 69 Cal. 255, at Eep. 194, 15 N. W. 167; Billing v. 407, 10 Pac. 674. See 79 Am. Dec. Murray (1855), 6 Ind. 327, 63 Am. 642, note. Dec. 385; Wadsworth v. Tillotson, 5 State ex rel. Kettle Falls etc. Co. 15 Conn. 366, 39 Am. Dec. 391; v. Superior Court, 46 Wash. 500, 90 Lockwood Co. v. Lawrence, 77 Me. Pac. 653. .743 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 805 water usually flowing in the stream." 6 In the arid West at first sight this would be considered opposed to all ideas of reasonable- ness, and it is doubtful whether a court would uphold it against another riparian owner with whose irrigation it interferes. Yet it shows the view of the common law that each case must be con- sidered upon its own facts and its own surroundings. Where the stream is large and the duck-pond small, and the complaining riparian proprietor's irrigation not impaired, and all the evidence is of the same tenor, probably every common-law court West or East would protect the pond against what would then be but a willful injury. On the other hand, if the stream must be hoarded for irrigation the duck-pond would not be permitted to impair the use by the riparian irrigators, because, viewing the situation -as a whole, the proof would show it to be unreasonable under the entire evi- ' dence. "We feel that where water is so precious it should not be used for mere matters of taste and fancy [artificial ponds and foun- tains] , while those who need it for useful purposes go without. ' ' 7 There is a tendency in the common-law States of the West to ignore all uses but irrigation, and to disregard any right in a riparian proprietor against other riparian owners, where his land is incapable of being irrigated. 8 This is rather a rule of fact than of law, however. Upon a stream urgently required for irrigation, and so used by the custom of the community, any other use im- pairing irrigation is entitled to small consideration as matter of fact in determining ^hat is reasonable. Nevertheless, as a matter of law, all possible uses are entitled to some consideration in reaching a conclusion, and the fact that a riparian proprietor's lands are not irrigable is not conclusive that he is entitled to no water, since domestic use or a mill-power may be possible, or some other of the various purposes to which water is applicable. As a question of fact, the possibility of such use may be, and usually is, under the circumstances, entitled to little consideration in deciding what is reasonable, and the tendency undoubtedly is to pass it by where irrigation is in question. The usages and wants of the stream com- 6 Pierson v. Speyer, 178 N. Y. 270, the beautiful," the court says in Lux 102 Am. St. Rep. 499, 70 N. E. 799. v. Haggin, 69 Cal. 255, at 396, 10 Pac. 7 Los Angeles v. Pomeroy (1899), 674. See, also, infra, sec. 822. 124 Cal. 597, at 650. See, also, Ibid., 8 E. g., Southern Cal. Co. v. Wil- p. 640, 57 Pac. 585. So likewise the shire, 144 Cal. 68, at 71, 77 Pac. 767, law, "excludes, where water is reason- quoted infra; Montecito etc. Co. v. ably used above for irrigation, mere Santa Barbara, 151 Cal. 377, 90 Pac. sentiment" or that its flow "merely 935. pleases the eye or gratifies a taste for 806 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 744 munity as a whole form an important circumstance bearing upon what is reasonable in each case. 9 Correspondingly, where all but one proprietor on the stream use it for power, the exceptional proprietor would probably receive less consideration for his irriga- tion. (3d ed.) 744. Same. The principle is that the reasonable use to which each proprietor is entitled is the reasonable use of his land. As was said by Mr. Justice Temple in Katz v. Walkinshaw : 10 "Proprietary rights are limited by the common interests of others, that is, to a reasonable use, and such use one may make of his land, though it kijures others. This proposition is generally recognized. .... All rights in respect to water are peculiarly within its province." In the reasonable use of one's own land, the damage to the neighbor is damnum absque injuria. 11 We would state the following propositions with regard to per- mitted uses among riparian owners between themselves : A riparian proprietor may, for the support of life ("natural uses") on his riparian land, use the water to the damage of another riparian proprietor, such damage being damnum absque injuria, regardless of the degree of damage. He may also, for 'other useful purposes ("artificial uses") on and for the benefit of his riparian land, use the water to the dam- age of another riparian proprietor, but only to a reasonable degree of damage; such damage being damnum absque injuria only with regard to the degree of damage in consideration of the necessities and equal rights of both to enjoy their own land; any damage in excess of that reasonable degree (to be determined in each case) being wrongful. 9 Parker v. American etc. Co., 195 trolling circumstance in determining Mass. 591, 81 N. E. 468, 10 L. R. what is reasonable use by any one of A., N. S., 584; Carey v. Daniels them. Lawrie v. Silsby (1909), 82 (Mass. 1844), 8 Met. 420, 41 Am. Vt. 505, 74 Atl. 94. Dec. 532; Red River Co. v. Wright, 10 141 Cal. 116, at 144, 99 Am. St. 30 Minn. 249, 44 Am. Rep. 194, 15 Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 N. W. 167 ; Snow v. Persons, 28 Vt. L. R. A. 236. 463, 67 Am. Dee. 723; Dilling v. H "If his proper and reasonable Murray (1855), 6 Ind. 328, 63 Am. use causes damage to the lower Dee. 385. See St. Helen's Co. v. owner, such damage flowing from the Tipping (1865), 11 H. L. Cas. 642, proper use of a natural right is 11 Eng. Reprint, 1483 (smelter damnum absque injuria." McEvoy v. fumes). Uses to which community Taylor (1909), 56 Wash. 357, 105 applies the stream (in this case solely Pac. 851. domestic use) form an almost con- 745 Ch. 32. EEASONABLE RIPARIAN USE. (3d ed.) 807 Where his use is to no possible damage of another, we refer to a following chapter. 12 B, REASONABLE USE. (3d ed.) 745. Reasonable Use Generally. As there has been so much misrepresentation as to the rights of riparian proprietors inter se, we here quote at large from decisions throughout the English and Eastern jurisdictions showing that the test of reasonableness every- where is the governing principle among riparian proprietors be- tween themselves ; and that what is reasonable is a question of fact, depending upon all the evidence which may be adduced, showing the characteristic circumstances and conditions surrounding the parties and their lands and the stream; the final decision resting upon the best judgment of the jury (or the court sitting without one) , passing upon each controversy as it arises. In a recent California case it is said: "The defendant was en- titled only to a reasonable use of the waters of all parts of the stream including the spring; the part of the judgment complained of gives him more than this and is wrong. " 13 In a late Washing- ton case: "The parties being riparian owners, their respective rights to the use of the water are to be determined by their rights as such riparian owners. These rights are now well established. Each riparian owner is entitled to a reasonable use of the waters as an incident to his ownership, and, as all owners upon the same stream have the same right of reasonable use, the use of each must be consistent with the rights of others, and the right of each is qualified by the rights of others. ' ' u The law of England has been very recently summed up as follows (referring to irrigation inter alia) : "If a lower proprietor has a right to the free flow of the water without diminution or alteration, a right to consume the water before it reaches him is apparently irreconcilable with it; but such inconsistencies are to be met with in all natural rights, and the law reconciles them by holding that 12 Infra, sees. 795 et seq., 819 et American law it is, on the one hand, seq. to permit a reasonable use of land That reasonable use of one's own by all, and, on the other, to prohibit land will excuse damage to a neigh- an excessive use by any. bor is also the American law of per- 13 Gutierrez v. Wege, 145 Cal. 734, colating water; is becoming so re- 79 Pac. 449. garding surface water; and is gen- i 4 McEvoy v. Taylor (1909), 56 erally also the law of extrahazardous Wash. 357, 105 Pac. 851. Affirmed uses, contra to Rylands v. Fletcher. in City of Aberdeen v. Lytle etc. Co. The spirit of the English law is now (Wash.), 108 Pac. 945. to leave the parties alone; of the 808 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN EIGHTS. 745 each is only to be enjoyed reasonably, that they are not absolute rights without limit, but that they are rights modified by all the rights of others. ' ' 15 Chancellor Kent said : ' ' Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel where it leaves his estate." 16 Chief Justice Shaw, in Massachusetts, said: "The right to flowing water is now well settled to be a right incident to property in land ; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it as it passes through his land ; and so long as it is not wholly obstructed or di- verted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down. . What is such a just and reasonable use may often be a difficult question depending on various circumstances. ' ' 17 And a recent case in the same court declares: "This is a common right, and each must exercise it with due regard to the rights of others, and each must submit to that degree of inconvenience and hardship in the exercise of his rights which results from the existence of like rights in others. In such cases each proprietor is entitled to use the stream in such reasonable manner, according to the usages and wants of the community, as will not be inconsistent with a like use by other proprietors above or below him." 18 In Maine it was said: "The right of property is in the right to use the flow, and not in the specific water," and "reasonable use is the touchstone for determining the rights of the respective parties." 19 In a Pennsylvania case: "Each proprietor may make any reasonable use of the water upon his premises; he may diminish the quantity, but the use must be a reasonable one. ' ' 20 15 14 Ency. of Laws of Eng., 606, 17 Elliott v. Fitchburg By., 10 607, article "Watercourse," by J. L. Gush. 193, 57 Am. Dec. 85. Italics Goddard, author of Goddard on Ease- ours, ments. 18 p ar k er v . American etc. Co., 195 18 3 Kent's Commentaries, sec. 439. Mass. 591, 81 N. E. 468, 10 L. R. A., This is so similar to the Code Napo- N g 534. leon (quoted supra, sec. 685) as to ' 19 ' L ' Clifford 54 Me 487 indicate that it might have been cop- Q9 A 7 I' R1 ' 6- ' -i , n f* Am. Dec. 561. led therefrom, especially in view of the fact that Chancellor Kent's famil- 20 Charge of trial court affirmed, iarity with the civil law has been said Brown v. Kistler, 190 Pa. 499, 42 by himself to be one of the chief Atl. 885. reasons for the authoritative position See, likewise, Wadsworth v. Tillot- of Ms commentaries. son, 15 Conn. 366, 39 Am. Dec. 391. 746 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 809 These are general expressions, and are given to show that "rea- sonable use is the touchstone for determining the rights" of ripa- rian owners among themselves, not only in California but throughout the common law, and that the statements sometimes made that the enforcement of this rule in California was a departure from the common law are unwarranted and a misrepresentation of the com- mon law. 20 * (3d e<3.) 746. Reasonable Use for Power Purposes. As the question of reasonable use is one of fact in each case depending upon the cir- cumstances, what is reasonable upon a mill stream will be different as a fact from what is reasonable upon an irrigation stream. The circumstances chiefly to be considered where use for power preponderates among the riparian owners are found chiefly in the Eastern cases, where mill use is the dominating use. Thus, in an early Massachusetts case the learned judge already quoted said in another case, 21 applying this to mill use: "It is, therefore, held that each proprietor is entitled to such use of the stream so far as it is reasonable, conformable to the usages and wants of the comr munity, and having regard to the progress of improvement in hydraulic works, and not inconsistent with a like reasonable use by the other proprietors of land on the same stream above .and below. " 22 And still again in another case the same eminent author- ity laid down the law for power use as follows: "What is a rea- sonable use must depend on circumstances, such as the width and depth of the bed, the volume of water, the fall, previous usage, and the state of improvement in manufactures and the useful arts." [Defendant detained the entire flow long enough to fill a mill pond, causing a shut-down of plaintiff's mill for two days in June and four days in July.] "The court are of opinion that this was not an unreasonable use of the watercourse by the defendants, and that any loss which the plaintiff temporarily sustained by it, was damnum absque injuria." ^ In Wisconsin : "What constitutes rea- 20a Supra, sec. 673. ^ Shaw, C. J., in Pitts v. Lan- 21 Chief Justice Shaw in Carey v. caste r Mills, 54 Mass. (13 Met.) 156. Daniels (1844), 8 Met. 470, ~*T~~' Eiparian owner may dam stream to Dec. 532. Italics ours. 22 Subject to a modification in a reasonable extent for water-power, favor of prior occupancy of millsite Corse v. Dexter (1909), 202 Mass, backing water under the special 3^ 88 N. E. 332. Massachusetts Mill Acts. 810 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 747 sonable use," says the court in a power case, "depends upon the circumstances of each particular case ; and that no positive rule of law can be laid down to define and regulate such use with entire precision, is the language of all the authorities upon the subject. In determining this question, regard must be had to the subject matter of the use, the occasion and manner of its application, its object, extent and the necessity for it, to the previous usage, and to the nature and condition of the improvements upon the stream; and so, also, the size of the stream, the fall of water, its volume, velocity, and prospective rise and fall, are important elements to be considered. " 24 In Minnesota the court declares i 25 "In de- termining what is a reasonable use, regard must be had to the sub- ject matter of the use, the occasion and manner of its application ; the object, extent, necessity and duration of the use; the nature and size of the stream; the kind of business to which it is sub- servient; the importance and necessity of the use claimed by one party, and extent of the injury to the other party ; the state of im- provement of the country in regard to mills and machinery, and the use of water as a propelling power, the general and established usages of the country in similar cases; and all the other and ever varying circumstances of each particular case, bearing upon the question of the fitness and propriety of the use of the water under consideration. 26 Evidence of the uniform and general custom in like cases is competent, although of course not conclusive, upon the question whether a use is a reasonable one." These cases are quoted to show that the basic common-law test is what is reasonable between the contesting riparian proprietors ; that what is reasonable on a mill stream may not be so on an irrigation stream and vice versa; that the custom of the community, that is, whether the dominant use of the stream by the majority of the ripa- rian proprietors is for power or for irrigation or for some other use, must considerably affect the decision of what any one of them may do; but that only the facts vary, the ultimate test (reasonable use) remaining in all cases unchanged. (3d ed.) 747. Same In California. A recent California case for the first time deals at some length with power uses by a riparian owner 24 Timm v. Bear, 29 Wis. 254. Minn. 249, 44 Am. Rep. 194, 15 N. 25 Red River Co. T. Wright, 30 W A fl 1 S. 28 Citing cases. 747 Ch. 32. REASONABLE EIPARIAN USE. (3d ed.) 811 as such. Many mining cases have, in California, dealt with power use under the law of appropriation on public land in the pioneer days, but this is the first considering it specifically with reference to riparian owners as such, and among themselves, now that much of the land of the State has become private and the law of riparian rights has so largely displaced the law of appropriation. 1 The court said, per Mr. Justice Shaw : 2 "The power company owns the land on which the power-house stands, and all the intervening land between the power-house and the dam at the head of its pipe-line, and all this land is riparian to Mill Creek. The electricity generated at the power-house by the use of the water from the pipe is carried away to Redlands and other places not on the stream, and there used for light, heat and power. The plaintiff makes the novel proposition that the use of the water to generate electric power by means of a power-house situated on riparian land is not a use within the scope of the ripa- rian rights which attach to the land, unless the electric power is not only generated upon that land, but is also applied and used -within its confines. There is no merit in this proposition The use of the water in its passage through his land to operate a power plant thereon is as clearly within his rights as is his right to operate a mill thereon with which to grind grain or to operate any other machinery, than which there is no more ancient or well-estab- lished feature of riparian rights. The theory of the plaintiff on this point would seem to come to this, that in the process the water is in some way transformed into electricity and, in that form, is carried away and used on nonriparian land. If this were correct, perhaps the use would not be included in the riparian right and perhaps even a prior appropriator below could prevent such use if it worked injury to his right. But no such thing occurs. The water is not changed into electricity, nor carried away by the process. It is not the water that becomes electricity. It is the force of gravity, the weight of the water, which turns the wheels, and, being converted into electric power, is carried away on the wires, the water itself being turned back into the stream, precisely as in the case of its use to turn an ordinary mill wheel. The power company, being the owner of the riparian land, has the full right to use the water in its natural course on its land for that purpose. 1 Supra, sees. 116, 231; infra, sec. (1909), 155 Cal. 323, 100 Pae. 1082, 815. -'2 L. R. A., N. S., 382, 17 Ann. Cas, 2 Mentone Co. v. Redlands Co. 1222. 812 (3d ed.) Pt. IV. THE COMMON LAW OF KIPARIAN BIGHTS. 748 It has also the right, if it is more convenient and effective so to do, to turn it out of its natural channel at the upper end of its posses- sions, use it for generating power thereon and turn it back into the stream within its lands below, provided such interference with natural conditions does not unduly injure others who have rights in the water." (3d ed.) 748. Reasonable Use for Irrigation. For all but "natural uses" the riparian proprietor is limited in his use so as not to un-. reasonably interfere with the use of their lands by other riparian owners. The same is true of irrigation just as of other uses for profit. 3 One riparian proprietor cannot take water for irrigation to the unreasonable exclusion of the others below, or take all. 4 Con- cerning the reasonable use allowed the riparian proprietor for irri- gation extracts are here given from some decisions, English and Eastern as well as Western. They all agree; namely, that the use for irrigation is proper within the limit that it must not unreason- ably prevent the possibility of equal use by the other riparian proprietors. In a California case Mr. Justice Shaw said: "Where two persons own land along the line of a watercourse, the measure of their rights is not necessarily controlled solely by the length of their respec- tive frontages on the stream. Many other things 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, 5 it is said : ' In such a case, the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each all these, and many other considerations, must enter into the solu- tion of the problem.' And the general rule is there stated to be, in cases where there is not water 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. " 6 In Nevada Judge Hawley said : ' ' Under the rules of the 3 Lone Tree etc. Co. v. Cyclone 4 Learned v. Tangerman, 65 Gal. etc. Co., 15 S. D. 519, 91 N. W. 352; 334 > 4 Pac - 191 > and cases supra. Tone , Corrith, Si Te, 362, and | &*&**.. wil . cases supra, 98 Am. Dec. 540. sn ire, 144 Cal. 68, at 71, 77 Pae. 767. 748 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 813 common law, the riparian proprietors 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 impossible to lay down any precise rule which will be applicable to all cases. The ques- tion may be determined in each case with reference to the size of the stream, the velocity of the water, the character of the soil, the number of proprietors, the amount of water needed to irrigate the lands per acre, and a variety of other circumstances 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 pro- prietors. " 7 In a Nebraska case : 8 " The common law seeks to secure equality in use of the water among all those who are so situated that they may use it. It does not give to any riparian owner property in the corpus of the water, either so as to be able to take all of it, or so as to insist that every drop of it flow in its natural channel. 9 When, therefore, counsel tell us that their clients have a natural right to irrigate, and that reasonable use of the water is necessary in exercise of that right, they urge nothing against the rules of the common law, since the latter merely insist that others along the streams in question have the same natural right, and per- mit every reasonable use by each, consistent with like use by all." And elsewhere in the same case: "For, if we regard the question of what is reasonable use as in great part one of fact, the conditions of soil, climate and rainfall in any given locality, when proved, may be considered properly as important elements of fact, without in the least affecting the general rule. But if we concede so much, the law iijsists that the lower owner shall not be deprived of the use of the water to an unreasonable extent. 10 The uses which an See, also, Gutierrez v. Wege, 145 Gal. reasonable, and the right must be ex- 730, 79 Pac. 449 ; Anaheim etc. Co. ereised so as to do the least possible v. Fuller, 150 Cal. 327, 88 Pac. 978; injury to others. There must be no Nesalhous v. Walker, 45 Wash. 621, unreasonable detention or consump- 88 Pac. 1032. tion of the water." Union etc. Min. 7 Jones v. Adams, 19 Nev. 78, 3 Co. v. Farris, 2 Saw. 176, Fed. Cas. Am. St. Rep. 788, 6 Pac. 442, -and No. 14,371, 8 Morr. Min. Rep. 90. repeated in Union Min. Co. v. Dang- 8 Meng v. Coffey, 67 Neb. 500, 108 berg, 81 Fed. 73, "Irrigation must Am. St. Rep. 697, 93 N. W. 715, 60 be held in this climate to be a proper L. R. A. 610. mode of using water by a riparian 9 Citing Vernon Irr. Co. v. Los proprietor, the lawful extent of the Angeles, 106 Cal. 237, 39 Pac. 762. use depending upon the circumstances 10 Citing Sampson v. Hoddinott, 1 of each case. With reference to Com. B., N. S., 590, 3 Jur., N. S. these circumstances, the use must be 243. 814 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 748 upper riparian owner may make of a stream for purposes of irriga- tion must be judged, in determining whether they are reasonable, with reference to the size, situation and character of the stream, the uses to which its waters may be put by other riparian owners, the season of the year, and the nature of the region. These circum- stances differ in different cases, and what use is reasonable must be largely a question of fact in each case. 11 Some things, however, are clearly unreasonable, and it may be laid down absolutely that the upper owner, in using the water for irrigation, must not waste, need- lessly diminish, or wholly consume it, to the injury of other owners, nor so as to prevent reasonable use of it by them also. ' ' 12 The principle that it is entirely a question of degree is set forth in a leading Massachusetts case, 13 saying: "It has sometimes been made a question whether a riparian proprietor can divert water from a running stream for purposes of irrigation; but this, we think, is an abstract question, which cannot be answered either in the affirmative or negative, as a rule applicable to all cases. That a portion of the water of a stream may be used for the purpose of irrigating land we think is well established as one of the rights of the proprietors of the soil along or through which it passes; yet a proprietor cannot, under color of that right, or for the actual pur- pose of irrigating his own land, wholly abstract or divert the water- course, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it if not diverted or used unreasonably." In a New York case it is said he may use the water "for the purpose of irrigation of his lands when the amount used is reasonable and not out of proportion to the size of the stream." 14 In Kent's Commentaries it is said: "If I am the first person who applies the water of a running stream to the purpose of irrigation or a mill, I cannot afterward be lawfully dis- turbed in any essential degree, in the exercise of my right, though 11 Citing Lux v. Haggin, 69 Cal. gin, 69 Cal. 255, 10 Pac. 674; Harris 255, 10 Pac. 674; Baker v. Brown, 55 v. Harrison, 93 Cal. 676, 29 Pac. 325; Tex. 377; Harris v. Harrison, 93 Cal. Gould v. Eaton, 117 Cal. 539, 49 Pac. 676, 29 Pac. 325; Minnesota Loan & 577, 38 L. R. A. 181; Coffman v. Trust Co. v. St. Anthony Falls Water Bobbins, 8 Or. 279, 8 Morr. Min. Power Co., 82 Minn. 505, 85 N. W. Rep. 131; Gillett v. Johnson, 30 Conn. 520; Embrey v. Owen, 6 Ex. 353, 20 180. L. J. Ex. 212; Pitts v. Lancaster 13 Elliott v. Fitchburg Ry. Co., '10 Mills, 13 Met. (Mass.) 156. Gush. 193-195, 57 Am. Dec. 85. 12 Citing Union Mill Co. v. Dang- 14 Pierson v. Speyer, 178 N. Y. berg, 2 Saw. 450, Fed. Cas. No. 14,370, 270, 102 Am. St. Rep. 499, 70 N. E. 8 Morr. Min. Rep. 113; Lux v. Hag- 799. 748 Ch. 32. EEASONABLE RIPARIAN USE. (3d ed.) 815 I may not have enjoyed it for twenty years ; provided the water be used by me reasonably, so as not to divert the natural course of the stream from the lands below, or essentially destroy the same use of it, as it naturally flowed over adjacent lands." 15 In a Pennsyl- vania case: "It is a well-recognized rule that a riparian proprietor may, jure naturae, divert water from a stream for domestic pur- poses and for the irrigation of his land"; adding that the extent for irrigation depends on whether it is reasonable under all the cir- cumstances. 18 In a case in Maine it is said that a riparian pro- prietor may diminish volume for irrigation, provided he does not do so unreasonably, which "depends much upon the nature and size of the stream as well as the use to which it is subservient. ' ' 17 In a comparatively early English case the right to irrigate was recognized, 18 and it was clearly set forth in another decision upon which the principles set forth in the foregoing quotations are un- doubtedly directly or indirectly founded. Baron Parke said in Embrey v. Owen : 19 " This must depend upon the circumstances of each case. On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abut- ting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose. On the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful ap- plication; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not. ' ' 20 15 Kent's Commentaries, pt. VI, ing of the ground had been spoken lee. 52, Browne's ed., p. 631. of as 'being the most natural and 16 Messinger's Appeal, 109 Pa. 285, ordinary effects of burns and 4 Atl. 162. waters,' and probably a reasonable 17 Davis v. Getchell, 50 Me. 605, use for that purpose would be sus- 79 Am. Dec. 636. tained (see Embrey v. Owen (1851), 18 Miner v.. Gilmour, 12 Moore P. 6 Ex. 353, 20 L. J. Ex. 212), pro- C. 156, 14 Eng. Reprint, 861. vided it was not excessive in view 19 6 Ex. 352, 20 L. J. Ex. 212. of the size of the stream, and of the 20 Says a Scotch authority: "In needs of the lower heritors, and care the earliest of these cases the water- was taken to return the whole stir- 816 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN RIGHTS. 749 (3d ed.) 749. Same Turner v. James Canal Co. The recent Cali- fornia case of Turner v. James Canal Co. 21 is worth stating at some length, and contains an instructive exposition of the law. It was held, per Mr. Justice Shaw, that what is a reasonable use for irriga- tion depends on the facts of the case, and where water is taken from a slough connecting with the stream, regard must be had to the quantity of water in the slough as compared to that in the stream, the quantity the slough is capable of naturally receiving from the river, the quantity of land of each claimant, their respec- tive interests and requirements, and all other circumstances show- ing the needs of each. In this case Fresno Slough at ordinary times connected only with the San Joaquin River, being filled with water therefrom, rising and falling with the varying height of that river, but having no regular current of its own. At times of high summer floods, the opposite end of the slough connects also with another river (Kings River) and a lake (Tulare Lake), and receives water at that end also, and there will be a flow from one end to the other in either direction according to whether the Kings or the San Joaquin is at a higher stage. 22 Defendant, owning land upon this slough, took water directly from the slough and also from another point on San Joaquin River itself thirty or forty miles above its land. All the water so taken at both points defendant used to irri- gate its land along the slough. Plaintiff, a riparian owner on the San Joaquin River below the slough, had arranged a series of levees, checks and other works, to utilize the natural overflow in flood time (so that it covered an extensive area, depositing fertilizing sedi- ment, and naturally irrigating it) for the purpose of growing large crops of grass, which will be diminished by defendant's diversions. It was held that defendant's land bordering on the slough is to be regarded as riparian to one or the other river, according to which is furnishing the slough with its water at times of use, and entitled to a reasonable use of the water of such river (though it results in diminishing the flow), in conjunction with other riparian owners on such river, the slough at such times being in effect a branch or plus to the channel. The return of 21 (1909), 155 Gal. 82, 132 Am. any surplus is essential." Ferguson St. Eep. 59, 99 Pac. 520, 22 L. E. A., on The Law of Water in Scotland, N. S., 401, 17 Ann. Cas. 823. p. 241. In Sampson v. Hoddinott, 22 The slough was fourteen miles 1 Com. B., N. S., 603, Cresswell, J., long and crooked, and from one hun- said: "Irrigation is a riparian right, dred to two hundred feet wide, to be exercised subject to the rights of the other riparian proprietors." 749a Ch. 32. SEASONABLE EIPAEIAN USE. (3d ed.) 817 inlet of such river. 23 In making this reasonable use, the water may be taken by defendant either from the slough or from the river itself above complainant, so long as complainant's land is not tres- passed upon. The quantity to be taken by defendant as reasonable is to be determined by the trial court, as a question of fact. It is not to be denied because such use may interfere with the natural irrigation of plaintiff's lands by the overflowing of the river during floods; saying: "To what extent such interference can be allowed without being unreasonable is a question of fact for the trial court upon a consideration of the needs of each, the comparative benefits of the respective uses, the comparative injuries caused to each by the deprivation ensuing from the use by the other, and all other circumstances bearing thereon." And regard must be had "to the quantity of land of each, their respective interests, the quantity of water in the slough, as compared to that in the river, the quan- tity the slough is capable naturally of diverting from the river, and all other circumstances affecting the question of a reasonable division of the water in case there should not be enough to supply the needs of all. ' ' (3d ed.) 749a. Same. The enforcement of this rule in California is the so-called ' ' modification ' ' of the common law which some declare to exist in the West even in States such as California which recognize riparian rights. 24 The misnomer arose from a misinterpretation of 23 Mr. Justice Shaw says: "There season, and irrigation is necessary to is no more reason for declaring that successful cultivation of the soil, the the owner of lands on the river can doctrine of riparian ownership has, prevent the owner of lands on the by judicial decision, been modified, or, slough from taking a reasonable share rather, enlarged, so as to include the of the water of the slough, although reasonable use of natural water for it may affect the flow of the river, irrigating the riparian land, although than of holding that the owner of such use may appreciably diminish the land on the slough could prevent the flow down to the lower riparian pro- riverman from taking his reasonable prietor.' And this must be taken to part of the water of the river to the be the established rule in California, depletion of the water in the slough. at least, where irrigation is thus nee- One has as clear a right as the other essary." Also, Wiggins v. Muscupi- to the natural advantages of his abe etc. Co., 113 Cal. 182, 54 Am. St. situation, -and an equal right to com- Eep. 348, 45 Pac. 160, 32 L. E. A. plain of the deprivation thereof by 667 ; Bathgate v. Irvine, 126 Cal. 136, the undue use of the other." 77 Am. St. Eep. 158, 58 Pac. 442; 24 Thus Harris v. Harrison, 93 Cal. Katz v. Walkinshaw, 141 Cal. 116, 676, 29 Pac. 325, said: "But in some 99 Am. St. Eep. 35, 70 Pac. 663, 74 of the Western and Southwestern Pac. 766, 64 L. E. A. 236 (per Mr. States and territories, where the year Justice Shaw) ; City of Los Angeles is divided into one wet and one dry v. Los Angeles etc. Co. (1908), 152 Water Rights 52 818 (3d ed.) Pt. IV. THE COMMON LAW OF RIPAEIAN EIGHTS. 749a Lux v. Haggin, 25 where the matter was thoroughly examined and it was, on the contrary, shown that there was nothing in this peculiar to the West. If the above authorities are not sufficient to show that to call it a "change" is erroneous and that the California rule is no change or modification, then we refer the reader to a later section where some more are quoted, 20 and will now add in this place still a few others. In Washington the court says: 27 "It is suggested on behalf of the appellants that the use of water for irrigation was practi- cally unknown to the common law. But, while it may be true that it is seldom necessary or desirable to irrigate land in Eng- land by artificial means, yet it appears that a reasonable use of running streams for that purpose by riparian proprietors is recognized by the courts of that country. It is expressly so stated in Gould on Waters, 1 where a number of English cases are cited; and in Pomeroy on Riparian Rights, 2 it is declared that the common- law rule that every riparian proprietor has an equal right to the use of water as it is accustomed to flow, without diminution or alteration, is subject to the well-recognized limitation that each owner may make a reasonable use of the water for domestic, agricul- tural and manufacturing purposes; and the author there cites several English and many American decisions in support of that declaration." And the Oregon court, 3 citing many cases, says: "It is accordingly now quite generally held in this country and in England, that, after the natural wants of all the riparian pro- prietors have been supplied, each proprietor is entitled to a reason- able use of the water for irrigating purposes." And another au- thority declares ' ' The right at common law of a riparian proprietor to make a reasonable use of the waters of a natural stream for irri- gation purposes is well settled, both in England and in the United States." 4 A late New Jersey case says: "That diversion for use Cal. 645, 93 Pac. 869, 1135; Turner 25 69 Cal. 255, at 398 et seq., 10 v. James Canal Co. (1909), 155 Cal. Pac. 674. See supra, sec. 673. 82, 132 Am. St. Eep. 59, 99 Pac. 520, 28 Infra sec 799 S. L V E - A ^ N -T S -'r 01 'sh 7A r-T? a r S ; ^Bento'n v'. Johncox, 17 Wash. M (P f r ^- r \L W U>8 Q8 277 > 61 Am - St - Ee P- 912 > 49 PM. v. Maclay E. Co., 154 Cal. 428, 9o AC . ' OQ T T> A TOT Pac. 260 (per Mr. Justice Shaw); 98 ' 3 ' L * B> A ' 107 ' Lobdell v. Simpson, 2 Nev. 274, 90 1 Section 217. Am. Dec. 537, and the decisions of the 2 Section 125. , States following the Colorado doctrine 3 Jones v. Conn, 39 Or. 30, 87 Am. rejecting riparian rights in toto St. Eep. 634, 64 Pac. 855, 65 Pac. (quoted supra, sees. 112, 118, 168), on 1068, 54 L. E. A. 630. the ground that the common law is 4 17 Am. & Eng. Ency. of Law, destructive of irrigation. 487. 750 Ch. 32. EEASONABLE RIPARIAN USE. (3d ed.) 819 upon riparian lands and for domestic and agricultural or manu- facturing purposes is in its nature a reasonable use is the settled law of this State, and diversion for irrigation has also been held to be a reasonable use in accordance with the general American doc- trine and the English authority." 8 In Year Book XII, Edward III (A. D. 1331), plaintiff complained of diversion from his meadow of a stream ' ' with which water he was wont to water his cattle, namely, horses, sheep and cows, and also to fish therein and brew therewith, and irrigate [adaquare] the aforesaid meadow in time of drought," and the assize passed for plaintiff. In another English case 6 it was said: "Now the plaintiff was not hurt as to culinary purposes, nor irrigation, nor as to his cattle nor drainage," and an injunction was refused. As the Kansas court says: "The authorities are unani- mous to the effect that the use of water for irrigation is one of the common-law rights of a riparian proprietor. ' ' 7 (3d ed.) 750. Reasonable Use (Concluded). The common law and the civil law are in this the same. The civil law is: "If water passes between estates of different owners, each one of these can use it for the irrigation of his estate or for any other object, but not the whole of it, but only the part which corresponds to him, because both have equal rights, and the one can consequently oppose use of it all by the other, or even a part considerably more than his own." 8 The principle of equality is the foundation of the common law in all jurisdictions. English and Eastern cases presented difficul- ties of fact in equalizing uses for conflicting purposes (e. g., a mill and an irrigator on the same stream). 9 The difference in the "West is merely the greater simplicity of fact because usually irrigation is alone the predominating use, so that equality becomes more easily attainable as a matter of division and apportionment. 5 City of .Paterson v. East Jersey 9 The difficulty of satisfactorily W. Co., 74 N. J. Eq. 49, 70 Atl. 484. adjusti er and irr i gat ion uses 6 Elmhirst v. Spencer, 2 Macn. & . G. 45, 42 Eng. Reprint, 18. on the same stream 1S illustrated in 7 Clark v. Allaman, 71 Kan. 206, Schodde v. Twin Falls Co. (Idaho), 80 Pac. 584, 70 L. R. A. 971. 161 Fed. 43, 88 C. C. A. 207; Men- 8 Hall's Mexican Law, sec. 1391. tone CQ y> Redlands Co. (1909), 155 See the Code Napoleon and other J ' civil-law authorities given supra, sec. Lal - 3 ^> *' 82 2 L - K - A -> 685, and infra, sec. 1025 et seq. N. S., 382, 17- Ann. Cas. 1222. 820 (3d ed.) Pt. IV. THE COMMON LAW OP EIPAEIAN EIGHTS. 751 C. APPOETIONMENT. (3d ed.) 751. Apportionment. To secure to all contesting riparian proprietors the reasonable use to which each is entitled, a court of equity will, if necessary, apportion the water. 1 This was com- paratively early said to be well settled and not a Western innova- tion, and Professor Pomeroy, cited in the note, says it is a matter regularly within the jurisdiction of equity. 2 The apportionment may be measured in any manner best calcu- lated to a reasonable result. "Riparian owners are not to be de- barred from use of water because the season is dry and the strearfi 1 Harris v. Harrison, 93 Cal. 676, 29 Pac. 325 ; Wiggins v. Museupiabe etc. Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. E. A. 667; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725. See Metcalfe v. Faucher (Tex. Civ. App.), 99 S. W. 1038. It is said that this will be done with percolating waters also. Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Eep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. B. A. 236, as to which, see Glassell v. Verdugo, 108 Cal. 503, 41 Pac. 403; Verdugo Co. v. Verdugo (1908), .15? Cal. 655, 93 Pac. 1021. 2 McKee, J., in Anaheim W. Co. T. Semi-Tropic W. Co., 64 Cal. 197, 30 Pac. 623 (see for another early case, Los Angeles v. Baldwin, 53 Cal. 471) ; Pomeroy on Eiparian Eights, sec. 15."), relying on a New York case. In Tyler v. Wilkinson, 4 Mason, 413, Fed. Cas. No. 14,312, between mill owners, the case (decided by Justice Story) was referred to a master to ascertain, "as near as may be .... the quantity to which the trench owners are entitled, and to report a suitable mode and arrangement per- manently to regulate and adjust the flow of the water so as to preserve the rights of all parties." In a Massa- chusetts case (Ballou v. Inhabitants of Hopkinton, 4 Gray (Mass.), 324, 328) : "In regulating the rights of mill owners and all others in the use of a stream, wherein numbers of per- sons are interested, equity is able, by one decree, to regulate their respec- tive rights, to fix the time and manner in which water may be drawn, and within what limits it shall or shall not be drawn by all parties, respec- tively," etc. In an Illinois case it was held that where two steam mills or factories are located on the same stream, the rule is this: "That so far as the water is destroyed by being converted into steam, neither is en- titled to its exclusive use. It is to be divided between them as nearly as may be according to their respective requirements. If each requires the same quantity, it should be equally divided." Bliss v. Kennedy (1867), 43 111. 67. In a recent New Hamp- shire case, among mill and power users, apportionment was decreed. Eoberts v. Clarement Co., 74 N. H. 217, 124 Am. St. Eep. 962; 66 Atl. 485 ; citing Home v. Hutchins, 71 N. H. 128, 51 Atl. 651; Fowler v. Kent, 71 N. .H. 388, 52 Atl. 554; State v. Sunapee Dam. Co., 70 N. H. 458, 50 Atl. 108, 59 L. E. A. 55; Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504; Patten Co. v. Kankanna Co., 70 Wis. 659, 35 N. W. 737; Angell on Water- courses, sees. 98-101. Accord, War- ren v. Westbrook Co., 88 Me. 58, 51 Am. St. Eep. 372, 33 Atl. 665, 35 L. E. A. 388. According to a French authority: "Les tribunaux competemment saisis d'une demande en repartition d'eaux sont autorises a ordonner 1'establissement des ouvrages necessaires pour assurer a chacun des riverains la portion d'eau qui lui est attribute." Droit Civile Francais, by Aubrey & Bau, 4th ed., vol. Ill, p. 58. We give these authorities to show the error of con- sidering this an innovation in West- ern law. 751 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 821 low. " 3 In apportioning the water, the court of equity will adopt any mode that is reasonable on the facts to secure equality. For the protection of the rights of the several riparian proprietors it has been held that a court of equity may, in a proper case, appor- tion the flow of the stream, 'after the natural wants of the several proprietors have 'been satisfied, in such a manner as may seem equi- table and just under the circumstances. 4 The apportionment may be by quantity, awarding to each a definite share of flow for con- tinual use, as where a riparian proprietor's right was fixed at one hundred inches. 5 The apportionment may take the form of fixing fractions of the whole stream as to surface flow, but as to the sub- flow, this would be impracticable, and the apportionment must take the form of a positive quantity of water. 8 In fixing the amount. however, the caution must be insisted on, that present needs or use are not to be made the test. Actual present use does not limit the riparian right future possible use is equally to be secured, and must be figured in the decree. "The right of a riparian owner to the use of the water is not, however, measured by the amount he actually uses, and it is not to be assumed that the same amount of land will be cultivated in every succeeding year. The amount of irrigable land belonging to each party, rather than the amount of land already under cultivation, would be properly made a con- trolling element in adjusting their respective rights to the flow of the stream ; otherwise a readjustment would be necessary whenever either party should cultivate a greater or less area. ' ' 7 The apportionment may be by periods of time instead of by quan- tity or volume. In Wiggins v. Muscupiabe etc. Co. 8 the court says : "Whenever it should appear from the circumstances of the case that the only method by which either proprietor could have a rea- sonable use of the stream would be to allow to each its full .flow for a reasonable time, the only equitable adjustment of their rights would be to thus apportion the flow. Whether this apportionment should be for alternate weeks or alternate days, or for a specific 3 Meng v. Coffey, 67 Neb. 500, 108 Verdugo W, Co. v. Verdugo Am. St. Rep. 697, 93 N. W. 715, 60 (1908), 152 Cal. 655, 93 Pac. 1021, L. R. A. 910. par. 9 of opinion. " Muscupiabe etc. Co., n fi T P A fin V ' t fc 113 Cal 194, 54 Am. St. Rep. 337, 45 1068, 54 L. R. A. 630, citing the Call- p&c 16Q 32 ' L R A 66? forma cases supra. 5 Lone Tree Ditch Co. v. Cyclone 8 113 Cal. 182, at 193, 54 Am. St. Ditch Co., 15 S. D. 519, 91 N. W. Rep. 337, 45 Pae. 160, 32 L. R. A. 355: Same v. Same. 128 N. W. 596. 667. 822 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 751 portion of each day, must be determined by the facts of each case." 9 For example, in Harris v. Harrison, 10 the leading case, each con- testing riparian owner was awarded the entire flow for three and one-half days out of seven. In another case 11 plaintiff's land con- tained about two thousand acres, and the court found that fifty acres of it were adapted to cultivation and were susceptible of irri- gation, and that only three acres and a fraction of defendant's land were adapted to cultivation and irrigable ; and it found that a fair proportionate division of the water of the creek, for irrigation, would give to plaintiffs the entire flow of the creek for twenty days out of every twenty-one days, and to defendant the entire flow of the creek for one day out of every twenty-one days ; and judgment was rendered in accordance with this finding, and affirmed on appeal. The apportionment may be applied to use for domestic purposes ("natural uses") under the view that all uses are tested by the rule of reasonableness in effect as well as reasonableness of purpose. 12 In one case it is said : 13 ' ' But it does not follow as is also found by the court that they are entitled to continuous flow of two inches or any other quantity in the ditch, and such a requirement, we think, would be unreasonable. The flow of water in a stream may, and when necessary should, be apportioned between the parties in- terested 'by periods of time, rather than by a division of its quan- tity' and artificial means of conducting it may be allowed, instead of the natural channel. Or, indeed, it would be in the power of the court to hold that the demands of the plaintiffs entitled to water for domestic use are sufficiently supplied by the constant flow of the water by their places for eighteen hours, to which is to be added, in case the rights of the plaintiffs to the other water in question be established, an additional flow of two or three hours, or p.erhaps more. ' ' 14 Where the facts warrant it, an equal distribution will be de- creed. 15 "If every riparian proprietor on a given stream owned the same quantity of land, with the same frontage on the stream, and the same susceptibility to and need of irrigation, each would be 9 Accord, Guiterrez v. Wege, 145 *3 Craig v. Crafton Water Co., 141 Cal. 730, 79 Pac. 449. Cal. 178, 74 Pac. 762. ? 93 9 al - 676 > 29 Pac 325 14 g , Anderson v. Bassman, QI P ST" V ' g6 ' ' ' "0 Fed! 14; 'Rogers v. Overacker, * '- 1 f: Jy .- Cal. App. 333, 87 Pac. 1107. 12 Wiggins v. Muscupiabe etc. Co., 113 Cal. 191, 54 Am. St. Rep. 337, 45 15 E. g., Harris v. Harrison, supra. Pac. 160, 32 L. R. A. 667. 752 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 823 entitled to precisely the same quantity of water for that purpose." M And in another case it is said : ' ' While the distribution of the waters of the stream among riparian owners, according to common-law principles, is most difficult, where the stream is long, the riparian owners numerous, and the quantity of water limited, yet in this case each of the parties owns the same quantity of land, of substantially the same character, their necessities and conditions are substantially the same, and an equal distribution of the waters of the creek be- tween them will mete out substantial justice as nearly as substantial justice can be attained." 17 There can be no apportionment by either time or volume in the absence of evidence of all surrounding circumstances bearing upon what would be reasonable. 18 No one thing being conclusive, evi- dence of the entire situation must be forthcoming, such as kind of crops, relative acreage, size of stream, number of contestants and so forth. (3d ed.) 752. Apportionment is an Equitable Remedy. The appor- tionment rests upon the power of equity, as distinguished from law, to give specific relief. An award of a definite quantity of water to any riparian owner against other riparian owners is not because his substantive right is measured thereby, but because such remedy affords more adequate relief than the damages which a court of law could give. The substantive right of each is the indivisible one to the reason- able use of his own land, and not to any fixed quantity of water. As is said in Lux v. Haggin: "We anticipate the objection that this is Charnock v. Higuerra, 111 Cal. 136; Hollett v. Davis, 54 Wash. 326, 479, 52 Am. St. Rep. 195, 44 Pac. 103 Pac. 423. "Before the distribu- 171, 32 L. R. A. 190. tion can be made, we must first know 17 Nesalhous v. Walker, 45 Wash. the quantity of water in the stream 621, 88 Pae. 1032. from time to time during the irrica- 18 Coleman v. Le Franc, 137 Cal. tion season, the acreage of each fqrin 214, 69 Pac. 1011; Riverside W. Co. in crops, character thereof, the v. Sargent, 112 Cal. 230, 44 Pac. 560; amount required for the proper irri- Rogers v. Overacker, 4 Cal. App. 333, gation of each crop and kind of crop, 87 Pac. 1107; Riverside W. Co. v. time for irrigation of each, etc., and Gage, 89 Cal. 410, 26 Pac. 889; Mon- all of the lands should be properly tecito Co. v. Santa Barbara, 151 Cal. surveyed and platted, showing its 377, 90 Pac. 935; Strong v. Baldwin status in this and various other re- (1909), 154 Cal. 150, 129 Am. St. spects in detail." Hough v. Porter, Rep. 141, 97 Pac. 178; Hudson v. 51 Or. 318, 95 Pac. 732. See, also, Dailey, 156 Cal. 617, 105 Pac. 748 ; S. C., 98 Pac. 1083, 102 Pac. 728. Perry v. Calkins (Cal.), 113 Pac. 824 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN EIGHTS. 752 is not an absolute rule at all, but, as said by the judges in the opin- ions quoted from, the very nature of the common right is such that a precise rule as to which is reasonable use by any one proprietor for irrigation cannot be laid down." 19 There cannot be any per- manent severance or right by any one of them. 20 The apportion- ment decreed in equity is not a severance of rights such as occurs in partition between tenants in common, but is an equitable ex- pedient to enforce, under existing conditions, the unseverable right of each to a reasonable use of the riparian land. The apportion- ment is merely such as, "under the circumstances and facts in this case, would be a reasonable and equitable division of the water. ' ' 21 Consequently, not being a severance of right, but an expedient of remedy in each case, an apportionment made at one time is not necessarily conclusive at a later point of time, when the circum- stances on which it is based have changed. The apportionment is decreed in equity to afford equality on the facts existing at the time ; on the circumstances then existing. When the circumstances change so that the decree no longer represents equality and rea- sonable division, then a readjustment must be had under the new conditions. A system of correlative rights accepting as its ground principle the determination of what is reasonable in each case, can- not in its nature be a system of permanent fixedness, such as is the system of exclusive rights by appropriation. The apportion- ment is permanent only if the surrounding circumstances on which it was founded remain unchanged, so that the equality of the ap-' portionment is not destroyed; and ceases to be permanent when a subsequent change of circumstances has destroyed the reas'onable- ness of the adjustment. For example, an apportionment based on the quantity of water needed to irrigate certain crops where both 19 Lux v. Haggin, 69 Cal. 255, at ordinarily be definitely ascertained or 408, 10 Pac. 674. determined, although this may, per- 20 Union Min. Co. Cases, 8 Morr. haps, be done in exceptional cases." Min. Bep. 113, Fed. Gas. No. 14,370, See, also, Hough v. Porter, 51 Or. 31% 2 Saw.' 450, 2 Saw. 176, Fed. Gas. No. 95 Pac. 732, 98 Pac. 1083, 102 Pac. 14,371. 8 Morr. Min. Eep. 90, and 728; Lone Tree Co. v. Cyclone Co. (S. 81 Fed. 73; Davis v. Chamberlain, 51 D.), 128 N. W. 596; Tacoma etc. Co. Or. 304, 98 Pac. 154, saying: "It v. Smithgall (Wash.), 108 Pac. 1091. necessarily follows, therefore, that 21 Wiggins v. Muscupiabe etc. Co., the nature and extent of the right of 113 Cal. 189, 54 Am. St. Eep. 337, 45 a riparian proprietor to the water of Pac. 160, 32 L. E. A. 667, in which a stream, for irrigation, cannot be case it is expressly recognized that measured by any definite or fixed rule, there may be contingencies in which nor can the amount of water to which a readjustment may be necessary, he is entitled to use for that purpose 753 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 825 parties grow the same kind, would work great injustice when one party changes to crops requiring much less water, while the other changes to crops needing more. To make them share in the same proportion as before would work great injustice to one, simply to permit waste by the other. There are many other changing conditions. The soil requires more water at one time than another; different crops require different quantities of water, and these requirements vary at dif- ferent stages of growth; humidity of seasons varies, and with it vary both requirements and supply; one kind of soil or crop re- turns more water to the stream than others ; the times of applying the water will be different under changed methods of cultivation; the area cultivated or owned may change ; the flow of streams con- stantly changes ; new parties may be involved in a subsequent con- troversy whom the former apportionment had not considered because not parties to the former suit, and whom the former decree cannot bind. All these things may produce changes subsequent to an apportioning decree to such an extent that the substantive right of each contestant to the equal reasonable use of their respective lands is no longer secured by the decree. Thus equality must de- pend upon circumstances, and the adjustment must change when they change. An equalized distribution at one time may become very unequal at a later point of time. 22 The apportionment is, however, binding so long as the situation remains the same on the facts. In such a case it has been held: "The conditions do not appear to be different now from- what they then were. The diversion by the defendants is the same now as then, and while these conditions continue unchanged, the judgment rendered in the former action operates as a bar between the par- ties here " ; 23 and without doubt a court of equity should and will 22 As has been said: "In ordinary tions to which they may respectively controversies between parties claim- be entitled may vary from time to ing only as riparian proprietors on time, in accordance with the facts ex- the same stream of water, a judgment isting at the respective times." determining that at a given time the (Rhodes, J., in Los Angeles v. Bald- parties are entitled to appropriate the win, 53 Cal. 471, concurring opinion, waters in certain proportions is not In actual decision, the former appor- necessarily conclusive in a subsequent tionment was held binding because action; for the facts upon which rests the circumstances had not changed the determination as to the proportion in fact. See, also, Williams v. Alt- of the waters to which the parties are now, 51 Or. 275, 95 Pac. 200, 97 Pac. entitled may be materially different 539.) at the second trial In other - 3 Los Angeles v. Baldwin, 53 Cal. words, where the parties claim merely 469, at 470. as riparian proprietors, the propor- C28 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN RIGHTS. 753 be slow to proceed to a reapportionment in any but the clearest cases showing that justice so demands, and only where the change in situation of the parties has been so extreme that the equality of the previous adjustment has been obviously destroyed. To proceed thus on light grounds would work more injustice by inducing in- security, than justice. The adaptability of the common law of ripa- rian rights to circumstances, through its system of correlative as opposed to exclusive rights, is, in the end, intended only to secure equal justice and right. (3d ed.) 753. Confined to the Parties Litigant. In deciding what is a reasonable use, or in apportioning the water upon the basis of reasonable use, the decision must be confined to the parties to the litigation as already set forth. The court cannot entertain a con- tention that a party's riparian right should be measured by the total number of riparian proprietors on the stream when they are strangers to the action. For illustration: a stream flowing five hundred inches may have fifty riparian proprietors upon it. Other things being equal, each would be entitled to only ten inches as against all the rest, yet against the single one with whom he is litigating, this cannot be considered. It is solely a question of whether he is unreasonably interfering with his opponent without regard to the others, so that, as between the two, the court might well decree two hundred and fifty inches to each. This is a prin- ciple fundamental in all law, the law of appropriation as well. This is overlooked in a couple of Nebraska cases which say that where there are a large number of riparian proprietors, the right of each is infinitesimal and a diversion does him but nominal dam- age. 24 As between any one of them and another or against a nonriparian diverter, that is far from true. The rights of the many others have no bearing upon the suit. As between the two disputing riparian proprietors, the sole question is what is reason- able between the two ; and as against the nonriparian diverter, the complaining riparian proprietor is entitled to the entire flow that he could possibly use, regardless of what the remaining riparian proprietors may be entitled to. 25 The possible use of a riparian 24 McCook Irr. Co. v. Crews, 70 edly as against an appropriation by Neb. 115, 102 N. W. 249; Cline v. a mere wrongdoer, a riparian pro- Stock, 71 Neb. 70, 102 N. W. 265. prietor may insist upon the entire and 25 Lux v. Haggin, 69 Cal. 255, at complete natural flow of the stream." 396, 10 Pac. 674, saying: "Undoubt- 754 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 827 proprietor can be limited only by the right of another riparian proprietor, and only by such other as contests it. Authorities setting forth this principle are elsewhere given. 1 If a determina- tion based upon the rights of all the riparian proprietors is de- sired, all must be brought into court, and must join issue inter se. z This is another instance in which an apportionment may not be permanent ; that is, where made originally between a limited num- ber of private parties, and later a suit arises with an additional number of riparian owners involved. D. MISCELLANEOUS. (3d ed.) 754. Manner of Use. The manner of use must be reasonable. Between riparian owners, waste will be enjoined, 3 as where water is spread out so that it will be lost by evaporation, 4 or where it is ditched through porous soil in such a way that much or all is lost before reaching the end of the ditch. 5 The means of uSe are imma- terial and the taking may be by a seepage tunnel. 6 It is no objec- tion 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. 7 Two or more riparian proprietors may join in a common diversion if they take no more than their combined share. 8 A riparian owner may place a dam in the stream if he takes thereby no more than 'his due proportion of the water. The dam is not per se an improper structure as to lower owners. 9 And he may, to a reasonable extent, store water in the wet season for his sole use in the dry season. 10 "The mere storage of water in reser- voirs by means of dams is not, per se, an unreasonable use of the water of a stream by an upper riparian owner." n But it becomes wrongful if it causes waste or unreasonable or excessive loss of water 1 Supra, sec. 626 et seq. 6 McClintock v. Hudson, 141 Cal. 2 ibid. 275, 74 Pac: 849. 3 Campbell v. Grimes, 62 Kan. 503, ? Charnock v. Higuerra, 111 Cal. 4 Pac. 62; McClintock v. Hudson, 473, 52 Am. St. Rep. 195, 44 Pac. 141 Cal. 275, 74 Pac. 849. See 15 171, 32 L. R. A. 190. See Chatfielcl L. R. A., N. S., 238, note. v. Wilson, 31 Vt. 358. 4 Ferrea v. Knipe, 28 Cal. 340, 87 8 Verdugo W. Co. v. Verdugo Am. Dec. 128; Barneich v. Mercy, (1908), 152 Cal. 655, 93 Pac. 1021. 136 Cal. 205, 68 Pac. 589. Cf. Lawrie Arroyo D. Co. v. Baldwin (1909), v. Silsby (1909), 82 Vt. 505, 74 Atl. 155 Cal. 280, 100 Pac. 874. Cf. 94. Bickett v. Morris, L. R. H. of L. 47. 5 Shotwell v. Dodge, 8 Wash. 337, 10 Stacey v. Delery (Tex. Civ. App. 36 Pac. 254; Nielson v. Sponer, 46 1909), 122 S. W. 300. Wash. 14, 123 Am. St. Rep. 910, 89 " Parry v. Citizens' W. W. Co., 59 Pac. 155. Hun, 199, 13 N. Y. Supp. 471. 828 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 754 to other riparian owners, 12 or floods their lands 13 or unreasonably accelerates or retards the flow. 14 Where a riparian owner owns both banks of the stream where it passes his land, or where the opposite owner does not object, he may, as against lower owners, change the course of the stream on his land at will, so long as he returns the water to its natural channel before it reaches the land of the lower owners and does them no undue damage. 15 He may change his place of use or of diversion so long as he does no unreasonable injury to lower owners. 16 If a riparian owner takes no more than his share of water from a stream for irrigation, it is immaterial to lower riparian owners at what point the water is diverted or by what means. 17 He must divert on his own land as between himself and the owner of the land his ditch crosses ; 18 but he is not restricted to diversions on his own land so far as concerns strangers to the land on which he diverts. In Turner v. James Canal Co. 19 Mr. Justice Shaw says: "It has, during such periods, a right to take its share of the water from the main river at any convenient point thereon, whether such point of diversion is upon its own land or not, so long as such tak- ing does not injuriously affect the rights of owners of land abutting upon the river between the point of diversion and the company's riparian land. The fact that it must carry the water from the river over intervening nonriparian lands, belonging to other per- sons, is of no consequence. The person over whose land it is carried could object, of course, but other riparian owners have no privity with such third person, and cannot avail themselves of his rights, ' ' and they "have no right to inquire, how, or by what means, or at 12 Ferrea v. Knipe, 28 Cal. 340, 87 16 Kidd v. Laird, 15 Cal. 161, .76 Am. Dec. 128; Barneich v. Mercy, 136 Am. Dec. 472, 4 Morr. Min. Rep. 571, Cal. 206, 68 Pac. 589. relying on common-law cases; Whit- 13 Durga v. Lincoln etc. Co, 47 *g v - C A chec <*>. ("38), 9 N. H. Wash. 477, 92 Pac. 343. 458 > 2 Am. Dec. 382 17 Turner v. James Canal Co., 155 14 Radford v. Wood (1909), 83 Cal. 82, 132 Am. St. Rep. 59, 99 Pac. Neb. 773, 120 N. W. 458; Trullinger 52 o, 22 L. R. A., N. S., 401, 17 Ann. v. Howe, 53 Or. 219, 97 Pac. 549, 99 Cas. 823. Pac. 880, 22 L. R. A., N. S., 545. is Cal. etc. Co. V. Enterprise etc. 15 Mentone Co. v. Redlands Co. Co. (Cal.), 127 Fed. 742. (1909), 155 Cal. 323, 100 Pac. 1082, 1 (1909), 155 Cal. 82, 132 Am. St. 22 L. R. A., N. S., 382, 17 Ann. Cas. Rep. 59, 99 Pac. 520, 22 L. R. A., 1222; Cook v. Seaboard etc. Ry., 107 N. S., 401, 17 Ann. Cas. 823. Ac- Va. 32, 122 Am. St. Rep. 825, 57 S. cord, Redwater Co. v. Jones (S. D.), E. 564, 10 L. R. A., N. S., 966, and 130 N. W. 85. In the Fren'ch law of cases cited in 122 Am. St. Rep. 830, riparian rights the same rule is laid note; Wood v. Craig, 133 Mo. App. down in Pardessus, Traite de Servi- 548, 113 S. W. 677. tudes, vol. I, p. 262. 755 Ch. 32. SEASONABLE RIPARIAN USE. (3d ed.) 829 what place, he manages to divert his share from the stream, whether at a' point on his own land, or at some point far above, where the elevation of the stream will be sufficient to carry it by gravity to the surface of his land, and whether by a dam and headgate, or by pumps and buckets In such cases it may be that there will be an unreasonable waste of water by carrying it in open ditches subject to evaporation and seepage, and to that extent the method and place of diversion is a proper subject of inquiry in determining the comparative rights of different riparian owners." Against those below, one riparian owner may take water from the stream in a prescriptive ditch upon another's riparian land above him. 20 (3d ed.) 755. 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 complaining riparian owners, 21 whether the use is for irrigation or water-power or any other purpose. 22 The manner of return is immaterial. 23 An artificial flow may be substituted in the return, for the natural flow; that is, the return may be made through a ditch instead of the natural channel, 24 and it is sufficient if returned above the lower owner's boundary, though this may be below the defendant's boundary, there being interven- ing owners who do not complain. 25 One owning both banks of a 20 Logan v. Guiehard (Cal. 1911), 23 Mason v. Cotton (C. C.), 4 Fed. 114 Pac. 989, holding however, that 792, 2 McCrary, 82; Gould T. Eaton, such prescriptive ditch can carry water 117 Cal. 539, 49 Pac. 577, 38 L. R. A. as against lower owners only for ripar- 181; Wiggins v. Muscupiabe etc. Co., ian use, and only (as against the upper 113 Cal. 182, 54 Am. St. Rep. 337, 45 owner) the amount used during the Pac. 160, 32 L. R. A. 667. prescriptive period, even though as 24 Mason v. Cotton (Colo.), 4 Fed. riparian owner he has a right to more 792. See supra, sec. 279. elsewhere on the stream (semble). 25 Ibid., and cases in last section. T ioc n^i IOK "Tte meme, encore bien que le texte 21 Batharate v. Irvine. 126 Cal. loo, -,.!.* > ,, , , eA4 1 U i- c T> use KQ ID 1 A') littoral de 1'article 644 oblige celui 77 Am St. Rep. 158, 58 Pac. 142; . ,,. ,, B _iI* % ~ *;;- T. T k rnn ma A 22 Weiss v. Oregon etc. Co., 13 Or. mais avec le consentement du maitre 496, 11 Pac. 255 ; City of Canton v. de ce f onds, le voeu de la loi nous Shock, 66 Ohio St. 19, 90 Am. St. sembleroit etre suffisamment rempli." Rep. 557, 63 N. E. 600, 58 L. R. A. Pardessus, Traite de Servitudes, vol. 637. I, p. 263. 830 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 756 stream may change the course of the stream as he chooses within his boundaries, so long as he returns it to its natural channel above the lower claimant without unreasonable diminution. 1 For example of what is held unreasonable, the facts in a Nebraska case were: "It takes the water away from the creek to a -point about a mile off, where the dip is but very slightly toward the creek, and there discharges it, so that practically all that is not used in irrigation will, in hot weather, evaporate, and not return to the creek. On one occasion, when the season was very dry in that vicinity, and a number of Mr. Brewster's neighbors below him were complaining because they could get no water, it appears that he was turning the water upon a meadow of eighty to one hundred acres, so that it stood there from one to one and one-half inches deep ; and, as we have seen, what was not used was substantially wasted. This is obviously unreasonable." 2 (3d ed.) 756. Possibility for a Riparian Administrative System. This system of law would seem to offer a field for administrative legisla- tion; in fact, a readier field than the law of prior appropriation. Where the test is what is reasonable in each case, discretion must necessarily come into play, whereas where parties have exclusive rights measured by priority there is ('theoretically) little room for the exercise of discretion by administrative officers (though in prac- tice under the Wyoming system the water officials assume more or less to exercise discretion, and are thereby modifying the law of appropriation along the lines of the common law). Where the common law applies the test of reasonableness, legislation is apt and readily applied ; as, for example, in dealing with public service companies. The common law says their rates and regulations must be "reasonable," and accordingly public service commissions and similar bodies are created. Likewise under the new law of per- colating water "reasonable use" has become the test, and statutory regulation based thereon is being adopted. 3 As yet, however, there has been no attempt to provide a statutory system governing the reasonable use of water by riparian proprietors among themselves, 1 Mentone Irr. Co. v. Redlands Co., Am. St. Rep. 697, 93 N. W. 715, 60 . 155 Cal. 323, 100 Pac. 1082. L. R. A. 910. 2 Meng T. Coffey, 67 Neb. 500, 108 * Infra, sec. 1142. 756 Ch. 32. REASONABLE RIPARIAN USE. (3d ed.) 831 in jurisdictions applying that system, though there would seem a clear field for such legislation if desired. 4 * See Head v. Amoskeag Co., 113 of Blackstone, 200 Mass. 82, 85 N. B. U. S. 9, 5 Sup. Ct. Rep. 441, 28 L. 880, 18 L. R. A., N. S., 755. Ed. 889 ; Blackstone Mfg. Co. v. Town 757-764. (Blank numbers.) 832 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 765 CHAPTER 33. LIMITATIONS ON USE OF WATER BETWEEN RIPARIAN PROPRIETORS THEMSELVES (CONTINUED). USE CONFINED TO RIPARIAN LAND. 765. Introductory. 766. Use confined to riparian land. 767. Same. 768. What is riparian land Must touch the stream. 769. Receding from the stream Recession of land title. 770. Same. 771. Same. 772. Same. 773. Within the watershed. 774. Bounded by reasonableness in each case. 775. Conclusions as to riparian land. 776-794. (Blank numbers.) "(3d ed.) 765. Speaking generally, nonriparian owners are excluded en- tirely from rights in the stream, and riparian owners are given rights only for use on their own riparian land; they also cannot take the water to nonriparian land, whether it be their own or some- one else's. The point illustrates the philosophy of the riparian system, which presupposes a closely settled region with a commu,nity of people living along the banks of the stream itself and sharing the water between them, each for his own need alone. (3d ed.) 766. Use Confined to Riparian Land. The limitation to ripa- rian land arises, first, by the exclusion of nonriparian owners be- cause their lands have no access to the water; second, because he who has access (the riparian proprietor) can excuse the damage (which any taking may cause to the land of other riparian pro- prietors) only on the ground of a reasonable use of his own land. The water in the stream being nobody's property, the riparian pro- prietors, having alone access to the stream, could alone use it. 1 An.y use by one at all usually means damage to the others (that is, a lessening of the opportunities and benefits or natural ways in which 1 Supra, sec. 692 et seq. 766 Ch.33. EIPAEIAN LAND. (3d ed.) 833 the flow contributes to the potentialities of their estates), but such damage is damnum absque injuria so far (and only so far) as done in the reasonable use of the taker's own (the riparian) land. Non- riparian owners are thus first excluded because they have no access to the stream, and riparian owners (who have access) are then con- fined to use on their own land as the ground upon which the damage which the use causes to the estates of other proprietors becomes damnum absque injuria. This principle, that damage caused to a neighbor in reasonable use of one's own land (and there only) is damnum absque injuria, runs through the entire law of waters, as elsewhere more fully set forth J * and, with the fact of access, founds the limitation to riparian use. 2 The use of the water by any proprietor is not only limited to a reasonable amount, but the water must be used upon the riparian land, from ownership of which the right arises, and cannot be used upon distant or nonriparian land to the detriment of the riparian estate of any riparian owner. 3 Such land has no access to the stream, and ho right to the benefit of the water flows from its owner- ship. Water cannot, under the doctrine of riparian ownership, be used, to the detriment of the riparian estate of any riparian owner, la Supra, sec. 741 ; infra, sec. 1119. Co., L. E. 7 H. L. 697, and cases cited 2 "The theory upon which the right throughout this chapter. "It is also of a riparian owner to be protected plain that he was not the 'owner' nor in the use of the waters of a stream entitled to the 'exclusive use' of the to which his lands are riparian is that, water by virtue of being a riparian nature having given these lands the proprietor. As such riparian owner benefit of the flow and the natural the water was parcel of the land, and advantage of its use on the lands, he, as against other riparian owners, one riparian owner may not divert was entitled only to a reasonable use these waters to lands not riparian, to of the water upon the riparian lands, the injury of another riparian owner with no power to convey it elsewhere who can use them. The same prin- to the detriment of the riparian ciple has been applied, as we have owner below him on the stream." seen, to the use of waters as between Gutierrez v. Wege, 145 Cal. 733, 79 the owners of lands overlying a com- Pac. 449. One case speaks of the mon stratum of percolating waters." upper owner, and says he may irri- Miller v. Bay Cities W. Co., 157 Cal. gate, "but it is clear that in no case 256, 107 Pac. 115. can he, for that purpose as against 3 Gould v. Eaton, 117 Cal. 539, 49 the lower owner, use all the water of Pac. 577, 38 L. E. A. 181; Gould v. the stream Whatever may be Stafford, 77 Cal. 66, 18 Pac. 879; the right of the upper proprietor to Montecito etc. Co. v. Santa Barbara, use part of the water of the stream to 144 Cal. 578, 77 Pac. 1113; Same v. irrigate his riparian land, he has no Same, 151 Cal. 377, 90 Pac. 935; right to take any of it away to lands Broadmoor etc. Co. v. Brookside etc. not riparian," saying, because the sur- (Jo., 24 Colo. 541, 52 Pac. 792 ; Bed- plus belongs to the man below. Gould ' irater Co. v. Eeed (S. D.), 128 N. W. v. Stafford, 77 Cal. 66, 18 Pac. 879. 702; Swindon W. W. Co. V. Wilts etc. Water Bights 53 834 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 767 to irrigate nonriparian land. 4 Riparian owners will be enjoined from using the water on nonriparian lands owned by them. 5 The above authorities hold the rule the same whether the nonriparian use is for nonriparian owners, or for nonriparian lands belong- ing to a riparian owner. Water cannot be taken to irrigate dis- tant land merely because the claimant also owns riparian land. 6 Nor, to the detriment of the riparian estates of other owners, can one riparian owner divide his estate and give the portions now separated from the stream a right to use the water. 7 In stating the rule above we have used the words "to the detri- ment o'f the riparian estate of any other riparian owner," though there is doubt upon the propriety of the insertion and much in the authorities just cited which would support a rule that the non- riparian use is an injury per se, and that no actual or possible damage to the riparian estate of the complaining proprietor need be shown. 8 The rule against nonriparian use applies to "natural" uses (domestic uses) with the same force (if not more) as to other or "artificial" uses. 9 The rule is the same in the civil law as in the common law. 10 (3d ed.) 767. Same. An important illustration is that (except by grant, condemnation or prescription) water cannot, at common 4 Gould v. Stafford, 77 Cal. 66, 18 non compris dans le domains public, Pac. 879; Montecito etc. Co. v. Santa pouvait, pour 1'irrigation de ses pro- Barbara, 144 Cal. 578, 77 Pae. 1113; prietes non-riverain, disposer des eaux Same v. Same, 151 Cal. 377, 90 Pae. dont il avait 1'usage comme riverain, 935. et le negative est assez generalement 5 Anaheim Water Co. v. Fuller, admise." Adding that nevertheless 150 Cal. 327, 88 Pac. 978. another nonriparian proprietor can- 6 Boehmer v. Big Rock etc. Co., not on this ground prevent him from 117 Cal. 19, 48 Pac. 908; Gould v. getting a right of way for such Stafford, 77 Cal. 66, 18 Pac. 879. waters; that is, only other riparian See Alta etc. Co. v. Hancock, 85 Cal. proprietors can raise the point. Droit 219, 20 Am. St. Rep. 217, 24 Pac. Civile Francais, par Aubrey & Rau, 645; McClintock v. Hudson, 141 Cal. 4th ed., vol. Ill, p. 14, note 5. The 281, 74 Pac. 849; Anaheim W. Co. v. authors further expressly say (Id., Fuller, supra, 17, note 13) : "En d'autres termes, 7 See infra, sees. 769, 847. les proprietaires des fonds inter- 8 See the following chapters. mediaires ne peuvent pas, afin de, 9 Bathgate v. Irvine, 126 Cal. 135, faire reduire le volume d'eau pour 77 Am. St. Rep. 158, 58 Pac. 442; lequel le passage est demande, se Broadmoor etc. Co. v. Brookside etc. prevaloir des droits des autres river- Co., 24 Colo. 541, 52 Pac. 792. ains, qui ne s'opposeraient pas a la 10 "C'etait autrefois un point con- prise d'eau tell qu'elle a ete prati- tro'rerse, que celui de savoir si le quee." riverain d'un cours d'eau nature!, 763 Ch. 33. RIPARIAN LAND. (3d ed.) 835 law, be taken from a stream either by a riparian proprietor or a nonriparian proprietor for the purpose of sale off the land where taken. This has frequent application in cases where cities or city- supply water companies purchase a parcel of land along a stream and then seek to divert the stream to the city. Absolute injunc- tions are usually granted. A further consideration of this is left to later sections. 11 (3d ed.) 768. What is Riparian Land Must Touch the Stream. "It is only the tracts next the stream which are riparian lands, and the owners of such tracts are alone riparian owners." 12 They alone .have the right of access from which the right to take the water arises. "It is, of course, necessary to the existence of a riparian right that the land should be in contact with the flow of the stream. " 13 To be a riparian proprietor one must have access to the stream over the land he owns. "It is by virtue of that right of access that he obtains his water-rights." 14 Land bordering oa a stream except for a public highway along the bank is probably to be regarded as riparian whether the pub- lic owns the fee or only as easement in the roadbed. In Louisiana there is an extensive sj^stem of public levees to hold the rivers, and the public -passes along the levees as highways. The rule is there that land bordering upon the levee is riparian to the stream, though the levee be some distance back from the actual water; the levee is regarded as the real bank of the river. 15 Lands in the flood plain of a river give rise to a difficult state of facts. Within a broad shallow bottom the stream may meander to and fro, at times shifting its course from side to side but not filling the whole except in times of flood. The land abutting only 11 Infra, sec. 815 et seq., protec- have riparian rights there must be an tion against nonriparian use; sec. 847, actual water boundary of the land in grants; sec. 1123, percolating water. connection with which such rights are 12 Lux v. Haggin, 69 Cal. 255, 10 claimed." Axline v. Shaw, 35 Fla. Pac. 674. 305, 17 South. 411, 28 L. R. A. 391. 13 Lord Selborne in Lyon v. Fish- See, also, Buchannan v. Ingersoll Co., mongers' Co., L. R. 1 App. Gas. 673, 30 Ont. Rep. 456. italics ours. See Strong v. Baldwin, 1* Stockport W. W. v. Potter, 3 154 Cal. 150, 129 Am. St. Rep. 149, 97 Hurl. & C. 300, 10 Jur., N. S., 1005. Pac. 178, 'dictum contra, but deal- i 5 Hart v. Board of Commissioners, ing with what was in fact a different 54 Fed. 559. See McCloskey v. Pac. matter. (See infra, see. 845, grant Coast Co. ; 160 Fed. 794, 87 C. C. A. inter partcs.) "In order for one to 568. 836 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 769 on the outer rim of such a bottom was held 16 to be riparian when the stream is swollen. On the other hand when the stream is partly dry, the dry spots of what is bed only in time of flood, now are on the bank. Such bottom land alternating between the char- acter of bed and of bank with the alternating water stage, has been held to be riparian land while dry. 17 In the same case it is left open whether, in determining what land is riparian, a river is to be considered only with regard to the surface flow, or whether lands abutting upon the wider space through which the subflow extends, are also to be considered riparian though not touching the surface flow. That is, whether land abutting upon the underflow is equiva- lent to abutting upon the stream. 18 That such land is riparian seems to be held in a later case. 19 The bed of the stream is not riparian land, nor is one owning only the bed a riparian proprietor. This was held in Lux v. Hag- gin, 20 with regard to the owner of land all covered by a swamp through which a moving current, as of a stream, appeared. Land abutting on a bay, inlet or slough connecting with a stream has a right to use the water equal to the rights of those owning land abutting upon the stream itself. 21 The altitude of the bank does not affect the riparian character of the land touching the stream, nor does a high bank upon which the water cannot be brought without pumps deprive the owner of use of the water. 22 As between themselves, alone, parties to a contract, partition or other conventional arrangement may define riparian land as they like. 23 The present discussion is as to the definition given by law between independent riparian proprietors. (3d ed.) 769. Receding from the Stream Recession of Land Title. Looking, for the present, only to land title, all land is, as an out- 16 Ventura etc. Co. v. Meiners, 136 Co. (1910), 157 Cal. 256, 107 Pac. Cal. 284, 89 Am. St. Rep. 128, 68 115. Pa c. 818. 20 69 Cal. 255, at 413, 10 Pac. 674. 17 Anaheim etc. Co. v. Fuller, 150 91 m,,^ To /-, i n ^ r*! 337 ss T>O Q7 1 1 T T? A Turner v. James Canal Co. TJ ' Vs in9 (1909), 155 Cal. 82, 132 Am. St. Rep. is i a '-f m-70 v,fl 59 99 Pac - 520 > 82 L - K - A v N. S., is See infra, sec. 1078, subflow. 4 ', , 7 . r ' 82q 19 Where an intermittent stream 01 ' 17 Ann ' Las> 8 * 6 ' diffuses itself underground through a 22 Charnock v. Higuerra, 111 Cal. valley, valley owners are riparian to 4 J, 8 52 Am - St - Re P- 195 > 44 Pac - the stream though not touching its -^1> ^2 L. R. A. 190. surface channel. Semble, Hudson v. 23 Strong v. Baldwin (1908), 154 Dailey, 156 Cal. 617, 105 Pac. 748. Cal. 150. See infra, sees. 845, 846, See, also, Miller v. Bay Cities Water alienation. 770 Ch. 33. EIPAEIAN LAND. (3d ed.) 837 side limit so fax as title is alone concerned, riparian, which has unbroken access to the stream at the time of use thereon. It has access if there is no land intervening between it and the stream belonging to some other person. It is all that land of the bank- owner extending back from the stream until his land continuity ends; that land from the end of which the owner may pass con- tinuously over his own land to the stream without having to go upon land not owned by him. All such land at the time of use has access to the stream, and is (so far as land title affects the ques- tion) riparian. The past history of the title has no bearing upon this simple question of physical fact of access at the time of use, for such land at that time has access and is riparian as regards title, whether held in one parcel from time immemorial, or built up of numerous small contiguous parcels acquired at different times. (Remembering always that use on even riparian land must be reasonable, and that the land must, as a further test, lie within the watershed, as hereafter discussed.) We have stated that the ownership at time of use alone governs the question of title, because upon principle we think this clear; but the authorities are by no means unanimous. That the boundary at time of use governs to exclude land formerly but not then owned, there is no conflict. Land which was once part of an abutting tract but was severed therefrom by sale ceases, while so severed, to be riparian for the purpose of use thereon after the sale, since its right of access is lost. 24 But that the boundary at times of use governs to include contiguous land then owned by the bank owner, being one of several contiguous parcels in a chain reaching to the stream but acquired at different times, is a point upon which the authorities do not agree. (3d ed.) 770. Same. Upon this point the Nebraska court has held that riparian land stops at the end of a single original entry of 24 Stockport W. W. v. H. Potter riparian rights therein." Mr. Justice (1864), 3 Hurl. & C. 300, 10 Jur. N. Shaw, in Anaheim W. Co. v. Fuller, S., 1005; Alta L. Co. v. Hancock, 85 150 Gal. 327, 88 Pae. 798, 11 L. R. Cal. 229, 20 Am. St. Rep: 217, 24 A., N. S., 1062. What the effect of Pac. 645 ; Hudson v. Dailey, 156 Cal. a declaration in the conveyance to the 617, 105 Pac. 748. contrary would be, see infra, sec. 847. "If the owner of a tract abutting As against the grantor, his successors upon a stream conveys to another a and privies, a water-right may be part of the land not contiguous to the conveyed with the severed portion, stream, he thereby cuts off the part but not as against other riparian so conveyed from all participation in owners strangers to the transaction, the use of the stream and from 838 (3d ed.) Pt. IV. THE COMMON LAW OF EIPABIAN EIGHTS. 770 the land from the government when the land was 'taken up from the public domain, and that subsequent entries or purchases of contiguous land cannot extend* the riparian character thereto. 25 The court relied for this on LUX v. Haggin. 1 The passage in Lux v. Haggin 2 is: "If, however, lands have been granted by patent, and the patent was issued on the cancellation of more than one certificate, the patent can operate by relation (for the purpose of this suit) to the date of those certificates only, the lands described in which border on the stream." This was said "for the purpose of this suit," namely, relating back against an appropriator to determine the dates of priority between the rival land grants and the water appropriation. Some land entries had been made before, and some after, Haggin 's appropriation. The court in Lux v. Haggin distinctly limited the statement to the pur- pose of the case, which was, that only riparian land in private title at the date of an appropriation of water could claim priority for its riparian right, being merely a reaffirmance of the principle discussed in Osgood v. Water Company, cited and relied on, Lux v. Haggin saying: 3 "It was there held that .... the rights of the pre-emption claimant, as against an appropriator, date only from his patent or certificate of purchase." Some of plaintiff's land entries which did not border on the stream had been joined to the stream by entry of the intervening land, such junction being ef- fected after the water had already been diverted while the inter- vening land was yet public. The question was as to the date of the entries, not as to their extent. Lux y,. Haggin consequently was not at all holding as to the extent of riparian land at common law be- tween riparian proprietors, but holding that the riparian right as against a subsequent appropriator relates back only for the purpose of the land bordering on the stream whose certificates (or entry 4 ) ex- isted at the date of the appropriation ; a prior appropriation prevail- ing against a later entry. This is, of course, a proper holding. 5 It 25 Crawford v. Hathaway, 67 Neb. back to the certificates (the contracts 325, 108 Am. St. Eep. 647, 93 N. W. of the plaintiffs and their assignors 781, 60 L. E. A. 889. having been fully performed), so as 1 69 Cal. 255, 425, 10 Pac. 674. to. protect them in their title to the 2 We quote the concluding sentence, lands, with all their incidents. As- which sums up the whole passage. suming that the rights of these 3 At page 438. In regard to the parties are to be determined by the Osgood case see supra, sec. 261. decision of the question, Did the * See supra, sec. 261, prior settlers. plaintiffs acquire a, right to their 5 Lux v. Haggin says: "Here the lands before the defendant appro- plaintiffs have patents which relate priated the waters? the patents of the 771 Ch. 33. EIPAEIAN LAND. (3d ed.) 839 decides nothing as to the extent of riparian land at common law, but only enforces the right of the prior appropriajor on public land against later entries of the land. It held that the entry of new riparian land by Lux could not thereafter affect Haggin's appro- priation, but decided or said nothing about Lux's right to use water on such new land as against other riparian proprietors. 6 For the court says in Lux v. Haggin: "This cause was not tried on the theory that defendant was a riparian owner," adding that there was not even a pretense of such claim by defendant. 7 The Kansas court, upon the same authorities as the Nebraska court, decided that the extent of riparian land as between riparian proprietors is not controlled by government subdivisions. 8 Nor does the California court accept the rule that a governmental entry bounds riparian lands where the rights of appropriators inter- vening between successive entries are not involved. This test of governing riparian character by governmental en- tries arose from a plain misunderstanding of Lux v. Haggin and is indefensible on principle. It is not a common-law test at all, for in most common-law jurisdictions governmental entries are un- known. (3d ed.) 771. Same. The California decisions, while not controlled by governmental subdivisions, lean toward holding the extent of riparian land to the smallest parcel touching the stream in the history of the title while in the hands of the present owner. Pur- chase of contiguous land does not, thus, make it riparian, whether of new land never before owned, or of land formerly part of the same parcel severed by sale and then bought back. Thus, in Boeh- mer v. Big Rock Irr. Dist. 9 it is said, ''Mere contiguity cannot extend a riparian right." This, of course, is unsound, if the riparian right arises from access to the stream, since contiguity plaintiffs related to the certificates of riparian owner .in reply could offer purchase as against the defendant's certificates of a still earlier date; and appropriation." Lux v. Haggin, 69 the court held that he could, but that Cal. 430, 10 Pac. 674. an earlier certificate not touching the 6 See 69 Cal. 311, 10 Pac. 674. stream would not prevent the diver- 7 69 Cal. 311, 10 Pac. 674. The sion, if not joined to the stream until matter arose as a question of evidence. after the diversion had already taken In his case in chief the riparian place. owner showed land titles of a certain 8 Clark v. Allaman, 71 Kan, 206, date, and the question was whether, 80 Pac. 571, 70 L. R. A. 971. after the appropriator had showed an 117 Cal. 27, 48 Pac. 908. earlie* diversion on public land, the 840 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 771 does not extend, but gives and founds the right. The court viewed it as a question of extending the right of the originally owned land to that newly bought, when, on the contrary, the newly bought land has an original right of its own just because of its acquir- ing access or contiguity to the stream. The opinion also cited the passage from Lux v. Haggin above quoted, and makes the same mistake as to its meaning; namely, the passage referred to priority between successive, Entries of public land by a riparian owner as against an intervening appropriator on public land, and had no reference to ripp^ian "owners between themselves. 10 The same view is taken in a more. recent case, 11 saying that land conveyed and severed from a stream can never again be regarded as riparian, although it may thereafter be reconveyed to the per- son who owns the part abutting on the stream so that the two tracts are again held in one ownership, citing again the passage from Lux v. Haggin above referred to. The reconveyance in the case was made after the suit was brought, which probably dis- tinguishes the case from the rule it lays down. Such a rule would impede the settlement and irrigation of lands, enforcing a restric- tion which may make it impossible ever to put the full capacity of a stream to use where subdivision and sale and repurchase have cut up the historical continuity of title of tracts, so as to leave merely narrow strips alone riparian. The quantity of riparian land in the State would be continually and irrevocably dwindling. Whether land is riparian could never be told without an abstract of title. It would work in restraint of alienation. It is not demanded in reason, since the riparian use must not be unreasonable in its character, whatever the extent of the riparian land. It is not con- sistent with the views expressed in the opinion in Alta etc. Co. v. Hancock, 12 where it is said that the riparian right extends "to each and every tract [1280 acres in that case] held as an entirety, border- ing upon the stream, whatever its extent," subject to the restriction of reasonable use with due regard to the use required by the other proprietors. It is not consistent with the simple principle that the riparian right arises out of access and extends, as concerns title, 10 In Lux v. Haggin, the appropri- longed to the riparian owner? See ation. intervened between the various infra, sec. 814 et seq. entries, but in Boehmer v. Big H Anaheim Water Co. v. Fuller, Rock Co. the appropriation was 150 Cal. 327, 88 Pac. 978, 11 L. R. subsequent to all the land entries. A., N. S., 1062. How could an appropriator properly 12 85 Cal. 230, 20 Am. St. Rep. 217, Question how much riparian land be- 24 Pae. 645. 771 Ch. 33. EIPAEIAN LAND. (3d ed.) 841 to all land having access *o the stream. It is founded on a mis- interpretation of Lux v. Haggin. It is emphatically rejected in Oregon in the well-considered case quoted at length in a succeeding section 13 (and approved by the supreme court of Kansas), 14 where the rule is laid down as set forth at the beginning of this section; viz., that all land may, so far as title is the test, be riparian, which is part of a tract in one ownership abutting upon a stream and having access to it exclusively through land of the same owner (subject, always, to the use thereon being reasonable in degree). The following is a statement of the general common law: "If riparian property becomes divided between two owners, so that one portion no longer adjoins the stream, that portion no longer retains any riparian rights. 15 Conversely, land which adjoins riparian land may become itself riparian by becoming united there- with in ownership. ' ' 16 Summing up the authorities: the new land, with the old, is held riparian during the union as one entire holding, in California, 17 Kansas, 18 and Oregon. 19 Such is stated as the common law of Eng- land, 20 and is the civil law. It is said not to be riparian, though dur- ing the union into one, in some cases in California 21 and Nebraska, 22 and Texas. 23 In these latter, however, the point was but dictum, and founded upon a misunderstanding of a passage in Lux v. Haggin ; and a very recent California case now lays down the rule in general terms that all whose lands have access to the stream in its natural situation have a right to make a reasonable use of the water {< upon the lands so situated." 2 * As the same question arises in the civil law, a statement of the civil law may be of some interest. The French law is: "To solve the question what is contemplated by riparian land, one must look 13 Jones v. Conn, 39 Or. 30, 87 Am. 19 Jones v. Conn, 39 Or. 30, 87 Am. St. Kep. 634, 64 Pac. 855, 65 Pae. St. Rep. 634, 64 Pac. 855, 65 Pac. 1068, 54 L. E. A. 630. 1068, 54 L. E. A. 630. 14 Clark v. Allaman, 71 Kan. 206, Salmond on Torts p. 252. 80 Pac. 571, 70 L. E. A. 971. 21 Boe hmer v Big Eock Irr. Dirt., j. TTT TTT T> x H7 Cal. 27. 48 Pac. 908: Anaheim 15 Citing Stockport W W. v Pot- w c p u 15Q Cal 327 8g ter (1864), 3 Hurl. & C. 300, 10 Jur., p&c 97g> R L R ' A N g> 1Q6 ' 2> N. S., 1005. 22 Crawford Co. v. Hathaway, 67 16 Salmond on Torts, p. 252. (An N e b. 325, 108 Am. St. Eep. 647, 93 English authority.) N. W. 781, 60 L. E. A. 889. 17 Alta etc. Co. v. Hancock, 85 Cal. 23 Watkins L. Co. v. Clements, 98 230 20 Am. St. Eep. 217, 24 Pac. Tex. 578, 107 Am. St. Eep. 653, 86 645' S. W. 733, 70 L. B. A. 964. 18 Clark v. Allaman, 71 Kan. 206, 24 Hudson v. Dailey, 156 Cal. 617, 80 Pac. 571, 70 L. E. A. 971. * 105 Pac. 748. 842 (3ded.) Pt. IV. THE COMMON LAW OF KIPAEIAN EIGHTS. 772 to the state of things at the time the claim of use is made. Con- sequently, when the proprietor of a riparian estate has increased it by new acquisitions, or the owner of an estate separated from the flow of a stream has acquired the intervening land joining this estate with another one bordering on the stream, the right to use the water may be claimed for all the parcels thus united into one. ' ' 25 (3d ed.) 772. Same. That augmentation of a riparian estate should permit a reasonable use on the new land, having always in mind the requirements of other riparian owners, is a part of the com- mon-law foundation of the riparian right, viz., that the rights of riparian owners between themselves each to make a reasonable use of his entire land having natural access to the stream depend upon the surrounding circumstances and vary with the conditions. That riparian land varies by diminution when part is sold off, is estab- lished; and so it expands by adjacent purchase. In both cases this leads to uncertainties from time to time, but as much so in the former, where the rule is not doubted, as in the latter. The objection upon the ground of making the right vary by increase is of no more force than in cases of decrease. The variation being to secure equality and reasonable use, the objection disappears in view of the fact that use on the new land (though riparian) would be permitted only if the court (or jury) is convinced that such en- larged use is not unreasonable, and only in clearest cases that no unreasonable damage is done to other owners or their estates. For example, an apportionment may have been made between riparian owners where one riparian owner owns fifty acres and another five hundred acres, all irrigable, and, other things being equal, the latter was given five hundred inches of water and the former only fifty. A year later the former buys four hundred and fifty acres 25 Droit Civile Francais, by Au- un fonds qui j touche, le droit a brey & Rau, 4th ed., vol. Ill, p. 48: 1'usage des eaux peut etre reclame ("Pour resondre la question de ce pour 1'ensemble des heritages aiirsi qu'il faut entendre par fonds reunis et en seul.") Citing authori- riverains, on doit s'attacher a ties, viz.: Daviel II, 586; Bertin, Code 1'etat des lieux tel qu'il existe des Irrigations, Nos. 70 to 74; au moment ou est formee la re- Demolombe, XI, 152; Limoges, 9 clamation tendant a 1'usage des Aout 1838; "Dalloz, 1839, 2, 37; eaux. Ainsi, lorsque le proprietaire contra, Duranton, V, 235; Prudhon, d'un fords riverain 1'a augmente par Ihi Domaine Public IV, 1426; Du de nouvelles acquisitions, ou que le Curroy, Bonnier et Eoustam, II, 271. proprietaire d'un fonds separe de Other civil-law authorities are quoted cours d'eau en opere la jonction avec infra, sec. 1627. 3 773 Ch. 33. RIPARIAN LAND. (3d ed.) 843 adjoining and both now own the same amount of land and have the same needs. Is it in consonance with the principle of equality to permit the one to practically monopolize the whole stream, when their needs are now equal? It would clearly not be reasonable in all cases to redivide the stream by halves, for expenditures or change of position in reliance upon the former division becomes an important factor in deciding what is reasonable under the new conditions. But that is a matter for the trial judge or jury to consider, and if he is still convinced on all the facts that a larger share can be apportioned for the other owner's now larger area without doing unreasonable detriment, then, if we are correct, both justice and the law require that he should so adjudge. 1 (3d ed.) 773. Within the Watershed. Whether the riparian land extends to all that contiguous tract in one ownership extending back from the stream, and having access to it, at the time of use, or only to the smallest such tract in the history of the claim- ant's title, in either case the tract may recede far from the stream, and then a further restriction arises. While the boundary line (however computed) is the outside limit, it is not the sole test. 2 As the land recedes from the stream under the same ownership, it is a somewhat unsettled question when it ceases to be riparian in- side of the above considered boundary line. There are two rules held by different courts (which, for convenience, we call the Cali- fornia Rule and the Oregon Rule), viz.: (1) The California Rule, that it ceases within his boundary at the top of the watershed. (2) The Oregon Rule, that it remains a question of fact in each ease depending upon the reasonableness of effect of use thereon upon other proprietors. The rule stated by the California "court is that riparian land stops with the watershed. Water used within a watershed surely finds its way back to the stream. 3 The court says: 4 "The prin- cipal reasons for the rule confining riparian rights to that part of lands bordering on the stream which are within the watershed 1 See supra, sec. 752. 3 Montecito etc. Co. v. Santa Bar- 2 Bathgate v. Irvine, 126 Cal. 135, b ara 144 Cal. 578, 77 Pac. 1113, per 77 Am. St. Rep. 158, 58 Pac. 442; Henshaw j Boehmer, v. Big Rock etc. Co., 117 Cal. 19, 48 Pac. 908; Gould v. Staf- * Anaheim etc. Co. v. Fuller, 150 ford, 77 Cal. 66, 18 Pac. 879. Se 3 Cah 327> 8 8 Pac. 978, 11 L. R. A. Alta etc. Co. v. Hancock, 85 Cal. 219, N q 1f1fi0 20 Am. St. Rep. 217, 24 Pac. 645. "' '' 1( 844 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 773 are that where th water is used on such land it will, after such use, return to the stream, so far as it is not consumed, and that as the rainfall on such land feeds the stream, the land is, in con- sequence, entitled, so to speak, to the use of its waters." Con- sequently, under the California rule, land beyond a watershed, though within the continuous boundary, is nonriparian. 5 In the recent case of Anaheim Water Co. v. Fuller 6 the court says : ' ' Land which is not within the watershed of the river is not riparian thereto, and is not entitled as riparian land to the use or benefit of the water from the river, although it may be a part of an entire tract which may extend to the river." And in a still later case says : 7 ' ' Moreover, it is without dispute in the case, and so de- clared upon the appeal in the 144 Cal. supra, that the lands upon which the waters are derived are valueless for agricultural pur- poses, and the waters are carried for use to cities, towns and fertile lands beyond the watershed. A riparian proprietor's claim to make such use of the waters of a stream is of course without legal foundation." The Kansas court accepted this same rule, 8 saying: "In 3 Farn- ham on Waters, 1903, it is said: 'All conceptions of riparian land lead to the conclusion that it is land which is tributary to an<5 lying along a watercourse, and as soon as the "divide" is passed and the watershed of another stream is reached, the land cannot be regarded as riparian with reference to the former stream, and since the right to water depends upon the land being riparian, the destruction of the riparian character destroys the right to irrigate. ' Within these limits the principle of equality of right announced above should .control the use of water for irrigation purposes by those whose land is affected by the presence of the stream irre- spective of the incidental matter of governmental subdivision of the land." 5 Chauvet v. Hill, 93 Cal. 407, 28 Cal. 618, 93 Pac. 881; Miller v. Bay Pac. 1066; Silver Creek etc. Co. v. Cities Co., 157 Cal. 256, 107 Pac. 115, Hayes, 113 Cal. 142, 45 Pae. 191; 6 150 Cal. 327, 88 Pac. 978, 11 L. Wiggins v. Museupiabe Water Co., R. A., N. S., 1062. 113 Cal. 182, 54 Am. St. Rep. 337, 45 7 Montecito etc. Co. v. Santa Bar- Pac. 160, 32 L. R. A. 667 ; Bathgate bara, 151 Cal. 377, 90 Pac. 935. v. Irvine, 126 Cal. 136, 77 Am. St. 8 Clark v. Allaman, 71 Kan. 206, Rep. 158, 58 Pac. 442; Southern Cal. 80 Pac. 571, 70 L. R. A. 971. See, etc. Co. v. Wilshire, 144 Cal. 68, 77 also, McCarter v. Hudson W. Co., 70 Pac. 767; Pomona W. Co. v. San An- N. J. Eq. 695, 118 Am. St. Rep. 754, tonio W. Co. (dictum), (1908), 152 65 Atl. 489. 773 Ch. 33. RIPARIAN LAND. (3d ed.) 845 In the case of Anaheim W. Co. v. Fuller 9 a distinction was made between the major watershed of a stream system, and the minor watershed of any individual tributary. It was held that water- sheds of branch streams must be considered separately from each other and from the watershed below their junction. Water taken in the watershed of a branch must be used within the watershed of that branch. It will not fulfill the rule for use within the water- shed to use it within the watershed of the major stream system if the surplus would not flow back to other owners on the branch from which taken, but flow to the main stream through other branches. Mr. Justice Shaw said: "Where two streams unite, we think the correct rule to be applied, in regard to the riparian rights therein, is that each is to be considered as a separate stream, with regard to lands abutting thereon above the junction, and that land lying within the watershed of one stream above that point is not to be considered as riparian to the other stream. The fact that the streams are of different size, or that both lie in one general watershed, or drainage basin, should not affect the rule, nor should it be changed by the additional fact that the two watersheds are separated merely by the summit or crown of a comparatively low table-land, or mesa, as it is called in the evidence, and not by a sharp or well-defined ridge, range of hills, or mountains. The reasons for the rule are the same in either case. ' ' 10 150 Cal. 327, 88 Pac. 978, 11 L. sonable user by the upper owner; it R. A., N. S., 1062. is a confiscation of the rights of the 10 The limitation to the watershed lower owner; it is an annihilation, probably got into the California law so far as he is concerned, of that from the English case of Swindon portion of the stream which is used W. W. Co. v. Wilts etc. Co., L. R. 7 for those purposes; and that is done, H. L. 697, which is cited in a num- not for the sake of the tenement of ber of the California eases. Lord the upper owner, but that the upper Cairns, Chancellor, said in the Swin- owner may make gains by alienating don case: "But the use which has the water to other parties who have been made by the appellants of the no connection whatever with any water, and the use which they claim part of the stream It is a the right to make of it is not for the matter quite immaterial whether, as purpose of their tenements at all, riparian owners of Wayte's tenement, but is a use which virtually amounts any injury has now been sustained, to a complete diversion of the stream, or has not been sustained, by the as great a diversion as if they had respondents. If the appellants are changed the entire watershed of the right, they would, at the end of country, and in place of allowing the twenty years, by the exercise of this stream to flow toward the north, rlaim of diversion, entirely defeat the had altered it near its source, so as incident of property, the riparian to make it flow toward the south. right of Wayte's tenement. That is My lords, that is not a user of the a consequence which the owner of stream which could be called a rea- Wayte's tenement has the right to 846 (3ded.) Pt. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 774 (3d ed.) 774. Bounded by Reasonableness in Each Case. The Oregon court in a well-considered case held that, within the outside limit of the owner's last boundary line (and placed that line where his contiguity to the stream stops, regardless of the history of his title or subdivision of his tract into parcels acquired at different times) the rule as to the watershed as an inside limit is but one of reasonableness depending upon the effect, under the evidence in each case, of the use upon complaining proprietors, and not a hard-and-fast rule. Within the boundary of single abutting owner- ship, what land the water may be used upon is held subordinate to what is reasonable -use in each case. All such land is considered riparian, but even riparian use must be reasonable, so that the fixing of an inside limit is held not a question of what lands are riparian, but of what use on even riparian lands is a reasonable use. Consequently, under the Oregon rule, how far back from the stream a continuous tract may be irrigated depends entirely upjon the question whether the use complained of is unreasonable on the proof, in its effect upon the land of the complaining proprietor. This is also undoubtedly the rule laid down in some California cases, and in general terms has been approved in other jurisdictions also. 11 come into the court of chancery to 98 Tex. 578, 107 Am. St. Eep. 653, get restrained at once by injunction 86 S. W. 733, 70 L. K. A. 964. or declaration as the case may be." In a Wisconsin case it is said: It is evident that the decision "The place where it may use the turned, not on the fact of use water for power is restricted only by beyond the watershed, but on the fact its duty to refrain 'from injuring of sale of the water and use on the others. The court is satisfied of the lands of other persons. It did not correctness and justice of its judg- involve nor say anything about use ment. It is not deemed to be incon- beyond a watershed upon the taker's sistent with anything previously said own land constituting part of a con- or decided by this court, or with the tinuous tract touching the stream. decision of any other court to which ll California. Alta Co. v. Han- attention has been called. It is tie- cock, 85 Cal. 219, 20 Am. St. Rep. lieved to be grounded impregnably 217, 24 Pac. 645; Charnock v. upon that widely applied mandate of Higuerra, 117 Cal. 471, at 477 et seq., the law, "Sic utere tuo ut alienum non 44 Pac. 171. laedas." Green Bay C. Co. v. Kansas. See Clark v. Allaman, 71 Kaukanna W. P. Co., 90 "Wis. 370, Kan. 206, 80 Pac. 571, 70 L. E. A. 48 Am. St. Eep. 945, 61 N. W. 1121, 971. 63 N. W. 1019, 28 L. E. A. 443. In New TorTc. Standen v. New Eo- the United States supreme court, Mr. chelle Co., 91 Hun, 272, 36 N. Y. Justice Holmes said in Hudson W. Supp. 92, holding that the relative Co. v. McCarter (1908), 209 U. S. amount of watershed owned by ad- 349, 28 Sup. Ct. Eep. 529, 52 L. Ed. joining riparian owners will not 828, that "a riparian proprietor has affect their individual rights to a no right to divert waters for more proper use of the stream. than a reasonable distance from the Texas. Watkins Co. v. Clements, body of the stream." 774 Ch. 33. RIPARIAN LAND. (3d ed.) 847 We quote at length from this Oregon decision. 12 Mr. Chief Jus- tice Bean (now upon the Federal bench) delivered the opinion. The court says: "But as we understand the law, lands bordering on a stream are riparian, without regard to their extent. After a considerable search, we are unable to find any rule determining when part of an entire tract owned by one person ceases to be riparian." And on rehearing: "The plaintiffs insist that the court erred in not holding that the right of a riparian proprietor to use the waters of a, stream for irrigating purposes does not extend beyond the watershed, or to lands not first segregated and sold by the gov- ernment. This question was examined with %reat care before the opinion was formulated. No authorities are cited or arguments advanced in the petition for rehearing not then fully examined and considered, and therefore the conclusion heretofore reached will be adhered to." It is not clear, on the facts of the case, whether the land, though over a low ridge, was or was not within the major watershed of the stream; but under the recent California case cited above, it would have made no -difference in California. It would have been held nonriparian in either case. The court discusses the California decisions as follows: "It would seem, therefore, that any person owning land which abuts upon or through which a natural stream of water flows is a riparian proprietor; entitled to the rights of such, without regard to the extent of his land, or from whom or when he acquired his title. The fact that he may have procured the particular tract washed by the stream at one time, and subsequently purchased land adjoining it, will not make him any the less a riparian pro- prietor, nor should it alone be a valid objection to his using the water on the land last acquired. The only thing necessary to en- title him to the right of a riparian proprietor is to show that the body of the land owned by him borders upon a stream. This being established, the law gives to him certain rights in the water, the extent of which is limited and controlled less by the area of his land than by the volume of water and the effect of its use upon the rights of other riparian proprietors. By virtue of the owner- ship of land in proximity to the stream, he is entitled to a rea- sonable use of the water, which is defined as ' any use that does not work actual, material and substantial damage to the common right 12* Jones v. Conn, 39 Or. 30, 87 Am. St. Rep. 634, 64 Pac. 855, 65 Pac. J068, 54 L. R. A. 630. 848 (3ded.) Pt. IV. THE COMMON LAW OF EIPAEIAN RIGHTS. 774 which each proprietor has, as limited and qualified by the precisely equal right of every other proprietor. ' 13 In the determination of what will be considered such a use in a particular case the char- acter and extent of the land, its location, and the time of acquiring the title may all become, and are, no. doubt, important factors to be considered; but they are not controlling, and each case must depend entirely upon its own facts and circumstances. The case of Boehmer v. Irrigation Dist. 14 would seem to make the extent of riparian rights depend upon the source of title, rather than the fact of title ; but in Water Co. v. Hancock, 15 it was expressly held that all land bordering upon a stream which is held by the same title in that instance consisting of 1,280 acres is riparian, and no distinction was made on account of the source of title. Again, in Wiggins v. Water Co. 16 and Bathgate v. Irvine, 17 the right of a riparian proprietor to use the waters of a stream for irrigation was limited to the watershed. But, as we understand these cases, the court in each instance was determining the rights of the parties then before it, and not attempting to lay down an inflexible rule as a guide in all cases. Nothing more was held or decided than that under the claim alone of riparian rights the owner of land cannot, to the injury of another riparian proprietor, take the water be- yond the watershed, or onto lands held by a title different from the title of those through which the stream flows ; and this all will concede. The right to make a reasonable use- of the water of a stream is a right of property, depending on the ownership of the land abutting on or through which the stream flows; and whether a given use is reasonable or not is a question of fact to be deter- mined under the circumstances of each particular case. The right to use the water belongs to the owner of the land, and the extent of its exercise is not to be determined by the area or contour of his land, but by its effect upon riparian proprietors." This Oregon rule naturally follows from the doctrine of the riparian right as one arising out of access, to take the water as a privilege belonging to the owner of all land having access to the stream, where the taking does damage which is damnum absque injuria if done in the reasonable riparian use of another proprie- tor, or where the taking does no damage at all to the possibility of 13 Citing Kinney on Irrigation, sec. 16 Supra. 276. 17 126 Cal. 135, 77 Am. St. Rep. 14 117 Cal. 19, 48 Pac. 908. 158, 58 Pae. 442. 15 85 Cal. 219, 20 Am. St. Rep. 217. 24 Pac. 645. 775 Ch. 33. EIPAEIAN LAND. (3d ed.) 849 use by complaining proprietors. The California watershed rule may be regarded as based upon the same principle, and, as a mat- ter of practice, fixing a convenient rule of fact, drawn from ex- perience of what is unreasonable in its effect, since water taken beyond a watershed will not flow back to the stream and neces- sarily excludes pro tanto all use thereof by others. The char- acter of riparian land arises out of the fact of access to the stream through the land; the limitation to the watershed arises rather out of consideration of reasonable use by a riparian owner, even though his land be riparian by virtue of his access through it. (3d ed.) 775. Conclusions as to Riparian Land. (a) Water cannot be used on nonriparian land to the detri- ment of the riparian estate of a riparian proprietor. (&) To be riparian, land must touch the stream. (c) The riparian character of the land as it recedes from the stream stops when the continuity of ownership of the land is broken, because the proprietors of all land beyond have no access to the stream through such other land. Vice versa, all land is .riparian in title which at the time of use is one tract held in one ownership abutting the stream. (d) The extent of riparian land shifts with the boundary, con- tracting with a sale of part, and expanding with a purchase of contiguous land, since the right of access shifts correspondingly. The decisions upon this conflict, however. (e) If the boundary line is beyond a watershed, the riparian character of the land stops at the summit of the watershed. (/) Within the watershed the land must not be so distant that use thereon will be unreasonable in its effect upon the possibility of use of other riparian proprietors, under all the surrounding circumstances, such as extent of area, time of acquisition of land, and the various other aspects of each case. Shortly put, land to be riparian must at time of use be a con- tinuous tract under one ownership (regardless of the history of that ownership), touching the stream on one side and within the watershed on the other, and such that use thereon will not unrea- sonably interfere with the equally beneficial riparian use of other riparian proprietors. 776-794. (Blank numbers.)^ Water Bights 54 850 (3ded.) Ft. IV. THE COMMON LAW OF KIPARIAN EIGHTS. 795 CHAPTER 34. PROTECTION OF THE RIGHT AGAINST OTHER RIPA- RIAN OWNERS. 795. Damage between riparian owners. 796. Possible damage to use of complainant's land must be shown. 797. Authorities quoted. 798. Reductio ad dbsurdum, 799. Damage to a reasonable degree not wrongful. 800. Damage to excess of reasonable degree. 801. Where the damage is during complainant's nonuse. 802. Declaratory decree. 803. Conclusions. 804-813. (Blank numbers.) (3d ed.) 795. Damage Between Riparian Owners. We now discuss the right of a riparian owner in the commonest form in which it has produced litigation ; that is, with regard to the question when r if at all, must a complaining riparian owner show damage, and what kind or how extensive damage, to secure either legal or equitable relief. In this chapter we consider this solely between riparian owners among themselves, leaving to the next chapter the consideration as between a riparian and a nonriparian owner. (3d ed.) 796. Possible Damage to Use of Complainant's Land must be Shown. The riparian proprietor does not make a prima facie case against another riparian proprietor where the former does not show any possibility of damage of any kind to the value of his estate or to the use thereof. It was once insisted that the stream must remain in its natural state undisturbed even by one riparian owner himself, and that any abstraction or diversion by one proprietor was wrongful to all below him. As to this it is said in Kent's Commentaries, in a well-known passage : l " Streams of water are ! intended for the use and comfort of man; and it would be unrea- sonable and contrary to the general sense of mankind, to debar any riparian proprietor from the application of water for domestic, agricultural or manufacturing purposes, provided the use of water 1 3 Kent's Commentaries, 429. Italics ours. 797 Ch. 34. BETWEEN RIPARIAN OWNERS. (3d ed.) 851 be made under the limitation that he do no material injury to his neighbor below him, who has an equal right to the subsequent use of the same water." In Lux v. Haggin 2 this is commented upon as follows: "It seems to us that the foregoing (although a very distinct statement of the general proposition) ought not to be taken literally, unless the words 'material injury' be impressed with a signification the equivalent of a substantial deprivation of capacity in a lower proprietor to employ the water for useful purposes." And this passage in Kent is restated in the supreme court of the United States, 3 further saying : ' ' No one can set up a claim to an exclusive flow of all the water in its natural state, and that what he may not wish to use shall flow on till lost in the ocean." Justice Story said : "The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not The law here, as in many other cases, acts with reasonable refer- ence to the public convenience and general good, and is not betrayed into narrow strictness subversive of common sense, nor into an extravagant looseness which would destroy private rights. The maxim is applied, 'Sic utere tuo ut alienum non laedas.' " 4 (3d ed.) 797. Authorities Quoted. Some other authorities may be quoted from numerous jurisdictions. In a late California case : 5 "In support of this position plaintiffs invoke the alleged common- law rule that a riparian owner upon a stream is entitled as of right to the full flow of the stream in its natural course through his land. The cases are numerous wherein the right of a riparian proprietor to have the stream flow to his land undiminished by any diversion made by an appropriator for use on nonriparian land has been de- clared. 6 - 8 It is obvious, of course, that, if this supposed rule were strictly enforced against riparian owners, as well as appropriators, 2 69 Cal. 255, 10 Pac. 674. riparian owner, knowing, they said, - 3 Howard v. Ingersoll, 13 How. how untenable it was; but only be- 381, 14 L. Ed. 189, Nelson, J. cause they claimed that defendant was 4 Tyler v. Wilkinson, 4 Mason, a nonriparian owner (in which, on 397, Fed. Cas. No. 14,312. the facts, the court held against plain- 5 Turner v. James Canal Co. tiff). (1909), 155 Cal. 82. 132 Am. St. Rep. 6-8 Citing Lux v. Haggin, 69 Cal. 59, 99 Pac. 520, 22 L. R. A., N. S., 396, 10 Pac. 674; Heilbron v. Last 401, 17 Ann. Cas. 823 (italics in- Chance etc. Co., 75 Cal. 121, 17 Pac. serted). Counsel filed a petition for 65; and Heilbron v. Fowler etc. Co., rehearing on the ground that they did 75 Cal. 432, 7 Am. St. Rep. 183, 17 not make this contention referred to Pac. 535. in the quotation, as against another 852 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 797 the waters of the streams in the State could not be used at all, but would flow to the sea, or until they disappeared in the sands and washes, without benefit to anyone, except in the few instances where flood waters might escape naturally and flow upon lands situated similarly to those of the plaintiffs. The rule is evidently not suited to the conditions of a dry climate such as we have in this State. It is accordingly well settled here that each riparian owner has a right to a reasonable use of the water, on his riparian land, for the irriga- tion thereof, and that the so-called common-law right of each to have the stream flow by his land without diminution, is subject to the common right of all to a reasonable share of the water. ' ' 9 In a Nebraska case 10 it is said : " As has been seen, the common law does not give to a riparian owner an absolute'and exclusive right to all the flow of the water from a stream in its natural state, but only the right to the benefit, advantage and use of the water flowing past his land in so far as it is consistent with a like right in all other riparian owners." In a case in the Federal court of Nevada, before the common law of riparian rights became rejected, it was said, after stating the leading authorities: "From these authorities it appears that the use which is unreasonable is such as works actual, material and substantial damage to the common right; not to an exclusive right to all the water in its natural state, but to the right which each proprietor has as limited and qualified by the precisely equal right of every other proprietor."' 11 Likewise in Eastern and other jurisdictions. The supreme court of Georgia recently said: "If the general rule that each riparian owner could not in any way interrupt or diminish the flow of the stream were strictly followed, the water would be of but little practical use to any proprietor, and the enforcement of such rule Would deny, rather than grant, the use thereof Riparian owners have a common right in the waters of the stream, and the necessities of the business of one cannot be the standard of the rights of another, but each is entitled to a reasonable use of the water with respect to the rights of others." 12 In a Minnesota case: ' ' The right of a party to the uninterrupted and full use of the water as it flows naturally past his land is not an absolute right, but a Citing cases. 2 Saw. 450, Fed. Cas. No. 14,370, 8 10 Crawford Co. v. Hathaway, 67 Morr. Min. Rep. 113. Italics ours. Neb. 325, 108 Am. St. Rep. 647, 93 12 Price v. High Shoals Co. (1909), N. W. 781, 60 L. R. A. 889. 132 Ga. 246, 64 S. E. 87, 22 L. R. A., 11 Union Min. Co. v. Dangberg, N. S., 684. 798 Ch. 34. BETWEEN RIPARIAN OWNERS. (3d ed.) 853 natural one, qualified and limited by the existence of like rights in others." 13 (3d ed.) 798. Reductio ad Absurdum. If it were not thus true that the complaining proprietor must show at least a possibility of dam- age to the use or value of his riparian estate, when contesting with another riparian proprietor, there would be absurd results, a re- ductio ad absurdum first suggested by Chief Justice Shaw of Massachusetts: 14 "The instruction requested by the plaintiff is, we think, founded on a misconception of the rights of riparian proprietors in watercourses passing through or by their lands. It presupposes that the diversion of any portion of the water of a running stream, without regard to the fitness of the purpose, is a violation of the right 1 of every proprietor of land lying below on the same stream, so that, without suffering any actual or perceptible damage, he may have an action for the sole purpose of vindicating his legal right." If this were true, the learned judge concludes, and a riparian proprietor could have such an action, ''then every proprietor on the brook to its outlet in the Nashua River would have the same; and because the quantity of diminution is not material, every riparian proprietor on the Nashua would have the same right, and so every proprietor on the Merrimac River to the ocean. This is a sort of reductio ad absurdum which shows that such cannot be the rule as was claimed by the plaintiff." In another leading case it is said: "This right to the benefit and advantage of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state. If it were, the argument of the learned counsel that every abstraction of it would give a cause of action would be irrefragable ; but it is a right only to the flow of the water, arid the enjoyment of it, subject to the similar rights of all the proprietors of the bank on each side to the reason- able enjoyment of the same gift of Providence. It is only, there- 1 fore, for an unreasonable and unauthorized use of the common \ benefit that an action will lie-; for such a use it will.'' 15 13 Red River Co. v. Wright, 30 (1908), 196 Mass. 597, 83 N. E. 310, Minn. 249, 44 Am. Rep. 194, 15 N. ]3 L. R. A., N. S.. 1044. W. 167. See, also, 123 Am. St. Rep. 14 Elliott v. Fitchburg Ry., 10 912, note. See, also, Mason v. Cot- Gush. (Mass.) 191, 57 Am. Dec. 85. ton (Colo.), 4 Fed. 792, 2 McCrary, 15 Embrey v. Owen, 6 Ex. 352, 20f 82; Baily v. Morland (1902), L. R. L. J. Ex. 212. 1 Ch. D. 649; McNamara v. Taft, 854 (3ded.) Pt. IV. THE COMMON LAW OF BIPAEIAN EIGHTS. 799 Streams flow for the benefit of all persons who have land ad- joining, and not simply for those persons only whose lands lie at the mouth of the stream. (3d ed.) 799. Damage to a Reasonable Degree not Wrongful. Not only is some showing of damage to complainant's estate, or to its value, a prerequisite to an action between riparian owners, but, further, the interference must be shown to go to an unreasonable extent. To a reasonable degree, it is a good defense to the proprie- tor complained of that he was acting in the use of his own riparian land. " It is a general rule in fact, a universal principle of law that one may make reasonable use of his own property, although such use results in injury to another, ' ' 16 and this is but one applica- tion of that rule. As discussed in a preceding chapter, what is a reasonable use by one proprietor to which another must submit, though it interferes with the use sought to be made by such other, is a question of fact depending upon the circumstances in each case, and the authorities have there been given at length. Under the doctrine of appropriation the right, being founded on priority, is exclusive to the extent of the priority, and any material interference with the prior use is wrongful. 17 But under the law of riparian rights no proprietor has an exclusive right against the other proprietors, and no use by another proprietor is wrongful unless it unreasonably exceeds the equality of right among all; in the absence of such excess any damage is damnum absque injuria. The fact that one proprietor's use or possibility of use is interfered with by another is not alone a wrong to him; it must be such interference as is in excess of the equal right of the proprietor complained of. "Each must submit to that de- gree of inconvenience and hardship in the exercise of his rights which results from the existence of like rights in others." 18 16 Katz v. Walkinshaw, 141 Cal. 18 Parker v. American etc. Co., 143, 99 Am. St. Rep. 35, 70 Pac. 663, 195 Mass. 591, 81 ' N. E. 468, 10 L. 74 Pac. 766, 64 L. E. A. 236. R. A., N. S., 584. See McFarland, J., See especially the discussion in this in Fisher v Peige (1902), 137 Cal. regard under the law of percolating 42 > 92 Am - s *- Rep. 77, 69 Pac. 618, water, infra, sec. 1118 et seq. 59 ^- A - 33 . 3 ' Each riparian proprietor is bound 17 Hill v. Smith, 27 Cal. 482, 4 to ma ke such a use of running water Morr. Min. Eep. 597, speaking dis- as to do as little injury to those be- paragingly of the other rule as one i ow him as is consistent with a which "tolerates and winks at some valuable benefit to himself. Evans v. indeterminate amount of injury" by Merriweather, 4 111. (3 Scam.) 492, the one to the other. 38 Am. Dec. 106. 3 799 ; Ch. 34. BETWEEN RIPARIAN OWNERS. (3d ed.) 855 In a recent California case it is said that "the determination as to what is the reasonable share of each riparian owner is a question of fact, to be decided according to the circumstances of the case," and that "an upper riparian proprietor is entitled to a reasonable use for irrigation, although it may diminish the flow to a lower proprietor, and put him to substantial inconvenience in his use of the stream. Thus in [certain cases] it was held that the upper proprietors could be allowed to take the whole stream for certain hours or days, at stated intervals, and that the use of the lower owner could be limited to the intervening periods," and held that the fact that plaintiff's low land would be greatly benefited by its overflow from an abutting stream during flood season does not entitle him to restrain diversion of a reasonable amount of water for irrigation by upper riparian owners, though such diversion would diminish such overflow. 19 Authorities to this effect from many jurisdictions are here quoted to show that the rule is general, and not confined to California nor to Western jurisdictions. A ruling in an Alabama case puts it: "The defendant had the right, in this form of action, to maintain the dam, even to the injury of the plaintiff, if there was a reasonable and proper use of the water." 20 In a case in Maine: "True, it is sometimes said that there must be no diversion of the waters of a stream; that the riparian proprietors above must allow the water to flow on in undiminished quantities, to the riparian proprietors below. But this is not a correct statement of the law. And the inaccuracy of the statement has often been pointed out. The true rule is that there must be no unlawful or unreasonable diminution or diversion of the water. " 21 In Massachusetts : ' ' The right of the owner of land to the use of a stream flowing through his premises, so far as such use is reasonable and conformable to the usages and wants with a like reasonable use by the other proprietors of land en the same stream above and below, is clear and indisputable. ' ' 22 Mr. Justice Cooley in Michigan thus states the rule : ' ' The question always is, not merely whether the lower proprietor suffers damage by the use of the water above him, nor whether the quantity flow- 19 Turner v. James Canal Co., 155 great loss by evaporation. North Cal. 82, 132 Am. St. Rep. 59, 99 Pac. Alabama etc. Co. v. Jones, 156 Ala. 520, 22 L. R. A., N. S., 401, 17 Ann. 360, 47 South. 144. Cas. 823. 21 Auburn v. W. Co., 90 Me. 576, 38 20 But damages at law will be Atl. 561, 38 L. R. A. 188. granted if the dam spreads out the 22 Fuller v. Chieopee etc. Co. (1860) water so unreasonably as to cause 16 Gray (Mass.), 43. 856 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 799 ing on is diminished by the use, but whether under all the circum- stances of the case the use of the water by one is reasonable and consistent with a correspondent enjoyment of the right by the other. " 23 It is laid down in New Hampshire : "It is well-settled law that in the use of a stream for domestic, agricultural, and manufacturing purposes, to which every riparian owner is entitled, there may of right be diminution, retardation or acceleration of the natural current, consistently with the common right, and which is implied in the right to .use it at all From the nature of the case, it is incapable of being defined to suit the vast variety of circumstances that exist ; but the rule is flexible, and suited to the growing and changing wants of communities. " 24 In New York : "Damage to a riparian owner caused by the erection of a mill damr by another riparian owner is to a reasonable degree damnum abs- que injuria," 25 and one riparian owner may make a reasonable use of the stream though it lessens the benefits therefrom derived by another riparian owner. 26 In Ohio: "No action can be sustained for any such use in the water, whereby the quantity is diminished in the stream or the water caused to flow more irregularly, or to flow back on the land of the proprietor on the stream above, unless the damage occasioned be real, material and substantial, arising from an unreasonable or improper use, appropriation, abstraction, or diversion of the water from its natural course or flow. " 27 In South Carolina: "For an injury to one owner incidental to a rea- sonable use of the stream by another there is no redress. It does not necessarily follow from either the decrease in the volume of the water due to its use by the upper proprietor or the increase due to the storage by the upper proprietor that there has been an un- reasonable use and therefore a right of action to the lower proprie- tor for any resulting injury. If it were the rule that the lower proprietor has the right to have the stream flow through his land in exactly its usual volume, the result would be to destroy the equality of right of all the proprietors of the land through which the stream flowed, and give to the lowest proprietor a monopoly of its use. ' ' 28 23 Dumont v. Kellogg, 29 Mich. 26 Thomas v. Brockney, 17 Barb. 423, 18 Am. Eep. 102. (N. Y.) 659. 24 Norway Co. v. Bradley (1872), 27 McElvoy v. Goble (1856), 6 Ohio 52 N. H. 86. St. 187. 25 Palmer v. Mulligan, 3 Caines 28 Mason v. Apalache Mills (1908), Rep. 308, 2 Am. Dec. 270. 81 S. C. 554, 62 S. W. 400, 871. 800,801 Ch. 34. BETWEEN EIPAEIAN OWNERS. (3d ed.) 857 And yet this is the thing which some California judges have called a "modification" of the common law when applied in Cali- fornia. 29 It is to this, and nothing else, that such California ex- pressions referred (improperly) as the California "modification" of the common law. (3d ed.) 800. Damage in Excess of Reasonable Degree. We have, in a preceding chapter, quoted from authorities holding that it is all a question of degree, what act of one proprietor is a wrong to another, that unreasonable degree being a question of fact in each case. Such excessive damage is wrongful. This rule is laid down by Mr. Justice Shaw in a recent California case: "Riparian owners have correlative rights in the stream, and neither is a trespasser against the other until he diverts more than his share, and injures and damages the other thereby. .... The rights in such cases are correlative, and if an injunction can issue at all therein, it can be only when one owner takes more than his due proportion, and dam- age to the other ensues from such excessive taking." 80 There is no presumption that use by a riparian owner is excessive. It depends wholly upon the evidence, 31 and complainant has the burden of proof. 32 (3d ed.) 801. Where the Damage is During Complainant's Nonuse. The riparian right is not affected by nonuse, nor does nonuse by one riparian owner enlarge the rights of other riparian owners against him. If the taking or use complained of is in excess of the share and due proportion which the proprietor, under the principle of equality, is entitled to take or use, then, conversely, he is taking the share belonging to other proprietors, and the dam- age to them may be excessive* so far as it is a substantial depriva- tion of capacity to make future use of one's land though no actual damage to use exist at present, the complaining owner not himself using the water at present. True, the complaining owner suffers 29 Supra, sec. 673, and sec. 749a. man v. Le Franc, 137 Cal. 217, 69 30 Anaheim W. Co. v. Fuller, 150 Pac. 1011. Cal. 327, 88 Pac. 978. Italics ours. 31 Hudson v. Dailey, 156 Cal. 617, "Before plaintiffs could have the aid 105 Pac. 748. of the court to enjoin defendant's use 32 Ibid., and Miner v. Gilmour, 12 they would have to show that such Moore P. C. 155, 14 Eng. Reprint, use was in excess of their rights and 861. resulted in plaintiff's injury." Cole- 858 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 801 no present damage to use in such case, but present damage to use is not necessary. It is enough that it excessively deprives him of the natural advantages of his land, excessively diminishes the value of the riparian estate owing to the loss of the*water for use on his land in the future, thereby causing a permanent depreciation of the value of his land. An excessive injury to capacity of use in the future, which would ripen into a prescriptive right, is equally a wrong. For example, if one riparian proprietor con- sumes the whole stream, though on his own riparian land, it is wrongful to a lower proprietor, though the lower proprietor makes no use of the water himself; for in a few years he would finally lose the whole stream by prescription. Besides which the upper owner by so doing immediately deprives the lower of the natural benefit and fertility which the flow of the stream naturally affords, which, as between riparian owners, must not be done to an unrea- sonable degree. The following statement is as admirable an exposition of the state of the law upon this matter as the present writer can recall : "Riparian rights are naturally rights depending on the owner- ship of land situated on the bank (ripa) of a stream. Except for certain natural and ordinary purposes, the rights of one proprietor are not in general superior to those of another. The rights of all for purposes of irrigation or other so-called extraordinary pur- poses are based on the principle of equality and are correlative and interdependent. Each may take only such an amount of water as is reasonable under all the circumstances. // one takes more than this amount under a claim of right, although no damage might for the time being be caused thereby to the others, because they do not choose to exercise their full rights, yet it would be an injury (injuria sine damno) for which they could maintain an action, because otherwise the wrongful user might by long con- tinuance ripen into a right. When once it has thu*s ripened into a right it becomes a superior and absolute right, no longer de- pending upon the location of the land upon the banks of the stream, or upon the corresponding rights of others. ' ' ^ As is said in Lux v. Haggin : ' ' There can be little doubt, under the authorities, that for a riparian proprietor entirely to consume 33 Mr. Chief Justice Freer in "If the use which one 'makes of his Wong Leong v. Irwin, 10 Hawaiian right in the stream is not a reason- Hep. 270, 271. Italics ours. The able use, or if it causes a substantial upreme court of Massachusetts says: and actual damage to the proprietor 5802 Ch. 34. BETWEEN RIPARIAN OWNERS. (3d cd.) 859 water (except ordinarily for domestic uses, etc.) is to use it unrea- sonably"; 34 and "an entire diversion [consumption, or diversion without returning it] of a watercourse by an upper riparian pro- prietor for irrigation is never allowed"; 1 and hence it is that in apportioning the water to allow each riparian owner a reasonable use, the apportionment must be based upon the amount of irrigable land owned by each, and not merely on the amount actually under irrigation. 2 If the riparian owner complained of is making an excessive use during the complaining owner's nonuse, the latter is entitled to either nominal damages, 3 or. to an injunction. (3d ed.) 802. Declaratory Decree. "While prospective damage is thus equally important with present damage in determining what acts complained of are excessive, there is a tendency to protect such future use (where no present use is made, and hence no actual present damage) by a declaratory decree, protecting the complain- ing proprietor's right of future use, but refusing a prohibitive injunction during his present nonuse. This is in effect quieting his title to his right of future use, but denying a prohibitive in- junction at present because no actual damage occurs to his use at present, and allowing excessive use by. the other proprietors during the absence of damage and during the nonuse of the com- plaining party. The authorities which the writer has to this effect involved chiefly nonriparian use, in which connection they are given here- after ; 4 but if the decree may be so framed in favor of a non- riparian use, it a fortiori may be so framed in favor of an exces- sive riparian use. Perhaps an instance, as between riparian uses below by diminishing the value of his 1 Ibid. Accord, Stanford v. Felt, land, though at the same time he has 71 Cal. 249, 16 Pac. 900; Learned v. no mill or other work to sustain Tangerman, 65 Cal. 334, 4 Pac. 191; present damage, still, if the party Matthews v. Ferrea, 45 Cal. 51; Bar- then using it has not acquired a neich v. Mercy, 136 Cal. 206, 68 Pac. right by grant, or by actual appro- 589; Harrison v. Harrison, 93 Cal. priation and enjoyment for twenty 676, 29 Pac. 325; Sackrider v. Beers years, it is an encroachment on the (1813), 10 Johns. 240; Mason v. Hill, right of the lower proprietor for 5 Barn. & Adol. 1, 110 Eng. Reprint, which an action will lie." Elliott v. 692; Gould on Waters, 3d ed., p. 422, Fitchburg Ry., 10 Cush. 191, 57 Am. note 4. Dec. 85. 2 Supra, sec. 751. 34 Lux v. Haggin, 69 Cal. 255, at 3 Price v. High Shoals Co., 132 Ga. 406, also see pp. 397 and 408, 10 Pac. 246, 64 S. E. 87. 674. * Infra, sec. 831. 860 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 803 solely, occurred in "Wiggins v. Muscupiabe etc. Co. 5 It was there decreed (by Judge Shaw, trial judge, now on the supreme bench) that when one proprietor was not using the water it might be all consumed by the other; decreeing to the former a right, whenever he desires, to begin use for his irrigable land at the intervals de- creed by the court as reasonable, but allowing complete consump- tion by the other even at those intervals, until the former desires to avail himself of the water. The decree was affirmed on appeal. (3d ed.) 803. Conclusions. The following conclusions seem proper between riparian owners using water upon their riparian lamds: (a) A riparian proprietor's right is not one to the corpus of the water, nor to the stream as a corpus in its natural state, nor to en unchanged flow of the water, but is a usufructuary right in the natural resource, a right to the advantages and benefits and uses which his riparian estate derives or may in the future derive from the water, and the value which the presence of the stream as a water supply contributes to the riparian estate, as qualified by the equal right of all other riparian proprietors to share in the same benefits, advantages and uses. (b) To constitute a wrong by one riparian owner to another there need not be any present damage to use, nor need the com- plaining proprietor be actually using the water, but if there be no such present damage to use, there must be shown some detriment to the use of the land from impairment of these benefits, ad- vantages and opportunities in a word, diminution of the value of the estate by loss of future use of the water. (c) And further, the damage to actual use (if such there be) or to the value of the estate must, to become wrongful, be shown, as a question of fact in each case, to go to a degree such as to be unreasonably in excess of that necessarily resulting from a rea- sonable use of his own riparian land by the party complained of in conjunction with a like reasonable use by complainant, and thereby in excess of the equality of right among all. (d) In the absence of such excess, any diminution of flow, or any interference or damage caused in the use of his riparian land by one riparian owner, to another riparian owner, is a reasonable use, and hence is damnum absque injuria. 5 113 Cal. 194, 54 Am. St. Kep. 337, 45 Pae. 160, 32 L. R. A. 667. 804-813. (Blank numbers.) . 814 Ch. 35. AQAINST NONRIPARIAN OWNERS. (3d ed.) 861 CHAPTER 35. PROTECTION OF RIPARIAN RIGHT AGAINST NONRIPA- RIAN OWNERS. 814. Difficulty of questions involved. A. IMPAIRMENT OF RIPARIAN ESTATE TO ANY DEGREE WHAT- EVER BY NONRIPARIAN USE IS WRONGFUL. 815. Stated generally, nonriparian owners have no rights in streams. 816. Damage to present use immaterial. 817. Reasonableness- in its correlative sense is immaterial. 818. The wrong (where no present damage to use) consists in the de- terioration to any degree of the riparian estate. 819. Nonriparian diversion usually held per se a detriment. B. SOME OPPOSING AUTHORITIES. 820. Departures from the common law. 821. Some rulings under the common law. 822. Some California decisions. 823. Some rulings in other common-law courts. 824. Same. 825. Storm waters. g 826. Same. C. CAN THESE MINORITY RULINGS BE RECONCILED TO PRINCIPLE. 827. The answer must be made under the common law. 828. Possible distinction between diminution of flow and depreciation of estate. 829, Same. 830. Same. 831. Application of the distinction by confining the decision to the par- ties litigant. 832. Same. D. OTHER RELATED MATTERS. 833. Declaratory decree. 834. Nonriparian use by both parties. 5 835. Conclusions. 836. Exception where underground water is involved. 837-843. (Blank numbers.) (3d ed.) 814. Difficulty of the Questions Involved. Upon no matter in the law of waters has there been more litigation, diversity of 862 (3ded.) Pt.IV. THE COMMON LAW OF RIPAKIAN EIGHTS. 815 ruling and intrinsic difficulty than in the matter now to be con- sidered ; the questions arising out of protection of the riparian right against nonriparian owners. It has borne most of the fighting in the law of watercourses under the name of the doctrine "injuria sine damno." The common law of riparian rights took its shape in upholding that doctrine, and the Colorado law of prior appro- priation in denying it with reference to riparian owners. The matter presents intrinsic difficulties under the law of appropria- tion as well a^3 in the common law, which will probably prevent it ever being absolutely settled to the entire satisfaction of everj^one. 1 It is here considered as a question of common law, which is the California law for streams on private lands. A. IMPAIRMENT OF RIPARIAN ESTATE TO ANY DEGREE WHAT- EVER BY NONRIPARIAN USE IS WRONGFUL. (3d ed.) 815. Stated Generally, Nonriparian Owners have No Rights in Streams. Stated generally, nonriparian owners have no rights in streams at common law. Though the water itself is not the subject of ownership by anyone (variously expressed as being "publici juris," "common to all men," or "belonging to the pub- lic" or "a mineral ferae naturae"), 2 yet members of the public owning no land bordering on the stream, since they (aside from arrangement with some bank owner) have no access to the natural resource without committing a trespass, are excluded. This exclu- sion in settled regions (and the common law contemplates no others) throws out, from the means of accomplishing a taking or use, the greater part of the public, leaving only the riparian proprietors as the division of the public whom conditions in settled regions do not exclude. Their situation gives them, not any greater ownership in the substance itself than others, since none can have any at all, but the advantage of position which enables them alone as members of the public to avail themselves of its benefits or the usufruct of the stream.* Another way of putting it is that the law is one of natural re- sources. While in its natural situation and flow, each adjacent 1 The difficulties which arise in ap- 3 Supra, sees. 54 et seq., 225, 692. plying the doctrine of injuria sine For example, Mr. Justice Shaw damno between appropriators is eon- lately said in the supreme court sidered elsewhere. Supra, see. 642. of California; "The Martin ranch 2 S-upra, see. 2 et seq. abutted upon the stream and the 815 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 863 landowner in turn has in it, at common law, a natural right of real property. It is there devoted by nature to public use (or "publici juris") a class (in settled regions which the common law contem- plates) of the public defined by natural situation. Once per- manently diverted from its natural situation no one thereafter receiving the water can have real property rights in the natural resource, nor any right except through the will of the man who has taken it and brought it to the new locality. 4 The common law, contemplating a settled region, will not permit one man to thus gather up in himself alone the whole natural resource by taking it from the riparian public ; but only if he takes it from that class of the public for distribution to or use of some other class of the public (that is, condemnation for public use under the law of emi- nent domain), being then subject to public regulation (under the law of public service). Another way of putting it is that a nonriparian owner, if he acquired any right by his taking, would have an exclusive right, owing no duties to the riparian owners on the stream, in violation of the common-law system of correlated rights. "Our law," said Justice Story, "awards to the riparian proprietors the right to the use in common, as one incident to the land; and whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law" 5 [that is, by grant, condemnation -or prescription]. The system of correlative rights is inconsistent with the idea of rights in. nonriparan owners who would not enter into the correlation. Still another way of putting it is that the California law of "appropriation" of water is confined to the public domain; part riparian rights attaching to said lands 657, 108 Pae. 866. (Italics ours.) by reason of this contiguity were In a still later case the same authority paramount to the rights of any ap- says: "With respect to the Calkins propriator. Being the owners of the land, all doubts as to the superior land bordering its banks, they could rights of the owners thereof to the control its flow and prevent others use of the waters of the creek thereon from diverting it at any point on would seem to be settled by the fact, their lands. There was no evidence appearing throughout the evidence or finding that the plaintiffs ever ob- and not disputed, that these lands are tained by purchase or grant from the riparian to the stream and are situ- owners of the Martin ranch any right ated above the point of diversion of whatever either to maintain the ditcb the plaintiffs." Perry v. Calkins over that ranch, or to use the water of (Cal.), 113 Pac. 136. the stream. They could not obtain 4 Supra, sec. 56 et seq. it in any other way except by pre- 5 Tyler v. Wilkinson, 4 Mason, 397, scription or possibly by way of Fed. Gas. No. 14,312. estoppel." Davis v. Martin, 157 Cal. 864 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 816 of the general idea from the early settlement of the State that the indiscriminate license exercised by the pioneers upon public land must not be carried against private landowners also. While, in the early Colorado cases, "necessity" was accepted as denying to private landowners in this new region the absolute dominion over their estates, 6 the California court has always opposed such ideas as appeared, if extended against private landowners, to be de- structive of property rights, and feared lest the peculiar relations and character of rights on the public domain should be invoked as applicable to private property and "result in a system of judicial condemnation of the property of one citizen to answer the as- sumed paramount necessity or convenience of another citizen." 7 It was the aim of the judges that the law of private land should be the same and as secure in California as in any other part of the country, as the legislature in its first session had declared by adopt- ing the common law as the general rule of decision. And it is merely one application of this attitude that the California courts have always confined the law of free appropriation to waters on the public domain, just as they confined free mining to the metals there. 8 Hence, at the beginning, the law of appropriation, under the California doctrine, must be eliminated from the following discus- sion; for that system has no application in California to streams flowing over or by private lands. The question is one wholly within tho common law of riparian rights itself, entirely irrespective of the public land doctrine of free appropriation. Any statement that nonriparian owners have rights in streams (except by 'grant, condemnation or prescription), if meant as a statement of a general principle, is not in harmony with the philosophy of the common law; would be destructive of the system and its aims; and whatever discussion we may enter into below, nothing hereafter said is intended to imply that the common law upholds it. (3d ed.) 816. Damage to Present Use Immaterial. Entirely imma- terial is any inquiry into actual present damage suifered or not suffered by the riparian proprietor to his present use. Since the Supra, see. 223. * We have elsewhere traced at T Gregory v. Nelson, 41 Cal. 278, S^SLS^^rf 'sect 221*6? at 290, 12 Morr. Min. Rep. 124. 6e?f 227 et seq. 816 Ch.35. AGAINST NONEIPARIAN OWNERS. (3d ed.) 865 riparian proprietor's right is not created by use, but is a right to the undisturbed use of his land, whether present or future, arisjng out of the natural situation of his property with access to the stream, and he may use the water when he will, the absence of actual dam- age to use at the time he complains does not prevent the act of the nonriparian owner being wrongful; even, in fact, when the com- plaining proprietor is not himself using, nor contemplating to use, the water at all. The courts will act at law by giving nominal damages, 9 or in equity by injunction, to vindicate his right of future use of his land, which right is part and parcel of the land, and pre- vent its loss by prescription, and which future use is (in marked contrast to the law of appropriation) as secure to him as any present use. 10 This matter was definitely settled in California in Lux v. Hag- gin. 11 It had, however, always been the California law, as, for example, the holding in the note, in a case several years before Lux v. Haggin. 12 In a recent California case it is said: 13 "Find- ing 15, to the effect that a large part of each of the tracts de- scribed in the complaint has for twenty-five years been continuously cultivated by means of water taken from the stream is, it is con- Creighton v. Evans, 53 Cal. 55, 8 Watsonville Co., 150 Cal. 520, 89 Pae. Morr. Min. Rep. 123. 338; Huffner v. Sawday (1908), 153 10 Creighton v. Evans, 53 Cal. 55 ; Cal. 86, 94 Pac. 424 ; Miller v. Madera 8 Morr. Min. Rep. 123; Anaheim etc. Co., 155 Cal. 59, 99 Pac. 502, 22 L. Co. v. Semi-tropic etc. Co., 64 Cal. R. A. 391; Miller v. Bay Cities Co., 185, 30 Pac. 623; Moore v. Clear 157 Cal. 256, 107 Pac. 115; San Lake W. Co., 68 Cal. 146, 8 Pae. 816; Joaquin etc. Co. v. Fresno etc. Co. Stanford v. Felt, 71 Cal. 249, 16 Pac. (Cal. 1910), 112 Pac. 182. See cases 900; Hcilbron v. W. Co., 75 Cal. 117, cited in various preceding chapters, 17 Pac. 65; Heilbron v. Fowler etc. such as sec. 117, cases following the Co., 75 Cal. 426, 7 Am. St. Rep. 183, "California doctrine"; sec. 221 et seq., 17 Pac. 535 ; Heilbron v. Land Co., 80 regarding appropriations on private Cal. 189, 22 Pac. 62; Last Chance etc. land; sees. 498 et. seq., 502, 505, re- Co, v. Heilbron, 86 Cal. 1, 26 Pac. garding changes, on private land, of 523; Conkling v. Pac. Imp. Co., 87 appropriations made while the land Cal. 293, 25 Pac. 399; Walker v. was public. Emerson, 89 Cal. 456, 26 Pac. 968; The leading American case is that Spargur v. Heard, 90 Cal. 221, 27 Pac, of j us ti ce Story in Webb v. Portland 198; Mott v. Ewing, 90 Cal. 231, 27 cment Co., 3 Sum. 189, Fed. Cas. Pac. 194; Hargrave v. Cook, 108 Cal. No. 17,322. The leading English 72, 41 Pac. 18, 30 L. R. A. 390; case j s Swindon W. W. v. Wilts etc. Gould v. Eaton, 117 Cal. 539, 49 Pac. o 0> 7 H of L> 697 577, 38 L. R. A. 181; Bathgate v. Irv- . '' ., 1 , ' ' _. ine,' 126 Cal. 136, 77 Am. St. Rep. l 69 CaL 255 ' 10 Pac ' 674 ' 158, 58 Pac. 442; Southern Cal. etc. l2 Creighton v. Evans, 53 Cal. 56, Co. v. Wilshire, 144 Cal. 73, 77 Pac. 8 Morr. Min. Rep. 123. 767; Anaheim W. Co. v. Fuller, 150 Huffner v. Sawday, 153 Cal. 86, Cal. 327. 88 Pac. 978; Duckworth v. 94 Pac. 424 (Sloss, J.). Italics ours. Water Rights 55 866 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 817 tended, contrary to the evidence. The finding on this point is, so far as concerns the plaintiffs who have riparian rights, not ma- terial. Their right to restrain the diversion, by others than riparian owners of water which would, if undisturbed, flow past their lands, does not rest upon the extent to which they have used the water, nor upon the injury which might be done to their present use. Even if these plaintiffs had never made any use of the water flowing past their land, they had the right to have it continue in its customary flow, subject to such diminution as might result from reasonable use by other riparian proprietors. This is a right of property, a 'part and parcel' of the land itself, and plaintiffs are entitled to have restrained any act which would infringe upon this right." The riparian right is part and parcel of the riparian land, not depending upon actual use, as contrasted with an appropriation which depends on beneficial use. Upon this rule, that actual present damage to a riparian owner is not necessary to make a nonriparian owner's diversion wrongful, the authorities are emphatic. 14 (3d ed.) 817. Reasonableness in Its Correlative Sense is Immaterial, A fortiori, the term ' ' reasonable use ' ' in the law of riparian rights (denoting an equality of sharing the water's benefits for the equal correlative use of all land having natural access to it by natural situation; that is, an equality in the use of all riparian land) has no place in favor of nonriparian lands or their owners. There can. be no question of reasonableness of an impairment of a riparian estate, when that impairment is not for the benefit of another riparian estate, but is instead for exclusive use on nonriparian land or by nonriparian owners. Riparian owners are entitled to a -rea- sonable use of their own lands, though to an interference with a neighbor, because they are equal in right for that purpose; non- riparian lands or owners can never claim this equality with them. "I consider that the rights of a riparian proprietor, with respect 14 A statute was introduced in the be unconstitutional. Whatever may California legislature in 1909 (but be urged as to use as bounding the failed to pass) "limiting" riparian riparian right, it is obvious that rights against nonriparian owners to future use must be guarded as much s the water reasonably necessary for as present use. The California water- riparian irrigation, watering stock, power act of 1911 expressly declares domestic uses and other actual bene- that it shall not impair rights vested ficial uses, and only when actually in at the time use is sought under the use therefor. This would obviously act. Stats. 1911, e. 406, sec. 14. 817 Ch. 35. AGAINST NONEIPARIAN OWNERS. (3d ed.) 867 to the stream, are limited only by those of persons in a similar or analogous position with respect to the stream as himself. ' ' 15 There are, indeed, decisions admitting nonriparian use into such equality with riparian uses, and inquiring whether the nonriparian use was "reasonable," just as between riparian uses. The matter has been one in which great confusion existed. It found its way into some California cases. 18 .Likewise in England, it was in one case held that nonriparian use was permissible if it was a "reason- able use" on the same terms as use on the riparian lands them- selves, 17 but this was emphatically overruled in a later case in the House of Lords. 18 It has likewise been held to be the law of New Hampshire that water may be taken for sale to nonriparian owners, if only a ' ' reasonable use, ' ' 19 and of Vermont, 20 and there is some- thing to the same effect in a Massachusetts case. 21 But, upon prin- ciple, they cannot stand upon this ground, and in the law of Cali- fornia, after .some confusion, it is now definitely settled that the question of "reasonable use" which governs between riparian owners or uses does not in any way concern a nonriparian owner or nonriparian use. We quote, so far as concerns this matter, the recent opinion of Mr. Justice Sloss upon rehearing in the case of Miller & Lux v. Madera Canal Co. : ^ "The argument that the method of irrigation adopted by plain- tiff, i. e., that of having the annual increased flow of the river spread over its lands, was not a reasonable use of the water, can have no weight in this case. The doctrine that a riparian owner is limited to a reasonable use of the water applies only as between different riparian proprietors. As against an appropriator who seeks to divert water to nonriparian lands, the riparian owner is entitled to restrain any diversion which will deprive Ijim of the 15 Channel, B., in Nuttall v. Brace- affirmed in Percival v. Williams well, L. R. 2 Ex. 1. (1909), 82 Vt. 531, 74 Atl. 321. 16 Infra, sec. 826 et seq. 21 ott v Fitchburg Ry, 10 ,, ., Cush. 191, 57 Am. Dec. 85. P irfpv, n S *n7 ^i Nn7 22 < 1909 )> 155 Cal " 59 > " Pa - 502 > Co, 10 Ch. D. ,07 See, also Nor- 22 ^ R A N g { 5"Too V -o ? W^fe Miller v - Ba 7 Cities W. Co, 157 Cal F. -292, 9 Jur, N. S, 132. 256> 1Q7 p ^ c n - The ^ faad 18 McCartney v. Londonderry Ry. been laid down in Lux v. Haggin at Co., [1904] App. Cas. 301. suit O f the same plaintiff, but owing 19 Gillis v. Chase, 67 N. H. 161, to the unsatisfying results of the rule 68 Am. St. Rep. 64, 31 Atl. 18; Jones in an unsettled region, and to the fact v. Aqueduct, 62 N. H. 488. that the opinion in Lux v. Haggin was 20 Lawrie v. Silsby, 76 Vt. 240, 104 so extremely long that it was seldom Am. St. Rep. 927, 56 Atl. 1106; Same read, the point had again come in v. Same. 82 Vt. 505, 74 Atl. 94. doubt. 868 (3d ed.) Pt. IV. THE COMMON LAW OF KIPAEIAN RIGHTS. 818 customary flow of water which is or may be beneficial to his land. He is not limited by any measure of reasonableness. If any doubt ever existed on this point, none can remain since the recent deci- sion of this court in Anaheim Union Water Co. v. Fuller. 23 The cases relied on to show that the riparian owner is entitled to only a reasonable use of the water were all cases of controversies be- tween owners of different parcels of land riparian to the same stream. Virtually the same point is presented by the argument that plaintiff is not limiting itself to the most economical manner of using the water. This is not an objection which may be raised by an appropriator who seeks to divert water of the stream to non- riparian lands " Possibly the law might have taken a different course in the West, where a stream is partly on public and partly on private land, so that such dual position of the stream would leave a riparian right in the United States, upon whose great extent of lands any use might (had the law taken that course) have been regarded as riparian, and the question would then have been legitimately one of "reasonableness" between riparian proprietors where the upper use was on lands of the United States. This was urged in the briefs in Lux v. Haggin, but received no consideration from the court. It was again urged only on one occasion, and then the court said: "We see nothing in the suggestion that defendant is pre- sumably the licensee of the United States, and that the United States, being an upper riparian proprietor, could take a reasonable quantity of water as against the lower riparian owner. A riparian proprietor may not authorize, as against a lower proprietor a com- pany to take water from the stream to be conducted at a distance and sold. ' '. 24 And this matter must now be regarded as settled by the opinion of Mr. Justice Sloss. (3d ed.) 818. The Wrong (Where No Present Damage to Use) Con- sists in the Deterioration, to Any Degree, of the Riparian Estate resulting from loss of future use of the water, a deterioration which must be submitted to in favor of other riparian use to a reasonable degree, but to no degree at all in favor of nonriparian use. 23 150 Cal. 327, 88 Pac. 978, 11 24 Heilbron v. Fowler etc. Co., 75 L. E. A,. N. S. ; 1062. ' Cal. 426, 7 Am. St. Hep. 183, 17 Pac. 535. 818 Cb. 35. AGAINST NONEIPABIAN OWNEES. (3d ed.) 869 This idea is given in practically all of the important cases giving the reason for the rule allowing relief against nonriparian owners or use without present damage. In one of the leading American cases it is put by Chief Justice Shaw of Massachusetts, that there is a wrong, "if it causes a sub- stantial and actual damage to the proprietor below by diminishing the value of his land, though, at the time, he has no mill or other work to sustain present damage. " 25 In other cases, ' ' as will be detrimental to the full enjoyment of the stream by the com- plainants," 1 or "the plaintiff's premises would sell for less"; 2 or, "They had no property in the water, and it had no value to them independent of their land or real property, and, therefore, its value to them was measured by the injury which its diversion inflicted upon their real property to which the water was appurtenant," 3 or, "It is true, as the plaintiff contends, that to maintain an action he is not obliged to show in his use of the land, actual present dam- ages. It is enough if it appears that an injurious effect is pro- duced upon his property by the maintenance of the dam, such as to diminish its value, if the defendant, by lapse of time, should ac- quire a right to maintain the dam"; 4 or, "The plaintiff is not limited in her user of the water as she has been accustomed to use it, but she has a right to bring an action for the impairment of such prospective use as she might reasonably make of the water."-' Shaw, C. J., in a Massachusetts case, 6 ruled: "And although the plaintiff has sustained no present damage, because she has had no mill on it, or otherwise used it for any agricultural or manufac- turing purpose, yet such diversion would prevent beneficial use of it hereafter, and thus impair the value of the estate." Chancellor Kent expressed it as being that "he will lose the comfort and use of the stream for farming and domestic purposes." 1 In other cases it is put that the wrong lies in that it may "defeat any subsequent 25 Elliott v. Fitchburg Ry., 10 it has been actually held that the Gush. 191, 57 Am. Dec. 85. measure of damages for diversion of 1 Higgins v. Flemington W. Co., a stream for nonriparian use on 36 N. J. Eq. 538, framing decree to eminent domain is the depreciation enjoin nonriparian city supply only in value of the riparian land. Infra, to that extent. sc. 865. See, also, Cincinnati Co. 2 Bower v. Hill, 1 Bing., N. S., v. Gillispie, 130 Ky. 213. 113 S. W. 549, 2 Scott, 535. 89, measure of damages for pollution. 3 Matter of Thompson, 85 Hun, 5 Standen v. New Rochelle W. Co., 438, 32 N. Y. Supp. 897. 91 Hun, 275, 36 N. Y. Supp. 92. 4 Stimson v. Inhabitants of Brook- 8 Newhall v. Iveson, 8 Cush. line (1908), 197 Mass. 568, 125 Am. (Mass.) 595, 54 Am. Dec. 790. St Rep. 382, 83 N. E. 893, 16 L. R. 7 Gardner v. Village of Newburgh A., N. S., 280, 14 Ann. Cas. 907. So (1816), 2 Johns. Cn. 164, 165. 870 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN RIGHTS. 819 use," 8 or "which would abridge his present or potential use of his property." 9 In an early Scotch case: 10 "No man is entitled to divert the course of a river or of any of its branches, which w r ould be depriving others of their right, viz., the use of the water." Or. in more general terms: "There is a present injury to the right of property, if it is impossible to predicate that it may not produce serious damage in future, though the complaining party is not yet in a position to qualify present damage." u It should be noted that the question is of impairing the use of the riparian land, not a question of directly interfering with the use of the water itself. The riparian right is one to the use of the land by means of the water, which draws the use of water to it as an incident ; the use of water is not the principal thing. 12 Analogies may be found in other branches of the law. "The owner of land has a right to support from the adjoining soil; not a right to have the adjoining soil remain in its natural state (which right, if it existed, would be infringed as soon as any excavation was made in it) ; but a right to have the benefit of support." 1 An excava- tion which causes no present caving, but which, in a couple of years, after rains, would then cause caving, would probably be ac- tionable from the start. Likewise, .in jurisdictions recognizing rights in light, a tree which cuts off no light now, but which in a couple of years would grow so as to cut off all light, would also probably be actionable when planted at all. 2 In determining upon an injunction, "regard must be had to the effect of the nuisance upon the value of the estate, and upon the prospect of dealing with it to advantage." 3 (3d ed.) 819. Nonriparian Diversion Usually Held Per Se a Detri- ment. Having seen that damage to present use need not be shown, 8 Crocker v. Bragg, 10 Wend. (N. 12 See infra, sees. 1118 et seq., 1140 Y.) 260, 25 Am. Dec. 555; or, an et seq., percolating water, instruction respecting damage is l Lord Blackburn, in Dalton v. wrong if it charges the jury to re- Angus, 6 App. Cas. 808. gard only plaintiff's land "as it was, 2 See Colls v. Home and Colonial and not with reference to the future." Stores, [1904] App. Cas. 179. We New York Rubber Co. v. Rothery, refer to this for the principle, though 132 N. Y. 293, 28 Am. St. Rep. 575, the doctrine of ancient lights is not 30 N. E. 841. in force to the same extent in this Clark v. Penn, Ry., 145 Pa. 438, country as in England. 27 Am. St. Rep. 710, 22 Atl. 989. 3 Lord Cranworth, C., in Atty. 10 Magistrates v. Elphinstone (1768), Gen. v. Sheffield, Gas & Elect. Co., 3 3 Kames, 33-1. De Gex., M. & G. 304, 43 Eng. Re- 11 Lord Blackburn in Orr Ewing v. print, 119. Colquhoun, 2 App. Cas. 853. 810 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 871 and that any question of "reasonable" nonriparian use cannot exist, the common-law ruling has predominantly been that there is no room left for any further inquiry. The usual ruling has been throughout the common law, in California as well as in the East and in England, that any nonriparian diversion whatever is per se actionable (unless it be so comparatively insignificant in quan- tity as to be within the rule, "de minimis non curat lex") ; and so the general rule of pleading is that a plaintiff riparian owner, as against a nonriparian owner or nonriparian use, heed allege, in this regard, nothing more than that the stream flows by or through his land. 4 A statement representative of the usual ruling is given by Mr. Justice Henshaw in a California case, saying that a riparian pro- prietor's right is a usufructuary one for the use of his own land, and holding : " If his needs do not prompt him to make any use of them, he still has the right to have them flow onto, and along, and over his land in their usual way, excepting as the accustomed flow may be changed by the act of God, or as the amount of it may be decreased by the reasonable use of upper owners and riparian proprietors." 5 This statement represents the usual holding in California ; especially within the last ten years it has been the almost universal holding there as elsewhere (with some earlier exceptions hereafter noted). 6 For example, it has been said in recent Cali- fornia cases that the riparian owner has "perhaps, as to other than riparian owners, the right to prevent any substantial diminution of the amount of water which would naturally flow to his land"; 7 and that a nonriparian owner is per se a trespasser upon the rights of a riparian owner from the beginning. 8 Again, "being a riparian owner, he has a right to the flow of the entire stream as against any diminution thereof by one who is not a riparian owner." 9 In Lux v. Haggin, 1 * the California court said: "Undoubtedly, as * Infra, sees. 883, 884. 7 Mr. Justice Shaw, in Duckworth 5 Hargrave v. Cook, 108 Gal. 72, v. Watsonville etc. Co., 150 Cal. 520, 41 Pac. 18, 30 L. R. A. 390. 89 Pac. 338. 6 Lists of California cases to this 8 Mr. Justice Shaw, in Anaheim effect are given elsewhere, viz., supra, W. Co. v. Fuller, 150 Cal. 327, 88 Pac. sec. 117 (California doctrine); supra, 978. sees. 221, 229 (appropriation confined 9 Gould v. Eaton, 117 Cal. 543, 49 to public land) ; supra, sec. 816 Pac. 577, 38 L. R. A. 181. This is (present damage to use) ; supra, sec. expressly disapproved in San Joaquin 817 ("reasonableness immaterial"). Co. v. Fresno Flume Co. (Cal. 1910), See especially Creighton v. Evans, 53 112 Pac. 182. Cal. 56, 8 Morr. Min. Rep. 123, de- 10 69 Cal. 255, 10 Pac. 674. cided before Lux v. Haggin, and a In Cal. etc. Co. v. Enterprise etc. model of conciseness. Co., 127 Fed. 741, at 742, 743, it is 872 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 820 against an appropriation by a mere wrongdoer [i. e., a nonriparian owner, or a man having no right against the complaining riparian owner by grant, condemnation or prescription] , a riparian proprie- tor may insist upon the entire and complete natural flow of the stream. ' ' And so the rule is generally regarded to be that impairment of estate is not a question of fact nor open to inquiry; that such im- pairment follows per se from nonriparian diversion, as a matter of law, unless so slight as to be within the rule "de minimis non curat lex." B. SOME OPPOSING AUTHORITIES. (3d ed.) 820. Departures from the Common Law. The Colorado doctrine is wholly opposed to the foregoing, having rejected the common law in toto, refusing any recognition at all to the rights of riparian owners. 11 Decisions of those courts are of no bearing here whatever. (3d ed.) 821. Some Rulings Under the Common Law. But the Cali- fornia courts, and some other courts following its doctrine up- holding riparian rights, have, as an interpretation of the common law itself, rendered some decisions opposed to the foregoing sec- tions. It is with these decisions given under the common law itself that we must now deal. The easiest way would be to simply note them and say that they were contrary to the weight of common-law authority in and out of California. That would be true. But it is not so easy to say that they are equally without support upon common-law principle. To so support them is, indeed, difficult, in view of the doctrine of the foregoing sections ; but one is not ready to say that it is impossible. said: "A riparian proprietor (and this above him to prevent such diversion includes a lessee) is entitled to an in- from ripening into a right. [Citing junction to restrain the unlawful cases included in sec. 816, n. 10, supra.] diversion of the waters of a stream In opposition to the foregoing cases, adjoining his land, although the in- defendants rely, among others, on jury caused by the diversion is in- Modoc etc. Co. v. Booth, 102 Cal. 151, capable of ascertainment, or of being 36 Pac. 431. In so far as the last estimated in damages. Irrespective named case conflicts, if it does con- of the question of injury, or its flict, with those previously cited, I estimation in damages, another line must decline to follow it." of cases holds that a riparian proprie- H Supra, sees. 118, 168 et seq. tor may enjoin a wrongful diversion 822 Ch. 35. AGAINST NONRIPAEIAN OWNERS. (3d ed.) 873 Our plan will be to state them first, and consider the possibility of supporting them upon principle afterward. (3d ed.) 822. Some California Decisions. The California case most frequently cited against the foregoing is Modoc L. & L. Co. v. Booth 12 wherein it is said: "It seems clear, however, that in no case should a riparian owner be permitted to demand as of right the in- terference of a court of equity to restrain all persons who are not riparian owners from diverting any water from the stream at points above him simply because he wishes to see the stream flow by or through his land undiminished or unobstructed. In other words, a riparian owner ought not to be permitted to invoke the power of a court of equity to restrain the diversion of water above him by a nonriparian owner when the amount diverted would not be used by him, and would cause no loss or injury to him or his land, present or prospective, but w r ould greatly benefit the party diverting it." This was relied on in Vernon Irr. Co. v. Los Angeles. 13 where it is said: "There is no evidence or finding that its lands are suscep- tible of cultivation or can be made productive, or that plaintiff is or can be injured as to its riparian lands though deprived of all the water flowing in the stream." (Injunction refused.) And so far as the recent cases upon percolating water present analogies to riparian rights on watercourses, they strongly support the Modoc case. In one of these it was said of the authorities given in the opening sections of this chapter: "They lay down the rule that waters of a stream (or percolating waters), cannot be taken away from the lands on which they flow or from lands upon which they are found, for use elsewhere, where the result of such taking would be to injuriously affect adjoining property owners. The principle which enters into this rule is protection to be given the superior natural rights of adjoining property owners to the flow and use of such waters. Where, however, there can be no injury worked to such adjoining owners by the taking and use elsewhere of such waters, no limitations should be placed upon the right of one de- veloping them as to their use." 1 * Very recently the supreme court of California has again (by way of dictum only, however) reaffirmed this ground. In San Joaquin 12 102 Cal. 151, 36 Pac. 431. 584, 11 L. B. A., N. S., 752, infra, Sec. 13 106 Cal 243, 39 Pac. 762. 1052. See. also, Newport v. Temescal 14 Cohen v. La Canada W. Co. W. Co., 149- Cal. 531, 87 Pac. 372. 6 (second appeal), 151 Cal. 680, 91 Pac. L. R. A., N. S., 1098, infra, sec. 1051; 874 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAKIAN EIGHTS. 822 Co. v. Fresno Flume Co. 15 the court, speaking of nonriparian use against a riparian owner, said through Mr. Justice Henshaw: "Even if at common law or under the civil law it was a part of the usufructuary right of the riparian owner to have the water flow by for no purpose other than to afford him pleasure in its prospect, such is not the rule of decision in this State. The lower claimant must show damage to justify a court of equity in restraining an upper claimant from his beneficial use of the water"; and after quoting at length from the Modoc case, defines the term ' ' damage ' ' in this regard as meaning: "Of course the riparian proprietor's rights are not measured by the amount of water which he is actu- ally using at the time of his action. In this sense the actual present damage ceases to be of great consequence, but its place is taken by the necessary and consequential damage which would follow to his land if the unauthorized act of the upper appropriator [non- riparian user] were allowed to ripen into a prescriptive right. ' ' 16 There are other California cases going much further than the Modoc case, and bringing in the untenable ground of "reasonable use" which governs riparian owners between themselves. A ripa- rian proprietor has been held to have a right against an appropriator for nonriparian use only to the extent of the amount necessary for use on the riparian land. 17 In Senior v. Anderson, 18 an appropria- tion was made against a riparian owner, and was upheld as to the surplus over the quantity that could be beneficially used by the ripa- rian owner. 19 Another case has gone even further. In Riverside and Mr. Justice Shaw in Katz v. Beatty, C. J. See, also, the dissent- Walkinshaw, quoted infra, see. 1047, ing opinion of the Chief Justice in and Burr v. Maclay E. Co., 154 Baxter v. Gilbert, 125 Cal. 580, 58 Cal. 428, 98 Pac. 260. In Hudson Pac. 129, 374. v. Dailey, 156 Cal. 617, 105 Pac. is 130 Cal. 290, at 296, 62 Pac. 563. 748, the court said it saw no reason 19 The court said: "It is con- why the law of riparian rights on tended by respondents that Senior streams should differ in this matter acquired no rights by his notice and from the new law of percolating the actual diversion of the water in water. See generally the discussion October, 1887; that riparian rights under the law of percolating water, had before that attached to the infra, sec. 1154 et seq. lands of Mrs. Hines, she having 15 (Cal. 1910), 112 Pac. 182. proved up and claimed her final cer- 16 Since, however, the opinion tificate of purchase. There is no closes by saying that both parties in merit in this contention. Her ri- the case at bar were in fact riparian parian rights could only entitle her owners making riparian use, the case to a reasonable use of the water is not actual authority in regard to upon her riparian lands, but having nonriparian use. before she acquired title from the 17 Senior v. Anderson, 130 Cal. United States appropriated more 290, 62 Pac. 563 ; Riverside etc. Co. water than was required for bene- v. Gage, 89 Cal. 420, 26 Pac. 889; ficial uses upon said land, she could 822 Ch. 35. AGAINST NONEIPAEIAN OWNERS. (3d ed.) 875 W. Co. v. Gage 20 it was held that a riparian owner must, in a suit with the appropriator, actually allege in his pleading the facts show- ing the quantity necessary for his riparian use, beyond which the surplus may be appropriated; the burden of disproving a surplus was strongly placed upon the riparian owner, 21 and the case has been very recently reaffirmed. 22 . There are still other California authorities unconsciously acting upon the same idea, 23 such as those acquire no right to any additional quantity under the law of riparian rights." (Under the more recent decisions she would have been entitled to the entire flow, irrespective of pos- sible use.) 20 89 Cal. 410, 420, 26 Pac. 889. 21 The court said: "But in addi- tion to the appropriations upon which the defendant seems mainly to have relied, he did allege in his answer that he was the owner of a tract of land containing about twenty-six hundred acres, through and over which the Santa Ana River flowed for a distance of about three miles, and that most of the tract was susceptible of, and would be benefited by, irrigation. He did not, however, allege that he was entitled as a riparian owner to any definite quan- tity of water for the irrigation of his riparian lands, nor did he allege any facts showing, or tending to show, what proportion of the waters of the stream he could reasonably exhaust for that purpose. Nor is it alleged whether his land was above or below the point of plaintiff's diversion. In short, we think the answer insufficient to raise any issue as to the extent of defendant's right as a mere riparian proprietor to divert and exhaust any portion of the stream." His opponent here re- lied solely on rights of appropriation; and the more recent decisions would have made the extent of riparian , needs immaterial, excepting that two very recent cases have again laid down and approved the rule of the Riverside case. Montecito Co. v. Santa Barbara (second appeal), 151 Cal. 377, 90 Pac. 935, and Wut- chumna W. Co. v. Pogue, 151 Cal. 112, 90 Pac. 362. See likewise San Luis W. Co. v. Estrada, 117 Cal. 182, 48 Pac. 1075. 22 Cases just cited. 23 See the storm-water cases, infra. See, also, Char nock v. Higuerra, 111 Cal. 471, at 477, 52 Am. St. Rp. 195, 44 Pac. 171, 32 L. R. A., 190; Coleman v. Le Franc, 137 Cal. 214, 69 Pac. 1011 (reasonableness adopted as test between a riparian and a non- riparian owner). Professor Pomeroy said: "But the larger and permanent rivers of the State, the San 'Joaquin, and its affluents like the Merced, the Tuolumne, the Calaveras, and others coming down from the heights of the Sierras, and the Sacramento with its similar branches, the Bear, the Yuba, the Feather, and others, when not polluted by hy- draulic mining, if reasonably and properly controlled and utilized, can certainly furnish an adequate and constant supply of water, for the purpose of irrigation, to vast com- munities of landowners in addition to the riparian proprietors upon their very banks Communities- of owners at a distance from the larger streams should be entitled to reach and appropriate this excess of their waters after the wants of the riparian proprietors are reasonably satisfied, without any condemnation or pay- ment of compensation, since such a use would not substantially affect any rights held by the riparian proprie- tors on the streams After the reasonable needs of the riparian proprietors have been fairly and rea- sonably ascertained and satisfied, all the excess of the waters of any such stream belongs of right, for the pur- poses of irrigation, to those communi- ties of nonriparian landowners who are so situated, geographically and topographically, that they can in the best manner appropriate and utilize such surplus of the waters." Pomeroy on Riparian Rights, sees. 155, 156, 158, 160. 876 (3ded.) Pt.IV. THE COMMON LAW OF RIPARIAN RIGHTS. 822 inquiring into the quantity of riparian land belonging to the ripa- rian owner ; 24 and such as those prohibiting waste by a riparian owner against nonriparian use below,- 5 especially a recent case where the court forced the riparian owner to let the surplus go by in order that it may be taken to nonriparian lands below, and affirmatively helped the nonriparian diversion by quieting title to it against the upper riparian use. 1 24 In Boehmer v. Big Rock Irr. Dist., 117 Cal. 19, 48 Pac. 908, de- fendant appears to have been a non- riparian owner, diverting water from an existing riparian owner. Such diversion was allowed after affirming the judgment w.hich "en- titles the plaintiff to the reasonable and necessary use of water there- from for domestic and irrigation pur- poses," and "limits plaintiff's riparian rights to those quarter sections through which the stream runs" (page 24). Yet unless the needs of those quarter sections were material, he would have had an unlimited right to the entire flow, irrespective of what other lands he owned. See supra, sec. 771, "riparian land." 25 In Barneich v. Mercy, 136 Cal. 205, 68 Pac. 589, nonriparian owner enjoined waste by riparian owner, without inquiring whether nonri- parian appropriation was acquired while defendant's land was public. In Mentone Irr. Co. v. Redlands Co. (1909), 155 Cal. 323, 100 Pac. 1082, 22 L. R. A., N. S., 382, 17 Ann. Cas. 1222, the court says: "We have little doubt that plaintiff . [a lower nonriparian user] would be en- titled to some relief [against a wasting upper riparian owner]." i In this case (Arroyo D. Co. v. Baldwin, 155 Cal. 280, 100 Pac. 874), a corporation making nonriparian use of part of its water was granted an injunction against an upper riparian owner who took three hun- dred inches more than the upper riparian needs required. The court limited the upper riparian owner (Baldwin) to two hundred and eighty-nine inches on the ground that "It is also found that only a part of Baldwin's land is susceptible of irrigation; that some of it is damp and moist land requiring no irriga- tiofl; that some needs but slight irri- gation ; that wells upon Baldwin's land supply water in abundance for do- mestic use; and that two hundred and eighty-nine inches of water under four-inch pressure is essential for irrigation for the successful culti- vation and production of crops on all the said land of the appellant which is susceptible of and requires irri- gation;" and said: "It is immaterial to this discussion whether or not some of the water taken from the stream by respondent [plaintiff] is carried beyond the watershed. Ap- pellant [defendant riparian owner] is limited in his right to the use of water upon his riparian land within the watershed of the stream. He may take his proper proportion of the water. The surplus must be re- turned to the channel of the river at the lower boundary line of his land. After he has thus used his legitimate part of the water he can- not object to its diversion to any beneficial use by the lower riparian owners and appropriators or their successors in interest." This case says that a riparian right is limited to riparian needs in favor of nonriparian surplus use be- low. After the water has gone by the riparian owner, he has no con- cern in it, it is true; but this case made him let it go by; enjoined him from acting upon it before it ^got by him; gave affirmative aid and , help (injunction and quieting title) to the nonriparian use which re- stricted a riparian owner. Under it a nonriparian use at a stream's mouth can prevail against all ri- parian proprietors above, as to the surplus over their needs, in irrecon- cilable conflict with Miller v. Madera Co., considered supra, sec. 817. How- ever, the case of People ex rel. Ricks etc. Co. v. Elk River Co., 107 Cal., at 226, 48 Am. St. Rep. 121, 40 Pac. 486, 823 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 877 (3d ed.) 823. Some Rulings in Other Common-Law Courts. The gen- eral attitude of the Western Federal courts is to allow some nonriparian diversion. In cases of water to which a military or Indian reservation is riparian, surplus nonriparian diversions by private parties have been, to some extent, allowed. To any extent which would impair use of the water on the reservation in the future to its full possibilities (whether now fully or at all used there or not) such nonriparian diversion is absolutely enjoined; but they allow nonrip'arian diversions of any surplus over the quantity which could, at any time even in the future, be put to use on the reserva- tion. 2 Even between private parties solely, the Federal courts have, in effect, upheld nonriparian diversions of 'sue 1 * surplus ; and, where large communities were involved, have apportioned the water with little regard to whether some were nonriparian owners (appropri- ators) and some riparian owners. 3 And there are other decisions of the Western Federal courts allowing some nonriparian diversion against riparian owners under the common law. 4 A decision of the supreme court of the United States may, perhaps, be cited, holding, in a New Mexico case, that a statute allowing appropriations of surplus water cannot result in infringement of riparian rights even if such rights exist in New Mexico, because the statute expressly limits the appropriation to " surplus" water. 5 Likewise in State courts, besides the California cases already noted, there are minority decisions to the .effect that such a surplus may exist. In South Dakota a nonriparian diversion has been up- held against a riparian owner, after fixing by degree the amount of one hundred inches as the amount necessary for the riparian land. 6 In Washington a nonriparian owner has been allowed to en- join acts of an existing riparian owner, 7 and it is provided in Wash- ington and Oregon by statute that nonriparian diversions may be is directly contra as to pollution, hold- *> Gutierres v. Albuquerque etc. Co., ing that the nonriparian user below 188 U. S. 545, 23 Sup. Ct. Rep. 338, stream cannot restrain pollution by an 47 L. Ed. 588, quoted supra, sec. 181. upper riparian owner. And so is the 8 Lone Tree D. Co. v. Cyclone D. general English mle contra, as dis- Co., 15 S. D. 519, 21 N. W. 355; Lone cussed below under the topic of "grants Tree D. Co. v. Cyclone D. Co. (S. D.), for nonriparian use," sec. 847. 128 N. W. 596. See, also, Redwater 2 Supra, sec. 207. etc. Co. v. Reed (S. D.), 128 N. W. 3 Supra, sec. 310 et seq. ; Union 702; Same v. Jones (S. D.), 130 Min. Co. v. Dangberg, 81 Fed. 73; N. W. 85. Anderson v. Bassman, 140 Fed. 14. ? Northport Brewing Co. v. Perrat, 4 Cruse v. McCauley, 96 Fed. 369 ; 22 Wash. 243, 60 Pac. 403. Ison v. Nelson Mng. Co., 47 Fed. 179. 878 (3d ed.) Ft. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 824 made of surplus over riparian needs. 8 As elsewhere cited, it was once so ruled in England (since overruled) and New England. 9 Accordingly, there are authorities to the general effect that, since there must be depreciation shown to the value of the riparian estate, what constitutes such depreciation is a general question of fact, to be left to a jury without further guide. 10 Some qualification upon the right of a riparian owner against a nonriparian owner, even at common law, has been said to be "the American rule. ' ' u (3d ed.) 824. Same. An argument frequently made is a reductio ad absurdum first used by a' great American judge, quoted in a pre- ceding section in dealing with the question between riparian owners, but which he there actually applied to a case where defendant, a nonriparian owner, used water upon nonriparian land. 12 It was also used in an English case. 13 And so, also, in Modoc L. & L. Co. 8 Washington, Pierce's Code, sec. 5821; Oregon, Stats. 1909, c. 216, sec. 70. In Oregon the decisions were in hopeless confusion until Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728, cut the knot and avowedly acted outside the com- mon law. Supra, sec, 129. See Madigan v. Kougarok M. Co., 3 Alaska, 63, a case of minor author- ity, since it has been ruled that riparian rights do not exist in Alaska. Su'pra, sec. 118. 9 Supra, sec. 817. W In a case holding that a railway company may dam a stream and use water for locomotives (i. e., nonri- parian use) if lower proprietors are not injured, it was said: "If the use by the railroad causes no material in- jury to the owner [below], then no recovery can be had, and this is a ques- tion of fact for the jury to deter- mine." Anderson v. Cincinnati So. By., 86 Ky. 44, 9 Am. St. Rep. 263, 5 S. W. 49. To the same effect is the judgment of Chief Justice Shaw in the Massachusetts case of Elliott v. Fitchburg Ry., 10 Gush. (Mass.), 193, 57 Am. Dec. 85. 11 Note by Mr. Justice Holmes to 3 Kent's Commentaries, 14th ed., p. 689; 24 Am. & Eng. Ency. of Law, 982 ; Doremus v. City of Paterson, 63 N. J. Eq. 605, 52 Atl. 1107 (but see S. C., 65 N. J. Eq. 711, 55 Atl. 304); Gillis v. Chase, 67 N. H. 161, 68 Am. St. Rep. 645, 31 Atl. 18; Lawrie v. Silsby, 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106; Same v. Same, 82 Vt. 505, 74 Atl. 94 (affirmed in Percival v. Williams, -82 Vt. 531, 74 Atl. 321). 12 Chief Justice Shaw in Elliott v. Fitchburg etc. Ry. Co., 10 Gush. (Mass.) 191, 57 Am. Dec. 85, quoted supra, sec. 798. 13 Kensit v. Great Eastern Ry. (1884), 27 Ch. D. 122, a case upon which doubts were later cast in Mc- Cartney v. Londonderry Ry., [1904] App. Cas. 301, but which has not been expressly disapproved or overruled in England, and on the contrary has been quoted with approval in America. The nonriparian owner in the Kensit case diverted water for use in cooling certain machinery and returned it un- diminished and unpolluted in its original condition back to the stream. The plaintiff lower riparian owner claimed this to be a wrong per se, but the decision was against him, and an injunction refused. Bagally, L. J., said, "It is impossible that there should be any injury"; and Lord Lindley said: "There is no injury to the plaintiffs, either actual or pos- sible"; and he further said: "It is said that a man wlw is not a riparian 824 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 879 v. Booth, 14 the same argument is used, saying: "If this be not so, it would follow, for example, that an owner of land bordering on the Sacramento River in Yolo County could demand an injunc- tion restraining the diversion of any water from that river for use in irrigating nonriparian lands in Glenn or Colusa County. And yet no one, probably, would expect such an injunction, if asked for, to be granted, or, if granted, to be sustained." And in another case: "A riparian owner on the Mississippi River might seek to enjoin the diversion of the waters of Sage Creek in Wyoming be- cause they eventually reach the Missouri River, and finally through that river flow into the Mississippi. This argument might be classed under the head of reducMo ad absurdum, which sometimes is very effective as illustrating results which may flow from doing a given thing." 15 It must be noted, however, that regarding this expres- sion in the Modoc case, Mr. Justice McFarland in the Vernon case, 16 concurring specially, said: "Illustrations drawn from supposed riparian rights in such rivers [the Mississippi or Sacramento] are scarcely more pertinent than would be illustrations from supposed riparian rights on the Gulf Stream," which is quoted with approval in the Federal court, 17 and had the approval of recent decisions of the California supreme court, which recently said that the Modoc case must be disregarded unless it can stand on the storm-water proprietor has no right to take water it would produce any damage to the from a stream at all, and if I, a ri- opposite or lower riparian owners, parian proprietor, find anybody who is then that would give a right of action, not a riparian proprietor taking water although no actual injury was shown from the stream, although I am not to have resulted from it." But deny- damnified, I can maintain an action ing injunction because the diversion for an injunction. Now, this is a in the case by a nonriparian owner very startling proposition, and one could not in any way produce any in- would like to see some authority for jury or loss to plaintiffs, present or it. It goes to an extent which is future, and no prescription would bordering on the absurd. According arise. Cotton, L. J., further said: to that, if I am a riparian proprie- "The plaintiffs, therefore, in my opin-- tor near the mouth of the Mississippi, ion, have not suggested anything upon and somebody a thousand miles up which we could say that from the act diverts the water, although not to my which has been done without legal detriment, I can sustain an injunction. authority, although not producing any That is ridiculous The argu- loss to them now, loss may hereafter ment cannot be maintained unless we result." (Italics ours.) say that a riparian proprietor cannot 14 102 Cal. 151. 36 Pac. 431. allow anybody to take any water out 15 Morris v. Beam (Mont.), 146 of a stream whether anybody is in- Fed. 425. See, also, Kansas v. Colo- jured or not. It seems to me it would rado, 206 U. S. 46, 27 Sup. Ct. Rep. be monstrous to decide anything of 655, 51 L. Ed. 956. the sort." The injunction was re- 16 106 Cal. 237, 39 Pac. 762, supra. fused, Cotton, L. J., saying: "If 17 Cal. etc. Co. v. Enterprise etc. there was a reasonable prospect that Co., 127 Fed. 241. 880 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 825' principle below considered ; 18 but more recently still reaffirmed the Modoc case most emphatically, and quoted the foregoing passages from it as correct doctrine. 19 (3d ed.) 825. Storm Waters. In a large part of California all the late summer flow is now in full use, and is called the "normal flow." Further irrigation must come from storing the earlier flow from the winter and spring floods, to hold it for use later in the season. Consequently some California cases have, in this connection, dis- tinguished storm or flood waters in a stream from the natural flow thereof. Granting, if necessary, that the riparian proprietor is en- titled to the whole natural flow, even if it is shown that it cannot all contribute value to his estate or to its potential use, yet the cases now in view hold that storm waters even after reaching the channel are not part of the natural flow, but a fortuitous foreign body of water that has made its way there, retaining their character as "surface water" even after reaching the channel. 1 " 6 Conse- quently, while asserting that impossibility of damage is immaterial where the natural flow is alone concerned, they refuse to recognize any right in the riparian proprietor to this nonnatural flow in the absence of possible damage to his land from loss of it. 7 This is in 18 Anaheim W. Co. v. Fuller, 150 owners, but with some indication of Cal. 327, 88 Pac. 978; Miller v. a desire to apply the same to non- Madera Co., 155 Cal. 59, 99 Pac. 502, riparian owners). The case of Edgar 22 L. E. A., N. S., 391. v. Stevenson is usually cited to this 19 San Joaquin Co. v. Fresno Flume effect, though it was decided with- ' Co. (Cal. 1910), 112 Pae. 182. out attention to the fact that plain- 1-6 Supra, sec. 347. tiff was a riparian owner, and its 7 Edgar v. Stevenson, 70 Cal. 286, citations are cases where both parties 11 Pac. 704; Heilbron v. L. & W. claimed as appropriators only. See, Co., 80 Cal. 189, 22 Pac. 62; Modoc also, Miller v. Enterprise Co., 145 L. & W. Co. v. Booth, 102 Cal. 151, Cal. 652, 79 Pac. 439; Anaheim W. 36 Pac. 431; Fifield v. Spring Val- Co. v. Fuller, 50 Cal. 334, 88 Pac. ley W. Co., 130 Cal. 554, 62 Pac. 978; Huffner v. Sawday, 153 Cal. 1054; Coleman v. Le Franc, 137 86, 94 Pac. 427; Miller & Lux v. Cal. 214, 69 Pac. 1011; San Joaquin Madera etc. Co., 155 Cal. 59, 99 Pac. Co. v. Fresno Flume Co. (Cal. 1910), 502, 22 L. E. A., N. S., 391; Miller 112 Pac. 182. See, also, dissenting v. Bay Cities Co., 157 Cal. 256, 107 opinion of Chief Justice -Beatty in Pac. 115; Cal. Pastoral Co. v. Enter- Baxter v. Gilbert, 125 Cal. 584, 58 prise Co., 127 Fed. 743; Bliss v. Pac. 129, 374; and concurring opin- Johnson, 76 Cal. 596, 16 Pac. 542, ion of Shaw, J., in Miller v. Bay 18 Pac. 785. In 1911 a California Cities Co., 157 Cal. 256, 107 Pac. statute speaks of storage of flood 115; and opinion of Shaw, J., in waters. See Cal. Stats. 1911, c. 406, Turner v. James Canal Co., 155 Cal. sec. 17. 82, 132- Am. St. Eep. 59, 99 Pac. A Massachusetts statute provided 520, 22 L. E. A., N. S., 401, 17 Ann. for condemnation of stream waters . Cas. 823 (a case between riparian that were in excess of the "natural I 825 Ch. 35. AGAINST NONBIPABIAN OWNERS. (3d ed.) 881 accord with a similar suggestion in Lux v. Haggin: 8 "We are not prepared to say but that even where the common law prevails, pro- vision may be made for the storing and distribution of waters, the result of extraordinary floods caused by the melting of the snows, or long-continued and heavy rains in the mountains or near the source of a river, since such an extraordinary freshet would not be the ordinary flow of the stream." As to such storm waters, their taking has been held to be wrongful only when actual or prospective damage is possible to the use of the land of the complaining riparian proprietor. When not so, the tak- ing has been allowed. 9 When damage possible, denied ; thus, surplus over ordinary flow cannot be diverted from riparian owners in ab- sence of a showing at what stages, if at all, the surplus could be diverted without damage to the riparian proprietors. 10 This rule has been approved in Nebraska, 11 saying: "Connected with this same question is involved the right of the plaintiff, even as against a riparian owner, to divert the storm or flood waters passing down the stream in times of freshets. Hall at most, as a riparian owner, was entitled to only the ordinary and natural flow of the stream, or so much as was found necessary to propel his mill machinery, and could not lawfully claim, as against an appropriator, the flow of the flood waters of the stream." flow." Held, this means the ordi- (1857), 19 D. 1006 (Scotch), cited nary flow when not increased by un- in Ferguson on The Law of Water usual freshets or rains, such unusual in Scotland, p. 230.) freshets or rains being "surplus 8 69 Cal. 255, 10 Pac. 674. water." Nemasket Mills v. City of Modoe L. & L. Co. T. Booth, 102 Taunton, 166 Mass. 540, 44 N. E. Cal. 151, 36 Pac. 431. In Fifield v. 609. Spring Valley Water Works, 130 But see Burwell v. Hobson, 12 Cal. 552, 62 Pae. 1054, it is held that Gratt. (Va.) 322, 65 Am. Dec. 247; a riparian proprietor is not entitled McCarter v. Hudson W. Co., 70 N. to an injunction to restrain a water J. Eq. 695, 118 Am. St. Rep. 754, company engaged in supplying water 65 Atl. 489; Sparks etc. Co. v. for public use from diverting the Town of Newton, 57 N. J. Eq. 383, storm or flood waters of the creek 384, 41 Atl. 385; Dorman v. Ames, which will not prevent the flowing 12 Minn. 451 (Gil. 347). See, also, over his land of the ordinary waters Ames v. Cannon etc. Co., 27 Minn. of the stream, nor in any way 245, 6 Atl. 787. Says a Scotch case: damage his land, or interfere with "A superior heritor is no more en- the rights appurtenant thereto. Fol- titled to divert the excess of water lowed in San Joaquin Co. v. Fresno in time of flood over the ordinary Flume Co. (Cal. 1910), 112 Pac. 182. flow without returning it before the 1 Semble, Miller v. Enterprise etc. stream reaches the lands of the in- Co., 145 Cal. 652, 79 Pac. 439; Mil- ferior heritor than he is entitled to ler v. Madera Co., 155 Cal. 59, 99 appropriate the ordinary flow, and Pac. 502, 22 L. R. A., N. S., 391. a flood may be of great value for u Crawford v. Hathaway, 67 Xeb. scouring or keeping clean a water- 325, 108 Am. St. Rep. 647, 93 N. W. course." CMacLean r. Hamilton 781, 60 L. R. A. 889. Water Rights 56 882 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN RIGHTS. 825 But the distinction between a natural and non-natural part of the river has been denied. In an early case it is said : ' ' But the rights of the riparian proprietor do not depend up'on the quantity of water flowing in the stream. Nor can that flow be said to be an extraor- dinary flow which can be counted upon as certain to occur annu- ally and to continue for months." 12 And in defining what may be such extraordinary flow the more recent cases have so narrowed it as almost to destroy it. Thus, some recent California cases ex- plain it as applicable only where "during times of extraordinary floods such diversion will not perceptibly diminish the stream be- low," meaning, apparently, to apply the principle only where the facts show the diversion to be within the rule "de minimis." 13 The other recent California cases reach a similar result by narrow- ing the definition in another way and holding it not to include annual or periodical swellings of a stream, even if due to storms, if those storms are seasonal; and this is held where the storm stage of the river continued for several months, 14 or even if the storm stage lasts only a few days at a time, so long as it is regularly re- current. 15 12 Heilbron v. Fowler etc. Co., 75 Cal. 431, 7 Am. St. Rep. 183, 17 Pac. 535. 13 Anaheim W. Co. v. Fuller, 150 Cal. 327, 88 Pae. 978; Huffner v Sawday, 153 Cal. 86, 94 Pae. 424. See, also, McFarland, J., concurring, in Vernon Irr. Co. v. Los Angeles, 106 Cal. 237, 39 Pac. 762. The same explanation is given in City of Pat- erson v. East Jersey W. Co., 74. N. J. Eq. 49, 70 Atl. 472 (but holding a diversion of ten per cent not "do minimis"). This would not leave the doctrine of great practical impor- tance, since the flood waters consti- tute the major portion of California streams in winter, and a diversion of them is not only perceptible, but is practically a diversion of the en- tire winter stream. 14 Miller v. Madera Canal Co., 155 Cal. 59, 99 Pac. 502, 22 L. R. A., N. S., 391, quoted infra. In a case in the Federal court for Southern California it was said: "Storm or freshet waters, which any person who can may impound and use, are 'such waters as flow down a stream during and after a rainstorm, and which are in excess of the ordinary flow.' [Citing Fifield case]. I am of opinion, from the evidence submitted on this hearing that the waters which the canal and dam in controversy in this suit were intended to divert, and are capable of diverting, do not fall within said definition, but are' a flow which comes every year and lasts for three or four months." Cal. Past. Co. v. Enterprise Co., 127 Fed. 743. In the Edgar case above, the heavy rains relied on continued "dur- ing the last winter and spring" (70 Cal. 289, 11 Pac. 704). In the Heilbron cases the floods referred to "continued for months," as is seen by the report in 75 Cal. 117, 17 Pac. 65. In the Modoc case the rise like- wise was a matter of four months, viz., June, July, August and Septem- ber (102 Cal. 158, 36 Pac. 431). In the Fifield case the definition of the extraordinary water was so broad as to include any water "after a rain- storm." In the Coleman case it was the water accumulated during a whole season. i Miller v. Bay Cities W. Co., 157 Cal. 256, 107 Pac. 115. 825 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 883 In the recent case of Miller v. Madera etc. Co. 16 it was held that to constitute such non-natural waters, the rise must be extraordinary and occurring only on very rare occasions. It is not sufficient if an annual overflow, of regular annual occurrence, even if at highest stages overflowing banks and spreading over adjacent low-lying lands, where the overflow continues to move down with the main flow in a continuous body, not becoming vagrant, lost or wasted, but recedes back into the channel when the water stage lowers, and is a condition to be anticipated in every season of ordinary rainfall, failing only in seasons of drought. On rehearing this was emphat- ically affirmed, the court saying (per Mr. Justice Sloss) that such facts distinguish the case from the Modoc and Fifield cases, and that no storm-water problem is involved upon such facts. This definition of what is such non-natural flow so narrows it as to prac- tically destroy the distinction between different parts of the stream upon any supposed basis of one segment being natural flow overlain by or next to some other kind of a flow in the same channel. 17 16 155 Cal. 59, 99 Pac. 502, 22 L. R. A., N. S., 391. 17 The court said, per Mr. Justice Sloss, that "such flow was one which occurred in almost every season of normal rainfall, and that it passed the plaintiff's land in a continuous body of water, through a well-de- fined channel, and eventually emptied into the San Joaquin River and through it into the sea. That the owners of land bordering upon such a flow of water are riparian pro- prietors, entitled to all the rights pertaining to riparian ownership, is a proposition fully sustained by the authorities cited in the department opinion. It is suggested that a different rule should apply in a semi-arid climate like that of Califor- nia, where the fall of rain and snow occurs during only a limited period of the year, and, consequently, streams' carry in some months a flow of water greatly exceeding that flow- ing during the dry season, with the result that such increased flow is not, at all points, confined within the banks which mark the limits of the stream at low water. But no author- ity has been cited, and we see no sufficient ground in principle, for holding that the rights of riparian proprietors should be limited to the body of water which flows in the stream at the period of greatest scarcity. What the riparian pro- prietor is entitled to as against non- riparian takers, is the ordinary and usual flow of the stream. There is no good reason for saying that the greatly increased flow following the annually recurring fall of rain and melting of snow in the region about the head of the stream is any less usual or ordinary than the much diminished flow which comes after the rains and the melted snows have run off. Perhaps other considera- tions should apply where a river, in times of heavy flow, runs over its banks in such manner that large vnlumes of water leave the stream and spread over adjoining lands to an indefinite extent, there to stagnate until they evaporate or are absorbed by the soil. But the evidence of re- spondent, and this was the evidence on which the court below acted, fails to show that the water which defend- ant seeks to divert was such 'vagrant water,' " etc. Miller v. Madera Canal Co., 155 Cal. 59, 99 Pac. 502, 22 L. R. A., N. S., 391. 884 (3d ed.) Pt. IV. THE COMMON LAW OF KIPAEIAN EIGIITS. 826 In the later case of Miller v. Bay Cities W. Co. 18 it was laid down that "there can be DO question" but that nonriparian diversion may be made against a riparian owner of water which can serve no useful purpose in its natural situation, but in very emphatic terms denies that flood waters serve no useful purpose to riparian lands, however rapidly they pass by, saying that only when they reach the sea can they be called waste waters serving no useful purpose to neighboring landowners. The facts presented as extreme a type of storm waters as can occur. The opinion is too long to admit of quotation here, especially as it is considered in connection with per- colating waters hereafter. 19 In the still later case of San Joaquin Co. v. Fresno Flume Co. 20 the court reviews the foregoing authorities and says: "It will be found, therefore, that the decisions of this state not only do not deny the right to the use of storm and flood waters, but encourage the impounding and distribution of those waters wherever it may be done without substantial damage to the existing rights of others." 21 (3d ed.) 826. Same. As a whole, these cases have pretty much dropped the flood-water distinction, and proceed instead upon the minority contention already set forth, that possible damage to the complaining proprietor's capacity of use, or loss of possible benefit to his riparian land, prospective if not now present, must be shown before an act is wrongful. This was the way in which the California court explained them without the insertion of the flood-water idea, saying in Miller v. Madera Co.: 22 "But counsel for appellants rely upon the cases of Fifield v. Spring Valley Waterworks ^ and Cole- man v. La Franc, 24 in support of their claim that a riparian pro- prietor cannot restrain the diversion of the storm or freshet waters of a stream when such diversion will not prevent the flowing over his land of the ordinary waters of the stream, or in any way inter- fere with his rights appurtenant thereto. We do not understand 18 (1910), 157 Cal. 256, 107 Pae. artificial increment in the stream pro- 115. duced by defendant; which together 19 Infra, sees. 1057, 1087. make the passage in the text to be 20 (Cal. 1910), 112 Pac. 182. only obiter. 21 It should be noted in this case 22 155 Cal. 59, 99 Pac. 502, 22 L. that the opinion closes by saying de- E. A., N. S., 391. fendant was a riparian owner mak- 23 139 Cal. 352, 62 Pac. 1054. ing riparian use only; and further 24 137 Cal. 214, 69 Pac. 1101. point is made of the existence of an 826 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 885 these authorities cited to sustain the proposition as broadly as ap- pellant contends All they decide is, that an injunction re- straining the diversion of storm or flood waters will not be granted at the instance of a riparian owner when it appears that he will not be injured in any way by such diversion." And the later case of San Joaquin Co. v. Fresno Flume Co., 25 said the same thing. A point sometimes mentioned in the storm-water cases is that of recapturing artificial increments to a stream, as considered in the first part of this book. 1 Where the facts show that the presence of such waters in the channel is due to the labor of the impounder,it is an artificial increment to the stream produced by the labor of man, and belongs to him who produced it, because a man must be allowed to enjoy the fruits due to his own labor alone. Speaking of a reservoir constructed in a place where there never was a watercourse, it has been said arguendo: ''The water itself is the property of the company. It was not taken from a running stream nor from a lake It was collected by the company as it de- scended from the heavens. Whatever may be the differences of opinion as to the ownership of running waters, or of waters of navigable streams, or of lakes, it has never been doubted that water collected by individual agency, from the roof of one's house, or in hogsheads, barrels or reservoirs, as it descends from the clouds, is as much private property as anything else that is reduced to possession, which otherwise would be lost to the uses of man. ' ' 2 This applies to artificial increment of a stream brought to flow by the works of man alone 3 arid it applies to the impounding of storm waters before they ever reach a stream channel* In a recent Cali- 25 (Cal. 1910), 112 Pac. 182. that this right cannot extend further 1 Supra, sees. 38, 61, 279. than a right to the flow in the brook 2 Dissenting opinion of Field, J., itself, and to the water flowing in in Spring Valley W. W. v. Schottler, some defined natural channel, either 110 U. S. 347, 4 Sup. Ct. Rep. 48, 28 subterranean or on the surface, com- L. Ed. 173. municating directly with the brook *3 Pomona W. Co. v. San Antonio itself. No doubt, all the water fall- W. Co., 152 Cal. 618, 93 Pac. 881. ing from heaven and shed upon the "The right of the inferior heritor is surface of a hill, at the foot of only to receive the natural supply of which a brook runs, must, by the water, and where that is supple- natural force of gravity, find its way mented by artificial operations, he to the bottom, and so into the brook; cannot complain if the artificial con- but this does not prevent the owner dition is reduced." Ferguson on The of the land on which this water falls Law of Water in Scotland, p. 231. from dealing with it as he may 4 In a leading case it is said: "The please, and appropriating it. He right to the natural flow of the water cannot, it is true/ do so if thf water in Longwood Brook undoubtedly be- has arrived at and is flowing in some longs to the plaintiff; but we think natural channel already formed. But 886 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 827 fornia " storm-water " case, point was made, in refusing an injunc- tion, "that the dam actually increases, and certainly does not diminish, the waters of Stevenson Creek. ' ' 5 But the storm-water argument, as a rule, has been one to impound waters already in a channel, when they came there by nature; the claim of artificial agency extending only to the detention or diver- sion thereof. The principle of recapturing from the channel the fruits of one's own labor consequently does not usually apply. C. CAN THESE MINORITY RULINGS BE RECONCILED TO PRIN- CIPLE? (3d ed.) 827. The Answer must be Made Under the Common Law. It being long settled that the common law of riparian rights is in force in California, it need hardly be said that to declare these minority rulings to be more to one's liking is not reconciling them to principle. That may be well enough in Colorado, where riparian rights are rejected, but the only legitimate inquiry in a common -law jurisdiction is whether they can have support in the common law of riparian rights itself; and in these minority California cases there is only one having any other idea. 6 We proceed to an inquiry under the common law alone. (3d ed.) 828. Possible Distinction Between Diminution of Flow and Depreciation of Estate. For the holding that nonriparian diver- sion is per se wrongful there appear to be distinct grounds taken in different cases. The usual one is in attributing it to the doctrine of injuria sine damno. That involves defining the riparian right as one to the floiv, rather than to the use (present or future) of the riparian land. As is said in one of the leading cases in the law of waters, "We by no means dispute the truth of this proposition with respect to he has a perfect right to appropriate (Cal. 1910), 112 Pac. 182. Hereto- it before it arrives at such a channel. fore, California "modification" state- In this case a basin is formed in his ments uniformly referred only to land, which belongs to him, and the riparian uses between themselves water from the Heavens lodges there. (supra, sees. 673, 699, 749a, 799), and ' There is here no watercourse at all" denied "modification" when a nonripa- (being a natural pond). Broadbent rian use stepped in. The minority rul- v. Ramsbotham, 11 Ex. 602. ings above never asserted that they 5 San Joaquin Co. v. Fresno Flume were modifying the common law, but, Co. (Cal. 1910), 112 Pac. 182. on the contrary, claimed that they 6 San Joaquin Co. v. Fresno etc. Co. were following its true intent. 828 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 887 every description of right. Actual perceptible damage is not in- dispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage ; injuria sine damno is actionable But in applying this ad- mitted rule to the case of rights in running water, and the analogous cases of rights to air and light, it must be considered what the nature of those rights is, and what is a violation of them." 7 This authority then proceeds to show that the nature of the riparian right is primarily one to the use of one's land (a usufruct) in a passage we quoted in a preceding chapter. 8 The rule of injuria sine damno unquestionably applies without regard to actual damage to present use. 9 But in applying the rule also without inquiry into prospective or future detriment to the use or value of the riparian estate, perhaps such decisions illustrate the result of regarding the right of the riparian proprietor as one to the stream itself as a corpus of the freehold, under the "cujus est solum" doctrine, in- stead of as a usufruct a matter concerning which we refer the reader to a previous chapter. 10 The doctrine of injuria sine damno cannot itself make nonriparian diversion actionable per se unless the riparian right be defined one to the flow as representing the body of the stream, distinguished from the use and benefit of the land, and we believe such definition of the riparian right rests upon the "cujus est solum" doctrine, which properly has no application to the water of running streams. With that laid aside, the question would have to be, not whether there was an interference with the flow of the stream, but whether there was interference with the value of the riparian estate, or (in the absence of present damage) with its possible future en- joyment. Then nonriparian use might not be actionable where such loss or detriment is impossible upon the facts, as where the complaining riparian land is an alkali flat, worthless for irri- gation. 1 7 Baron Parke, in Embrey v. Owen, 853, discussing Bickett v. Morris, L. R. 6 Ex. 352, 20 L. J. Ex. 212. 1 H. L. (Sc.) 47, which had seemed to 8 Supra, sec. 694. hold any erection in the bed of a stream 9 Supra, sec. 816. to be a nuisance per se (alveo being 10 Supra, sees. 2 et seq., 34, 696 et the name for "bed" in civil law, these se q. being Scotch cases). For another i "But I do not think it was in- case discussing Bickett v. Morris un- tended to be decided, and I do not favorably, see Norway Co. v. Bradley think it is the law, that an erection (1872), 52 N. H. 86. Referring to in alveo of a natural stream is illegal Bickett v. Morris the vice-chancellor per se," etc., per Lord Blackburn, in in Belfast Ropeworks Co. v. Boyd Orr Ewing v. Colquhoun, 2 App. Cas. (1887), 21 L. R. Ir. 565, said: "I 888 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 829 (3d ed.) 829. Same. But more difficulty is given by other reasons for holding it wrong per se, while admitting that in principle there must be a possibility of damage (present or future) to the riparian estate to put the .nonriparian owner in the wrong. One is that impossibility of damage is merely a matter of words for the doc- trine "de minimis." 2 And so, for example, it is said in effect by Mr. Justice McFarland, 3 that this is all that the reductio ad absurdum above mentioned comes down to. Or, without identifying "impossibility of detriment" with cases of "de minimis," it is said that, admitting the necessity of such possible detriment in principle, yet in practice it is impossible to prove w r hat may be a future detriment ; that the range of inquiry it opens into the future would be forbidding to riparian owners, and impractical of application. 4 An illustration frequently put is given in some of the California cases saying that "the flow of water of a stream, whether it overflow its banks or not, naturally irrigates and moistens the ground to a great and unknown extent, and thus stimu- lates vegetation, and the growth and decay of vegetation add not take the law to be as stated by Mr. 3 Concurring specially in Vernon Shaw in his able and clear argument, Irr. Co. v. Los Angeles, 106 Gal. 237, that it was not meant that the mere 39 Pac. 762. erection of a structure is per se & * "I agree with your Lordship that wrong. There must be an. erection the idea of compelling a party to de- causing present damage, or reason- fine liow it will operate upon him, or ably likely in the future to do so ; what damage or injury it will produce, and the riparian proprietors who can is out of the question." Lord Neaves show that the erection of the structure in Morris v. Bickett (1864), 2 M. is reasonably likely to cause damage, 1082, 4 M. H. L. 44 (Scotch) ; Fer- may bring an action to have the ob- guson on The Law of Water in Scot- struction removed." (But adds, "the land, p. 200. In an English case it mere sale of water itself to anyone is said: "Lord Westbury concurs in not a riparian proprietor is unreason- this judgment entirely, and the prin- able and illegal.") ciple, one sees at once, is applicable 2 In Bickett v. Morris (supra) on to the present case. It is this: appeal to the House of Lords (1 H. 'You, as a riparian proprietor, see L. (Sc. App.) 47, at 59), Lord Corn- something done which is not at all worth declared: "It was said in to your detriment now, but may argument, 'Then, if I put a stake in hereafter be greatly to your detri- the river, am I interfering with the ment, though you cannot precisely rights of the riparian proprietors?' point out how, or to what extent; if To this I Should answer, de minimis you do not interfere, a right will be non curat praetor. But further, it acquired against you by which you might be demonstrated in such a will hereafter be affected; and you case, not that there was an extreme have a right to say, things shall re- improbability, but that there was an main exactly as they were.' " Crossley impossibility of any damage result- v. Lightowler, L. Ii. 3 Eq. 296. ing to anyone from the act." (Italics inserted.) 830 Ch. 35. AGAINST NONRIPARIAN OWNERS. (3d ed.) 889 only to the fertility, but to the substance and quantity of the soil," 5 which clearly admits the necessity that there be a detriment to the riparian estate rather than merely to the flow, but considers inquiry into its extent to be too problematical and incapable of ascertain- ment to be entertained in practice. 8 There may be much force in both of these positions ; 7 ~ 15 but for California purposes it seems pertinent that the percolating water cases, involving the. identical matter, are making the inquiry, and are finding surpluses to exist without' invoking the rule de minimis. Damage from loss of natural subirrigation was examined into, in a recent case of percolating water, as a question of fact, and held not to exist in fact. It was regarded as a question of fact to be proved in the ordinary way, and not assumed. 16 True, the inquiry in the percolating water cases is opening a wide range, and tends to put a heavy burden upon the small farmer protesting distant use, but so far it has been found practical, and there does not seem to be any difference between the theories of the new percolating water cases and those of riparian rights upon streams. Moreover, does not the inquiry have to be made in measuring damage when the riparian right is condemned upon eminent domain ? (3d ed.) 830. Same. It may be, then, that an interference with the possible use or future value of the estate would (irrespective of the rule "de minimis") be a different thing from diminution of flow on larger streams. Upon the smaller streams any nonriparian diminu- tion of flow will per se cause such depreciation, and there will, indeed, be no difference between the two as a rule ; but upon larger streams it may be that there could be a distinction. It may be that the reductio ad absurdum is merely a restatement of the rule de minimis. But it may also be that the reductio ad absurdum is sound ; that diminution of flow by nonriparian use is not a wrong per se; that the wrong arises when (and only when) there is proved as a fact a depreciation caused thereby to the value of the riparian 5 Heilbron cases cited supra, sec. the fertility it imparts to his land, 816. The quotation is from Heilbron and the increase in the value of it." v. Water Ditch Co., 75 Cal. 117, 17 Pugh v. Wheeler, 2 Dev. & B. (N. Pac. 65. C.) 55. 6 "The truth is that every owner of 7-15 See especially sec. 367 , supra. land on a stream necessarily and at all 16 Newport v. Temescal W. Co., 149 times is using water running through Cal. 531, 87 Pac. 372, 6 L. R. A., N. it, if in no other manner than in S., 1098. 890 (3d ed.) Pt. IV. THE COMMON LAW OF EIPAEIAN RIGHTS. 830 estate or to the present or future use of it (wholly irrespective of any question of reasonableness) . It may be noted that in the more recent California cases declar- ing nonriparian diminution of flow per se a wrong, and declaring damage to be entirely immaterial, had a possible prospective dam- age to use been regarded as material, it would have been found to exist on the facts presented and to have warranted injunction even under the Modoc case. The riparian proprietor in the recent cases showed ability to use all the water diverted from him; he had capacity to use it if he in -the future so decided, and, of course, the common law will protect future use as much as present use. As there was thus prospective damage shown, this may possibly be a ground on which to reconcile the later cases with the Modoc case, and have them in no way inconsistent. That there was pros- pective damage in the recent cases appears, for example, in the Anaheim case, saying the taking of a part of the water, would not leave enough for plaintiff's land; 17 and in the Huffner case, say- ing that the right to restrain a diversion "does not rest upon the extent to which they have used the water, nor upon the injury which might be done to their present use. ' ' 18 This may be contrasted with the Modoc case which spoke of there being ' ' no injury to him or his land, present or prospective." Likewise in Miller v. Madera Co. 19 the nonriparian diversion was enjoined because it was water "which is or may be beneficial to his land"; and in Miller v. Bay Cities Water Co., 20 because the water "served some useful purpose" in connection with the neighboring lands. Of all these cases it might be said, as was said in a Connecticut case frequently cited in support of the rule of injuria sine damno, "It does not appear that there was any controversy between the parties on the question whether the stream was capable of being beneficially used upon the plaintiff's land The case, therefore, is not one where a pro- prietor bounding on a stream seeks to recover -for a diversion of it from his land when the water, if not so diverted, could not have been used for any beneficial purpose." 21 17 Anaheim etc. Co. v. Fuller, 150 18 (Cal.), 94 Pac., at 426. Italics Cal. at 335, 88 Pac. 978, saying : "The ours - court finds, on sufficient evidence, that 155 Cal. 59, 99 Pac. 502, 22 ,, ,. . ,, ,, j -, < i L. R. A., N. S.. 391. the diversion of the defendants, it al- 20 .--' ~ , 9 Vg , p ,,,. lowed, would render plaintiffs land 21 Parker v. Gris'wold, 17 Conn. 288 , much less fertile and valuable." 42 Am. Dec. 739. 831 Ch. 35. AGAINST NONEIPARIAN OWNERS. (Sd'ed.) 891 (3d ed.) 831. Application of the Distinction by Confining the De- cision to the Parties Litigant. The application of the foregoing in practice would lie in the principle of confining the decision to the parties litigant. If the riparian right is defined as one to the use of the riparian land, now or in the future, by means of the water, then the rule prohibiting any nonriparian diversion is one for the protection of the whole riparian community, whose combined requirements or possible uses in well-settled regions (such as the common law con- templates) will always (except upon the largest rivers) leave no surplus; and when all the riparian owners are joined in suit, or, under statute so permitting, one sues "for the benefit of all," or the attorney general sues on behalf of the riparian public, then the right of the whole community to have the whole flow may come into play. 22 Any nonriparian diversion in well-settled regions must necessarily be detrimental to the riparian community as a whole except possibly upon large rivers ; and it is upon this public reason that the rule excluding nonriparian use even by riparian owners is ultimately based by the common law. But as a matter of procedure, where one riparian owner alone is seeking to restrain a nonriparian diversion, it may be that he must stand upon its effect upon his own land alone. It would seem no objection to this contention to say that all riparian proprietors, taken collectively, may (and, on small streams usually will) have rights of use which would exhaust the entire stream if exercised, so that any diversion by a nonriparian owner would ipso facto re- sult in at least a prospective damage to the complaining proprietor. On very large streams that might not be true; but even on small streams that proceeds upon the rights of all riparian proprietors considered collectively against the nonriparian owner.; and yet it is certain that they are not collectively represented in the suit itself. All but the individual complaining proprietor are strangers to the suit unless actually brought into court by proper process; and the argument, considering the rights of all the proprietors collectively, is considering the rights of parties who have not appeared in the litigation, and fixing rights between two individuals by reference to outstanding rights in other persons (strangers to the suit), which a general rule of law inhibits. 23 Such other owners may never seek 22 Supra, sec. 627, parties to ac- 23 Supra, sec. 626 et seq. "Then it tions; infra, sec. 881. is put in another way, in an extremely 892 (3 (Cal.), 112 Pae. 182, which affects E]k R < 1Q7 Ca] 221 4g Am gt this point. Rep m 40 Pac. 486. 11 Duckworth v. Watsonville etc. Co., 150 Cal. 520, 89 Pac. 338. Note 1* See, also, Stoner v. Patten the words "beneficial use." Upon a (1909), 132 Ga. 178, 63 S. E. 897. second appeal it was said that where The right of a proprietor to use a a riparian owner used forty inches due proportion of the waters of a of water for nonriparian town supply, stream upon which his lands border, and another riparian owner later took for irrigation' purposes, cannot be one hundred and forty-two inches for affected by the grant of a right to irrigating his riparian land, if this divert the waters of the same stream, were the whole case, the former could made by an adjacent proprietor, have no relief. Duckworth v. Wat- Anaheim Water Co. v. Semi-Tropic sonville Co., 158 Cal. 206, 110 Pae. Water Co., 64 Cal. 185, 30 Pac. 623. 927. 908 (3d ed.) Pt. IV. THE COMMON LAW OP BIPAEIAN EIGHTS. 847 other California cases it is held: "A riparian owner may not au- thorize, as against a lower proprietor, a company to take water from the stream, to be conducted to a distance and sold." 15 And: "From what has been said, it is not to be understood that defendant has a right, as against riparian owners farther down the stream, to divert water from the river for the purposes of sale or for use on lands which are not riparian." 16 And: "In exercising this riparian right the defendants have no right to carry any of the waters of the Los Angeles River off their riparian land for use' on land not riparian, nor can they sell it for use on land not riparian ; and all surplus waters must be turned back into the stream. " 17 So it is held in California that a riparian owner as such cannot rightfully sell or divert to nonriparian land, to the detriment of the riparian estate of any other riparian owner oppos- ing, water which he has a right to use upon his riparian land but which he does not so use. 18 That, as a general rule, diversions of water for sale cannot be made to the detriment of the riparian estate of any opposing, non- contracting, riparian owner, must necessarily follow upon principle from the rule that one proprietor can excuse such detriment to another only on the ground of his own riparian land from owner- ship of which his right arises; and it is the rule supported by innumerable decisions. 19 15 Heilbron v. Canal Co., 75 Cal. California. Anaheim W. Co. v. 426, 7 Am. St. Eep. 183, 17 Pac. 535. Semi-Tropic Co., 64 Cal. 185, 30 Pac. 16 Heilbron v. L. & W. Co.. 80 Cal. 623 5 Lux v - Ha ggin, 69 Cal. 255, 10 194 22 Pae 62 Pac. 674; Heilbron v. Canal Co., 75 ,',''. , Cal. 426, 7 Am. St. Eep. 183, 17 " , ^ 9? ^7 S p a nge ^ V " P mer0y ' Pac. 535 Heilbron v. L. & W/Co., 124 Cal. 621, 57 Pac. 585. 8Q Cal ^ 194> oo Pac . 62; p e0 ple 18 Heilbron v. Canal Co., 75 Cal. e x rel. Eicks etc. Co. v. Elk Hiver 426, 7 Am. St. Eep. 183, 17 Pac. 535; Co., 107 Cal. 221, 48 Am. St. Eep. Chauvet v. Hill, 93 Cal. 407, 28 Pac. 125, 40 Pac. 531; Boehmer v. Big 1066; Gould v. Eaton, 117 Cal. 539, R oc k Co., 117 Cal. 19, 48 Pac. 908; 49 Pac. 577, 38 L. E. A. 181; Bath- Gould v. Eaton, 117 Cal. 539, 49 Pac. gate v. Irvine, 126 Cal. 135, 77 Am. 577 ; 33 L. E. A. 181; Los Angeles v. St. Eep. 158, 58 Pac. 442; Cohen v. Pomeroy, 124 Cal. at 621, 57 Pac. La Canada W. Co., 142 Cal. 437, 76 535 ; Bathgate v. Irvine, 126 Cal. 135, Pac. 47. 77 Am. St. Eep. 158, 58 Pac. 142; 19 The cases already considered, Cohen v. La Canada W. Co., 142 Cal. together with a few others, are col- 437, 76 Pac. 47; Montecito Co. v. lected here. The list is far from com- Santa Barbara, 144 Cal. 578, 77 Pac. plete. (See, also, sec. 766, use 1113; Montecito Co. v. Santa confined to riparian land; sec. 815 et Barbara, 151 Cal. 377, 90 Pac. seq., supra, protection of riparian 935; Duckworth v. Watsonville Co., right; sec. 1123, infra, percolating 150 Cal. 520, 89 Pac. 338; Duckworth water.) v. Watsonville Co., 158 Cal. 206, 110 848 Ch. 36. KIPARIAN CONTRACTS AND CONVEYANCES. (3d ed.) 909 (3d ed.) 848. Some Opposing Decisions. There have been English decisions to the contrary (since overruled), 20 and it has been said that the American rule is contrary to the English rule. 21 In parts of New England the rule is clearly departed from, 22 and there have been rulings in other jurisdictions leaving some room for discus- sion. 23 Likewise in California there are some opposing decisions considered in the previous chapter. Consequently, there is some Pac. 927; Miller v. Bay Cities Co., 157 Cal. 256, 107 Pac. 115. Colorado. Broadmoor etc. Co. v. Brookside etc. Co., 24 Colo. 541, 52 Pac. 792. . Nebraska. Crawford Co. v. Hatha- way, 67 Neb. 325; 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889. New Jersey. McCarter v. Hudson W. Co., 70 N. J. Eq. 695, 118 Am. St. Rep. 754, 65 Atl. 489, 14 L. R. A., N. S., 197, 10 Ann. Cas. 116; City of Paterson v. East Jersey W. Co., 74 N. J. Eq. 49, 70 Atl. 472. New York. Parry v. Citizens W. Co., 59 Hun, 199, 13 N. Y. Supp. 471 ; Standen v. New Rochelle Co., 91 Hun, 272, 36 N. Y. Supp. 92. West Virginia. Saunders v. Blue- field W. Co. (W. Va.), 58 Fed. 133. England. Stockport W. W. v. Pot- ter, 3 Hurl. & C. 300; Omerod v. Tod- morden Co., 11 Q. B. D. 172; Swindon W. W. v. Wilts & Burks etc. Co., 7. H. L. 697; McCartney v. London- derry etc. Ry. (1904), L. R. App. Cas. 301. 20 Below cited. They were over- ruled by those cited above. 21 "In England the right of a non- riparian proprietor, who by contract or license claims the privilege of withdrawing water from a stream, has not been sustained as against upper or lower proprietors not parties to the contract. In this coun- try his contract rights have been pro- tected." Note by Mr. Justice Oliver Wendell Holmes to 3 Kent's Com- mentaries, 14th ed., p. 689. (Citing inter alia the Modoc case in Califor- nia.) In another authority, 24 Am. & Eng. Ency. of Law, 982, the words "English" and "American" are used as designating the rules upon the point. 22 See recent cases in New Hamp- shire and Vermont below cited. There is something to the same effect in the Massachusetts case below cited, but later Massachusetts cases have a contrary tendency. The Massachu- setts case cited upheld the nonri- parian grant if the complaining ri- parian owner is not caused damage "by diminishing the value of Ms land." 23 In Indiana, a nonriparian grantee of a riparian owner has been allowed to recover damages from a lower pro- prietor who backed water upon his mill. Bristol etc. Co. v. Boyer, 67 Ind. 236. In New Jersey, Doremus v. City of Paterson, 63 N. J. Eq. 605, 52 Atl. 1107, held that a grantee of a ri- parian proprietor had a right which a city owning riparian land above could not destroy by pollution without condemning and paying damages, dis- approving Stockport case (being almost identical on facts). On ap- peal, in 65 N. J. Eq. 711, 55 Atl. 304, this was reversed, holding the grantee's right subordinate to that of the city to vent sewage into the stream, expressly following the Stock- port case. Nevertheless the later case recognizes that the grantee had some right, which was conceded to be a property right; also explaining Butler Rubber Co. v. Newmark, 61 N. J. L. 32, 40 Atl. 224, which held that a nonriparian grantee has a right which cannot be taken from him with- out compensation by another non- riparian owner above. In Doremus v. City of Paterson, 70 N. J. Eq. 296, 62 Atl. 3, and Same v. Same, 70' N. J. Eq. 789, 71 Atl. 1134, the court of errors and appeals finally rested the decision upon the same lines as the English cases. In a. later New Jersey case it was held that a ri- parian owner may retain the riparian land but grant rights in the water "which, as against upper riparian owners, are effective only to the ex- 910 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN EIGHTS. 849 authority to the effect that a riparian owner may pass some right to a nonriparian owner or nonriparian use, enforceable against other riparian owners. These authorities are collected in the note. As they constitute a complete list of all that the writer could find after considerable search (while the decisions opposing them are innumerable), it will be seen that they form a very small minority. 24 (3d ed.) 849. How Far the Opposing Cases can be Supported upon Principle. So far as these cases relied (as to some extent they did) upon a contention that the facts showed the nonriparian grantee's use to be a "reasonable use," they are opposed to the weight of authority, and cannot be sustained, either, upon prin- ciple; and since the recent decision in Miller v. Madera Co. 25 are tent that their exercise comes within the limits of the natural riparian rights of the lower owner." Such a grant to a city gives it no right to divert the water, but gives it the same right as its riparian grantor had to restrain a diversion by an upper riparian owner. (The city had near-by lands laid out as a park, and the proximity of the river was im- portant to the park.) City of Pater- son v. East Jersey W. Co., 74 N. J. Eq. 49, 70 Atl. 480. 24 England. Nuttall v. Bracewell, L. K. 2 Ex. 1; Kensit v. Great East- ern Ry., 27 Ch. D. 122, quoted supra, sec. 823; Earl of Sandwich v. Great Northern By., 10 Ch. D. 707. The last, however, was expressly over- ruled in McCartney v. Londonderry Ry., quoted in the preceding section; and if the English decisions still have any force in this direction, it is very limited. California. Arrovo D. Co. v. Bald- win (1909), 155 Cal. 280, 100 Pac. 874, and see cases cited supra, sec. 822 et seq. Indiana. Bristol etc. Co. v. Boyer, 67 Ind. 236. Massachusetts. Elliott v. Fitch- burg Ry., 10 Cush. 191, 57 Am. Dee. 85. But in this matter the later Massachusetts cases have a contrary tendency. Michigan. Hall v. City of Ionia, 38 Mich. 493. Minnesota. St. Anthony Co. v. City of Minneapolis. 41 Minn. 270, 43 N. W. 56. New Hampshire.- Gillis v. Chase, 67 N. H. 161, 68 Am. St. Rep. 645, 31 Atl. 18; Jones v. Aqueduct, 62 N. H. 488. New Jersey. See cases in preced- ing note. Oregon. "Riparian rights may be- come the subject of a grant or dedica- tion, and may be severed from the soil." Coquille Mill etc. Co. v. John- son, 52 Or. 547, 132 Am. St. Rep. 716, 98 Pac. 132 ; Montgomery v. Shaver, 40 Or. 244, 66 Pac. 923; Hough v. Por- ter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. Cf. Jones v. Conn, 39 Or. 30, 87 Am. St. Rep. 634, 64 Pac. 855, 65 Pae. 1068, 54 L. R. A. 630. Pennsylvania. City of Reading v. Althouse, 93 Pa. 400. Khode Island. Matteson v. Wilbur, 11 R. I. 545. Vermont. Lawrie v. Silsby (1904), 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106; Same v. Same (1909), 82 Vt. 505, 74 Atl. 94; Percival v. Williams, 82 Vt. 531, 74 Atl. 321. Miscellaneous. 24 Am. & Eng. Ency. of Law, 982; note by Justice Oliver Wendell Holmes to 3 Kent's Commentaries, 14th ed., p. 689; Decker v. Pac. etc. Co. (Alaska), 164 Fed. 977; note in 40 L. R. A. 393. Some of these cases are positive upon the point under consideration, but most of them show confusion, citing cases decided only between parties or privies to the contract it- self. 25 155 Cal. 59, 99 Pac. 502, 22 L. R, A., N. S., 391. 850 Ch. 36. RIPARIAN CONTRACTS AND CONVEYANCES. (3d ed.) 911 not authority in California. But whether, by confining the deci- sion to the parties litigant, there may, while casting out all thought of "reasonableness," nevertheless be some principle to support them in extreme cases this is a question so closely involved with the previous chapter that the reader is referred there for further dis- cussion. 1 (3d e in another connection, calling any 13 Or. 496, 11 Pac. 255; Gray v. Ft. rule permitting nonuse "a mischievous Plain, 105 App. Div. 215, 94 N. Y. perpetuity." As to percolating water, Supp. 698; Rogers v. Overacker, 4 *** a B " r V ^ lay E ' 7 9-' I 54 ' Cal. Cal App. 333, 87 Pac. 1107. 428 ; 98 Pac - 260 > speaking the same 7 Lux v. Haggin, 69 Cal. 255, 390, way_, but voluntarily as a new matter 10 Pac. 674. "It probably never oc- deciding in favor of the landowner curred to anyone that the owners, by who was not usin g the water - neglecting to appropriate the grasses In Newport v. Temescal etc. Co., and trees naturally growing on such 149 Cal. 531, 87 Pac. 372, 6 L. R. A., lands to some useful purpose, left N. S., 1098. Water Bights 58 914 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 861 would not long since have been used to transform the desert of Ferris valley into a fruitful garden." That is, upon the well-set- tled streams, self-interest will induce the fullest use of all the water by the riparian owners themselves ; and when that stage is reached, the advantage of the limitation to the ' ' reasonable use of one 's own land" outweighs the disadvantage of having to wait for full settle- ment to secure the benefits of the system to the public. In adjusting rights between riparian owners themselves, the riparian owner must be left enough for reasonable riparian use, though no evidence of an intent to make such use appears. 11 Not only is nonuse no abandonment, but nonuse raises no es- toppel in the absence of additional matter showing active miscon- duct as discussed heretofore on the question of estoppel. 12 The magnitude of a hostile investment is not properly enough per se to raise an estoppel. "Before locating the plant the owners were bound to know that every riparian proprietor is entitled to have the waters of the stream that washes his land come to it without obstruction, diversion or corruption, subject only to the reasonable use of the water by those similarly entitled .... and to determine for themselves, and at their own peril, whether they should be able to conduct their business upon a stream of the size and character of Brandywine Creek without injury to their neighbors; and the magnitude of their investment, and their freedom from malice furnish no reason why they should escape the consequences of their own folly." 13 After water passes the lands of a riparian proprietor, so long as it is not thrown back upon him, nothing which can be done to or with it would bind him or require action on his part. It is true that lower down the stream some person, either as appropriator or a lower riparian proprietor, may use and claim to be entitled to the whole of the water, but nothing that can be done with it by another afterward can prejudice the upper proprietor. His inac- tion does not create any inference that he intends to abandon any right he may have, nor is it regarded as an encouragement to the appropriator or user to proceed in his course or to make the expenditures which it may necessitate. It, therefore, does not 11 Wiggins v. Muscupiabe etc. Co., Ind. 394, 57 N. E. 719, 56 L. B. A. 113 Gal. 194, 54 Am. St. Rep. 337, 45 899, granting injunction against pol- Pac. 160, 32 L. R. A. 667. lution. Concerning estoppel, see the 12 Supra, sees. 593, 594. discussion under the law of appropria- 13 Weston Paper Co. v. Pope, 155 tion, supra, sees. 593, 616, 651. 862 Oh. 37. LOSS OF RIPARIAN RIGHT. (3d ed.) 915 give any right either by prescription or estoppel which will pre- vent the upper proprietor, whenever he sees proper, from making such use of the water while on his land as he would be entitled to had no use ever been made of it at some point farther down the stream. 14 In some Nebraska cases the court has greatly weakened upon this rule. 15 But the point chiefly involved in those cases was one of eminent domain, in which connection they are already considered. The doctrine that the riparian right is not affected by nonuse is modified also in Washington in regard to eminent domain pro- ceedings. 16 (3d ed.) 862. Avulsion. 17 The right may be lost by a natural change in the channel, making the stream flow elsewhere ; the riparian pro- prietor has no right to ditch it back. 18 If the change is sudden instead of gradual, it is known as ' ' avulsion. " 19 In case of such sudden change it has been held, however, that the riparian pro- prietor may ditch it back if he does not delay beyond a reasonable time. 20 At all events, he has a right to take precautions by strength- ening the banks against sudden changes by freshets and washouts, 21 w 93 Am. St. Rep. 717, note, 18 Paige v. Rocky Ford etc. Co., citing Hanson v. McCue, 42 Cal. 83 Cal. 84, 21 Pac. 1102, 23 Pac. 305, 10 Am. Rep. 299; Anaheim etc. 875; Wholey v. Caldwell, 108 Cal. 95, Co. v. Semi-Tropic etc. Co., 64 Cal. 49 Am. St. Rep. 64, 41 Pac. 31, 30 192, 30 Pac. 623; Lakeside etc. Co. L. R. A. 820. Dalloz, "Jurispru- v. Crane, 80 Cal. 181, 22 Pac. 76; dence," vol. 40, word "Servitude," Alta etc. Co. v. Hancock, 85 Cal. 219, saying (translated from the French) : 20 Am. St. Rep. 217, 24 Pac. 645; "To exercise the right of irrigation, Bathgate v. Irvine, 126 Cal. 135; it is necessary to be a riparian pro- Walker v. Lillingston, 137 Cal. 401, prietor. If, then, a watercourse conies 70 Pac. 282; Crawford Co. v. Hath- to change its bed, the proprietors who away, 67 Neb. 325, 108 Am. St. Rep. are no longer on the new bed no 647, 93 N. W. 781, 60 L. R. A. 889; longer 'preserve upon it the right of Mud Creek etc. Co. v. Vivian, 74 taking water for irrigation, nor, con- Tex. 170, 11 S. W. 1078. Eschriche sequently, of making constructions to "Aguas," sec. 4 (Spanish law), trans- conduct the waters upon their prop- lated in Hall's Irrigation Develop- erties." Likewise Pardessus on Servi- ment, pp. 378, 379. But see Arroyo tudes, vol. 1, p. 262. D. Co. v. Baldwin, 155 Cal. 280, 77 i Missouri v. Nebraska, 196 IT. S. Am. St. Rep. 158, 58 Pac. 442, hold- 23, 25 Sup. Ct. Rep. 155, 49 L. Ed. ing nipper riparian owner bound to 372; Fowler v. Wood, 73 Kan. 511, let water go by for lower nonriparian 117 Am. St. Rep. 534, 85 Pac. 763, use. 6 L. R. A., N. S., 162. , a CC1 20 York County v. Rollo, 27 Ont. 15 Supra, sees. 616, 651. App 72; Morto / v Oregoj [ Ry c 16 Infra, sees. 864, 865, State ex 43 Qr. 444,, 120 Am. St. Rep. 827, 87 rel. Liberty Lake etc. Co. v. Superior p ac . 151 1046, 7 L. R. A./N. S., 344. Court. 47 Wash. 310, 91 Pac. 968. 21 Cox v. Barnard, 39 Or. 53, 64 17 See, also, infra, sec. 901 et seq. Pac. 860. 916 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN EIGHTS. 863 if he can do so without trespassing upon the land of another. 22 Where a river suddenly changes its course and abandons its former bed, the respective riparian owners are entitled to the posses- sion and ownership of the soil formerly under its waters, as far as the thread of the stream. 23 If the change is gradual instead of sudden, the right is. not lost, because the accretion belongs to him with his own land and preserves his right of access. The law of accretion is considered in chief below, having been here mentioned only as affecting loss of riparian right to flow and use of the stream. 24 (3d ed.) 863. Adverse Use. Riparian rights 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. 25 The distinction between the upper and lower use must be kept in mind. A lower use, since it in no way interferes with the natural flow above, is no invasion of a right above. No action would lie, N and so no prescriptive right nor estoppel can arise in favor of a nonriparian owner below stream against an upper riparian owner. 1 Likewise, there is no such thing as a prescriptive right of a lower riparian owner to receive water as against upper owners. Receiv- ing the full flow of a stream for over ten years was held 2 not to give a prescriptive right that will prevent reasonable use of its waters by an upper owner, saying: "On the arguments of the case at bar it is suggested that defendant Hall had acquired a pre- 22 Wholey v. Caldwell, 108 Cal. 95, Cave v. Tyler, 133 Cal. 566, 65 Pac. 49 Am. St. Rep. 64, 41 Pac. 31, 30 1089; Davis v. Martin, 157 Cal. 657, L. R. A. 820. 108 Pac. 866; Perry v. Calkins (Cal.), 23 Kinkead v. Turgeon, 74 Neb. 113 Pac. 136; Clark v. Allaman, 71 573, 104 N. W. 1061, 1 L. R. A., N. Kan. 206, 80 Pac. 571, 70 L. R. A. S., 762, 109 N. W. 744, 7 L. R. A., 971; Magistrate v. Elphinstone, 3 N. S., 316, 13 Ann. Gas. 43. Kames Dec. 331; Stockport W, W. 24 Infra, sec. 901 et seq. v. Potter, 3 Hurl. & C. 300. "In 25 Sec. 579 et seq. See Gallagher case the party against whom such v. Montecito etc. Co., 101 Cal. 242, 35 adverse user is asserted is an upper Pac. 770; Bathgate etc. Co. v. Irvine, riparian owner, it is difficult to con- 126 Cal. 135. 77 Am. St. Rep. 158, 58 ceive of a case where the use of the Pac. 442 ; Oregon etc. Co. v. Allen water by a lower diversion can be etc. Co., 41 Or. 209, 91 Am. St. Rep. adverse." Davis v. Chamberlain, 51 701, 69 Pac. 455. Or. 304, 98 Pae. 154. See, also, i Hargrave v. Cook, 108 Cal. 72, Beers v. Sharpe, 44 Or. 386, 75 Pac. 41 Pae. 18, 30 L. R. A. 390; Bath- 717. gate v. Irvine, 126 Cal. 135, 77 Am. 2 Crawford v. Hathaway, 67 Neb. St. Rep. 158, 58 Pac. 442 (even if 325, 108 Am. St. Rep. 647, 93 N. W. a notice of appropriation be posted) ; 781, 60 L. E. A. 889. 863 Ch. 37. LOSS OF EIPAEIAN EIGHT. (3d ed.) 917 scriptive right to the full flow of the stream by ten years' user. There cannot be, in the very nature of things, any such thing as a prescriptive right of a lower riparian owner to receive water of a stream as against upper owners." 3 It has been held that nonriparian use of the surplus above over the possible present or future needs of the riparian proprietor will not be adverse to him, and that appropriation of considerable quan- tities of water in seasons when that may be done without sensible injury to the value of the estates of lower owners does not give a prescriptive right to divert the whole stream in dry seasons. 4 This is the line of minority decisions given in discussing damage ; that is, the decisions holding that in the absence of the possibility of dam- age, present or future to the value or use of the lower riparian land, no wrong is done the lower owner. If no wrong is done, no pre- scription can arise. We refer to that discussion, without repeating it further here. On the other hand, there are strong decisions that even if no possible damage, yet the upper use of the surplus may be an injury and adverse and a prescriptive right may arise. That is, they say, there is an injury because a prescriptive right will arise, and that a prescriptive right arises because there is an injury. The decisions conflict. 5 An upper use which does actual damage to a lower proprietor or impairs the value of his land or his capacity of future use thereon, and which (if the upper user is a riparian proprietor) is also in excess of the reasonable use to which the upper proprietor is entitled, will start the running of a prescription immediately, since it is an immediate wrong. 6 It has been suggested that beneficial use is not necessary to ac- quire a prescriptive right against a riparian owner, but the ques- tion of beneficial use in prescription is probably one of color of title, and hence involved with regard to the one in whose favor prescription is invoked, and not with regard to the party against whom invoked. 7 3 Accord Perry v. Calkins (Cal.) Kan. 206, 80 Pac. 571, 70 L. B. A. 113 Pac. 136: Hudson v. Dailey, 156 971; Fifield v. Spring Valley Water Cal. 617, 105 Pac. 748 (nonuse for Co., 130 Cal. -552, 62 Pac. 1054. thirty years) ; Walker v. Lillingston, 5 Supra, sec. 815 et seq. 137 Cal. 401, 70 Pac. 282; Dunn v. Heilbron v. W. Co., 75 Cal. 117, Thomas. 69 Neb. 683, % N. W. 142; 17 Pac. 65; Alta etc. Co. v. Hancock, Mud Creek etc. Co. v. Vivian, 74 Tex. 85 Cal. 219, 20 Am. St. Eep. 217, 24 170, 11 S. W. 1078. Pac. 645. See supra, sees. 801, 816, 4 Meng v. Coffey, 67 Neb. 500, 108 concerning present damage. Am. St. Eep. 697, 93 N. W. 715, 60 ^ See ante, sec. 586, color of title. L. E. A. 910; Clark v. Allaman, 71 918 (3d ed.) Ft. IV. THE COMMON LAW OF EIPAEIAN EIGHTS. 864 It has been said that the effect of prescription is to act as an extinguishment of the riparian right. 8 A prescriptive right, being once acquired, is not enlarged by sub- sequent enlargement of claim. Such enlargement must be con- sidered independently, upon its own merits. 9 In a suit to restrain the use of water, claims by defendants, as riparian owners, and by adverse user, are not inconsistent. 10 Some cases upholding prescriptive rights against lower riparian owners are given in the note. 11 Where the course of a stream has been artificially changed and, for a time exceeding the prescriptive period, a community of lower owners have adjusted themselves to the new condition upon the basis of riparian rights, their rights will continue to be adjusted upon that basis. 12 Prescription is the primitive basis of water-rights. At one time most of the common law of watercourses was based upon prescrip- tion, 13 and such is to-day the basis of most water-rights in the Hawaiian Islands. 14 B. EMINENT DOMAIN.1S (3d ed.) 864. Riparian Right may be Condemned. The diversion from a riparian proprietor is a taking of his right of flow and use, and cannot be done for private use, and cannot be done even for pub- lic use without eminent domain proceedings. A water company cannot deprive other riparian owners of the water merely because it 8 Alta L. & W. Co. v. Hancock, Porter, 51 Or. 318, 95 Pac. 732, 98 85 Cal. 223, 20 Am. St. Eep. 217, Pac. 1083, at 1101, 102 Pae. 728; 24 Pac. 645. Harrington v. Demaris, 46 Or. Ill, 9 Miller v. Madera etc. Co. (1909), 77 Pac - 603 > 82 Pac - 14 > 1 L - R - A -> 155 Cal. 59, 99 Pac. 502. 22 L. E. A., N - S v 756; Cottel v. Berry, 42 Or. N g 391 ' 59-3, 72 Pac. 584. But see Mason v. .. '' . ' . , v c , on , Shrewsbury (1871). L. E. 6 Q. B. o p Da T,7' Chamberlm ' 51 r * 3 4 ' 578, holding that where one had for forty years diverted a whole stream, 11 Heilbron v. W. Co., 75 Cal. 117, a i ower riparian owner acquired no 17 Pac. 65; Hough v. Porter, 51 Or. prescriptive right to have the diver- 318, 95 Pac. 732, 98 Pac. 1083, at gion continued. When, consequently, 1101, 102 Pac. 728; Arroyo D. Co. the upper claimant ceased the diver- v. Baldwin (1909), 155 Cal. 280, 100 s i on an( j t h e wa t er now coming down Pac. 874; Strong v. Baldwin (1908), resulted, because of changes in the 154 Cal. 150, 129 Am. St. Eep. 149, hitherto dry bed, in flooding plain- 97 Pac. 178; Montecito W. Co. v. tiff's land, plaintiff was not entitled Santa Barbara, 144 Cal. 578, 77 Pac. to damages. H12. 13 Supra, sec. 667. 12 This matter is fully discussed, 14 Infra, sec. 1434. supra, sec. 60. See, also, Hough v. is See, also, supra, sec. 604 et seq. 864 Ch. 37. LOSS OF EIPAEIAN RIGHT. (3d ed.) 919 is also a riparian owner. 16 Nor can a city take the water for a water supply without condemnation. 17 It is a taking of property, and condemnation proceedings are necessary, as in regard to other prop- erty even on navigable streams, and even where the taking is for improvement of navigation. 18 What is a public use has already been considered. 19 The -riparian right may be condemned. In Lux v. Haggin it is said: "This court has held that the property of a riparian owner in the waters flowing through his land may, upon due compensation to him, be condemned to the public use by proceedings initiated by a corporation organized to supply a town with water. 20 In the learned opinions of Justices Ross and Myrick in that case the right of the riparian proprietor to the use of the water is designated 'property'; an 'incident of property in the land, inseparably an- nexed to the soil,' as part and parcel of it; 'an incorporeal 21 here- ditament appertaining to the land. ' The main question in the case was whether the code provided for a condemnation of that species of property to public uses. The question was. answered in the affirmative. " This condemnation does not require the condemna- tion of any land ; the incorporeal right itself may be condemned as an individual thing without, as is sometimes done, condemning a riparian strip of land. 22 In St. Helena Co. v. Forbes, supra, it was said (italics ours) : "A right thus to interfere with the natural right to make use of water belonging to another where it is connected with the occupa- tion of land, would constitute an easement in favor of the latter, as the dominant estate. Such an easement may be acquired like other easements, by grant, or by an adverse enjoyment so long con- tinued as to raise a legal presumption of a grant. If there is any difference in the nature of the same right when acquired by con- 16 Rigney v. Tacoma etc. Co., 9 21 Note the use of the word "in- Wash. 576, 38 Pac. 147, 26 L. R. A. corporeal." 425; Duckworth v. Watsonville etc. 22 Bigelow v. Draper, 6 N. D. 152, Co., 150 Cal. 520, 89 Pac. 338. 69 N. W. 570; St. Helena Water Co. 17 City of New Whatcom v. Fair- v. Forbes, supra, 62 Cal. 182, 45 Am. haven etc. Co., 24 Wash. 493, 64 Pac. Rep. 659; Northern etc. Co. v. Stacher 735, 54 L. R. A, 190; Emporia v. " (1909), 13 Cal. App. 404, 109 Pac. Soden, 25 Kan. 588, 37 Am. Rep. 896; State ex rel. Burrows v. Su- 265. perior Court, 48 Wash. 277, 93 Pac. is Bingham v. Port Arthur etc. Co., 426. Cft Duckworth v. Watsonville 100 Tex. 192, 97 S. W. 686, 13 L. R. Co., 150 Cal. 520, 89 Pac. 338; Duck- A., N. S.. 656. worth v. Watsonville Co., 158 Cal. i Supra, sec. 606 et seq. 206, 110 Pac. 927. See, also, 17 L. 20 Citing St. Helena W. Co. v. R. A., N. S., 1005, note. Forbes, 62. Cal. 182, 45 Am. Rep. 659. 920 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 864 demnation proceedings, we are unable to perceive it." And conse- quently it seems clear that condemnation can affect only the defendants to the suit, and cannot affect other riparian owners, just as a grant by one riparian owner is of no validity against noncon- tracting riparian owners. 23 In Washington, 24 the riparian owner must submit to the con- demnation of the riparian right to the natural flow of the water, with the limitation, however, that water that is used by said per- son himself for irrigation, or that is needed for that purpose by any such person, may not be condemned. This reservation from condemnation of use for irrigation was held K to cover only present use, and only such future use as is in present contemplation and is actually accomplished with reasonable diligence within reasonable time about two or three years, the court said. 1 The decision, how- ever, is limited strictly to a construction of the statute, and is to the effect that the exemption from condemnation does not extend to the full common-law right to irrigate. That right is independent of present use, or of diligence, or of intent to make future use ; all possible future use, intended or not, however long in accomplish- ment, is preserved by the common law. In denying this full ex- tent to the exemption, the Washington court in effect construes the statute not to exempt the full riparian right to irrigate, but only a restricted right is exempted, analogous rather to the law of "future needs" in appropriation. 2 In a later case under the same statute it 23 Supra, see. 847, grant; and sec. 625 et seq., unrepresented interests. 24 Under sec. 4156, Ballinger's Ann. Codes and Stats. Pierce's Code, sees. 5869, 5871. 25 State ex rel. Liberty Lake etc. Co. v. Superior Court, 47 Wash. 310, 91 Pac. 968. See, also, State ex rel. Kettle Falls etc. Co. v. Superior Court, 46 Wash. 500, 90 Pac. 650; Nesalhous v. Walker, 45 Wash. 621, 88 Pac. 1032. i In the opinion it is said: "The question, then, turns upon the mean- ing and intention of the legislature by the expression 'needed,' as em- ployed in section 4156, Ballinger's Annotated Codes and Statutes. We think it means the water necessary to irrigate the land of the littoral or riparian owner which he now has under irrigation, and also that which he intends to, and will, place under irrigation within a reasonable time. It cannot be supposed that the legisla- ture intended that a riparian owner could prevent an irigating company from appropriating water not then in use, but which the riparian owner might need and use upon his land at some distant, indefinite time in the future. Such a construction would be in the interest of the speculator, rather than for the encouragement of the land improver and home builder. The statute gives the riparian owner a preference right, upon the theory that he needs and will avail himself of the privilege thus given him. If he is not using the water, and does not purpose to use it as soon as practicable in the ordinary and rea- sonable development or cultivation of his lands, then there is no reason why the water should be withheld from others who need and will promptly use it if permitted." 2 Supra, sec. 483 et seq. 865, 866 Ch. 37. LOSS OF K1PARIAN EIGHT. (3d ed.) 921 was held that the condemnor water company may prove the number of irrigable acres of the riparian proprietor on a lake, and the quan- tity sufficient per acre, and it is then no objection to the condemna- tion that it will result in a joint user of the water of the lake between the riparian proprietor and the condemnor. 3 (3d ed.) 865. Clark v. Nash. Under the decision in Clark v. Nash, 4 States, under certain conditions, may pass statutes giving a non- riparian owner the right to condemn rights of way for ditches over riparian lands for his private nonriparian irrigation, where certain peculiar conditions make this inferentially a public use. 5 In the French law, based fundamentally upon the law of riparian rights, an extensive use of this principle is made to establish a system for acquiring nonriparian uses by condemnation. 6 Upon the same lines, the States following the Colorado doctrine, recognizing no right in the riparian owner as to the water, recognize his right to the exclu- sive possession of his land, and provide a system for acquiring rights of way for ditches for nonriparian owners over the riparian land. by condemnation. 7 When the riparian lands are all settled upon, condemnation will, as a rule, have to be resorted to by nonriparian appropriators even in Colorado, the only difference between Colorado and California after full settlement being that the nonriparian appropriator must pay for the water as well as the right of way in California, while in Colorado, only for the right of way. Reference is made to a preceding chapter. 7 * (3d ed.) 866. Procedure on Eminent Domain. In Nebraska the law 8 authorizes the condemnation of the right of a private riparian pro- prietor to' the use and enjoyment of a natural stream flowing past his land, or its impairment by an appropriation of such water for irrigation purposes ; and such riparian proprietor may recover dam- ages in the same way and subject to the same rules as a person 3 Spokane Co. v. Arthur Jones Co., Supra, sec. 614 et seq. 53 Wash. 37, 101 Pac. 515. 7 Supra, sees. 225, 232. 4 198 U. S. 361, 25 Sup. Ct. Rep. fa Supra, sec. 607 et seq. 676, 49 L. Eel. 1085, 4 Ann. Cas. 1171 8 Comp. Stats. 1901, sec. 41, art. (already considered). 2, c. 93a, and of section 21, article 1, s Supra, sec. 608. See, for ex- of the Constitution, ample, Pierce's Washington Code, sec. 5127, sec. 5848. 922 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 866 whose property is affected injuriously by the construction and oper- ation of a railroad. 9 In Texas 10 it is held that while, in that State, the irrigation act provides for the condemnation of a right of way only for an irrigation canal, still, under Sayles' Civil Statutes, 11 authorizing canal companies to condemn any land necessary for their use, an irrigation company 12 may divert water which a ripa- rian proprietor had the right to have flow in a certain channel, and to the use thereof as such owner. The damages on eminent domain are usually held to be the loss in value of the riparian land consequent upon loss of the use of the water, future possible use being of equal importance with use actually being made (or if no use is being made at all) , 13 The dam- ages are measured by depreciation in value of the land, and cannot be figured at so much a front foot on the stream. 14 The Nebraska rule is to figure damage on the analogy to one whose property value is decreased by smoke from a railway, saying: "The right of the property owner to the benefit and advantage of a street and high- way adjacent to his land and the right of the riparian owner to the reasonable use and enjoyment of the water in a flowing stream over or adjoining his land are not without features rendering them in a measure analogous. ' ' 15 And gives loss of future use little weight where no present use, contrary to a cardinal principle of the common law. 16 In Nebraska it has been held: "In consequence, if a reasonable use of the water consistent with a like use by other riparian owners cannot be made in a particular case, the injury of the riparian owner by reason of appropriation [and condemnation] of the water by an irrigation enterprise is nominal only." 17 This violates the rule that the rights of strangers to a suit cannot be considered. At common law only riparian proprietors can take water, and one not such cannot defend his trespass by saying that 9 Crawford v. Hathaway, 67 Neb. 15 Crawford v. Hathaway, 67 Neb. 325, 108 Am. St. Rep. 647, '93 N. W. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889; MeCook Irr. Co. 781, 60 L. R. A. 889. Cf. Olympia v. Crews, 70 Neb. 115, 102 N. W. 249. L. & P. Co. v. Harris (Wash.), 108 10 McGee Irr. Co. v. Hudson (Tex. Pac. 940. Sup.), 22 S. W. 967. !6 MeCook v. Crews, 70 Neb. 109, 11 Art. 628, sec. 6. 996. See supra, sees. 616, 651 et 12 Formed under the. act of 1889 of seq. the laws of Texas. 17 MeCook etc. Co. v. Crews, 70 13 Lux v. Haggin, 69 Cal. 255, 10 Neb. 109, 96 N. W. 996. Cf. Tacoma Pac. 674. See Cal. Code Civ. Proc., etc. Co. v. Smithgall (Wash.), 108 sec. 1248. Pac. 1091, also improperly admitting 14 Hercules W. Co. v. Fernandas, 5 consideration of the outstanding ri- Cal. App. 726, 91 Pac. 401. parian owners. 867-870 Ch.37. LOSS OF RIPARIAN EIGHT. (3ded.)923 there are other riparian proprietors having as good (or better) right to the water as plaintiff. The same principle should apply to damages on eminent domain. The other proprietors may never seek to use the water, in which case the one who does can take, against a wrongdoer, all he could ever possibly put to use, though it might be the whole stream, unlimited by the like use of others who do not insist on their rights. The condemnor should not be allowed to set up their rights for them (unless he joins all as de- fendants) , 18 Reference is also made to the general chapters upon procedure and upon eminent domain. 19 (3d ed.) 867-870. Some footnote cross-references have been made to these numbers. The matter referred to will be found in other sec- tions. 20 18 Supra, sees.' 616, 626 et seq., Wash. 323, 105 Pac. 636; State ex 651 et seq., 753. rel. Mclntosh v. Superior Co. (1909), Condemnation of riparian right of 56 Wash. 214, 105 Pac. 637. wharfage and access. See Columbia i Supra, cc. 26, 27. etc. Co. v. Hutchinson (1909), 56 20 See supra, sees. 616, 651, et seq. 871-879. (Blank numbers.), 924 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 880 CHAPTER 38. PROCEDURE. 1 880. General. 881. Parties. 882. Equitable remedies. 883. Pleading and proof Between riparian owners themselves. 884. Same Between a riparian and a nonriparian owner. 885. Pleading (continued). 886. Actions at law. 887. Judgment or decree. 888-896. (Blank numbers.) (3d ed.) 880. General. "We have elsewhere considered the criterion of wrongfulness or legal injury to the complaining proprietor, which criterion is the same whatever form the injury may take. It may be by diminution or diversion, by retardation or acceleration, by backing the water and flooding the upper proprietor, or by polluting the water and deteriorating its quality. In all, the test between riparian proprietors is whether the act done by the pro- prietor complained of does unreasonable present damage, or, in the absence of present damage, unreasonably impairs the future capac- ity of the complaining proprietor to make an equally beneficial use of his land; between a riparian and a nonriparian owner, whether the act has or may in the future have any impairing effect at all upon the use or value of the riparian land, irrespective of any ques- tion of "reasonableness." Concerning diminution or diversion, that is so closely connected with the previous discussion that further consideration here would be repetition. Concerning retardation or acceleration, much will be found in the Eastern decisions where steadiness of flow for mill power is the chief use of water instead of irrigation as in the West ; but the writer's notes contained no Western decisions worth noting where an injurious retardation or acceleration aside from a diver- sion was involved. Concerning backing the water upon an upper proprietor, the writer has considered a discussion of the law of flood- ing or its converse, drainage, foreign to the field of this book. 2 1 See also, supra, c. 27. from floods) ; infra, sec. 1140 (drain- 2 A few sections dealing therewith age of ground water). are supra, sees. 347, 348 (surface As an example, however, of back- water); sec. 461 et seq. (damage ing: If a railroad company, in build- 881 Ch. 38. PROCEDURE UNDER RIPARIAN SYSTEM. (3d ed.) 925 Questions of pollution are considered in a previous chapter. 3 (3d ed.) 881. Parties. Throughout this "book we have shown the fundamental rule that a case must be decided upon the relative rights of the parties before the court, without regard to the rights of strangers to the suit. 4 The rule of procedure set forth under the law of appropriation, that the rights of strangers to a suit can- not be considered, applies with equal force here. In a suit between a riparian owner and a wrongdoer, the rights of other riparian owners cannot be set up. Consideration for other riparian owners may limit the use of one of them at their complaint, but a. wrong- doer is not entitled to be substituted to such consideration, nor to get the benefit of it, nor use the rights of other riparian owners, strangers to the suit, in his own defense. A defendant may be a wrongdoer to plaintiff though plaintiff be himself a wrongdoer as to other persons who are not parties to the action. Nor can a ripa- rian owner contest an appropriation upon the basis of the rights of the other riparian owners when they are not parties to the suit. A repetition of the authorities need not be made here. A reversioner may sue. 5 A lessee of riparian proprietor may maintain injunction suit against a wrongdoer. 6 Other questions will be found considered in the general chapter upon procedure. 7 (3d ed.) 882. Equitable Remedies. The right to an injunction has been sufficiently covered by the discussion of injunction under the law of appropriation. 8 The formal requisites are the same, though the application of them to the rights of a riparian proprietor in- ing a bridge across a stream, fails to of such reasonable use is prevented, leave ample passageway for so much Bauers v. Bull, 46 Or. 60, 78 Pac. water as might reasonably have been 757. anticipated would flow in the stream, a Supra, sec. 523. and the bridge dams the water back 4 g gecg g, 246 an(J fi .. on the riparian owner to his injury, , 69 | ^ the railroad company will be liable for the resulting loss. Atchison etc. 5 Gould v. Stafford, 91 Cal. 146, Co. v. Herman, 74 Kan. 77, 85 Pac. 2 " Pac. 543. 817. As an example of drainage: 6 Crook v. Hewitt, 4 Wash. 749, 31 One proprietor cannot build a ditch Pac. 28, California etc. Co. v. Enter- to drain his land if thereby he diverts prise etc. Co., 127 Fed. 741, quoted from a stream water in which an- supra, sec. 819, note 10. other proprietor is entitled to a -rea- 7 Supra, sec. 624 et seq. sonable use, if thereby the possibility 8 Supra, sec. 641 et seq. 926 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 883 volve other considerations, sufficiently set forth in a preceding chapter. 9 The right of a riparian proprietor to the flow of water through his land is inseparably annexed to the soil, not as an easement, or appurtenance thereto, but as a part or parcel of the land, 10 and an action to quiet his title to such water must, under the California constitution, be commenced in the county where the land or some part of it is situated. 11 Other questions will be found considered in the general chapter upon procedure. 12 (3d ed.) 883. Pleading and Proof Between Riparian Owners Them- selves. In a suit in equity for apportionment of water between riparian owners the plaintiff must plead the amount of his irrigable riparian lands (if claiming for irrigation) and the amount of water reasonably necessary for his use upon such lands. 13 He must also, on the trial, furnish evidence upon the volume of the stream, the character of the soil, the number of proprietors, and the various surrounding circumstances from which the question of reasonable- ness is to be determined in each case. 14 This should not necessarily apply to injunction between riparian owners, since plaintiff is entitled to be protected against excessive 9 Supra, sees. 795, 814 et seq. A (1908), 154 Cal. 150, 129 Am. St. recent Texas ruling is that, unless us- Rep. 149, 97 Pac. 178; Hudson v. ing water, a riparian owner is not Dailey, 156 Cal. 617, 105 Pac. 748; entitled to a preliminary injunction. Perry v. Calkins (Cal.), 113 Pae. 136. Biggs v. Leffingwell (Tex. Civ. App.), 14 Ibid., and Coleman v. La Franc, 132 S. W. 902. But in California that 137 Cal. 214, 69 Pac. 1011; Jones v. rests in the discretion of the trial Conn, 39 Or. 30, 87 Am. St. Rep. 634, court. Miller v. Madera etc. Co., 155 64 Pac. 855, 65 Pac. 1068, 54 L. R. A. Cal. 59, 99 Pac. 502, 22 L. R. A., N. 630; Riverside etc. Co. v. Gage, 89 Cal. S., 391. 410, 26 Pac. 889 ; Hough v. Porter, 51 10 Lux v. Haggin, 69 Cal. 255, 391, Or. 318, 95 Pac. 732, 98 Pac. 1083, 10 Pac. 674. 102 Pac. 728. In Hough v. Porter, 51 11 Miller & Lux v. Madera etc. Co., Or. 318, 95 Pac. 732, 98 Pac. 1083, 155 Cal. 59, 99 Pac. 502, 22 L. R. 102 Pac. 728, it is held that where the A., N. S., 391. testimony before the appellate court 12 Supra, c. 27. is not ample for a determination of 13 Wutchumna Water Co. v. Pogue, the quantity to be left in the stream 151 Cal. 105, 90 Pac. 362; citing properly to supply the domestic and Riverside Water Co. v. Gage, 89 Cal. other natural wants and necessary 420, 26 Pac. 889; Wiggins v. Mus- requirements of the riparian owners cupiabe L. & W. Co., 113 Cal. 194, along the controverted stream, the 54 Am. St. Rep. 337, 45 Pac. 160, appellate court may determine other 32 L. R. A. 667; San Luis Water Co. points upon which the testimony is v. Estrada, 117 Cal. 182, 48 Pac. adequate for the purpose, and remand 1075; Strong v. Baldwin, 137 Cal. the cause to the court below with 432, 70 Pac. 288; Strong v. Baldwin permission to take further evidence. 883 Ch. 38. PROCEDURE UNDER RIPARIAN SYSTEM. (3d ed.) 927 injury to his rightful use now or hereafter, whatever the extent of that use may be. For an injunction plaintiff must plead that de- fendant's taking is excessive. 15 But that should seem to be enough whore no apportionment is asked. The bill for an apportionment is distinct from one for an injunction. "It is suggested that the court ought to ascertain and determine the rights of the respective parties, and fix them in the decree, so that hereafter there may be no controversy concerning the matter. In the very nature of things, however, it is impossible in a case of this character to make such a decree. The rights of the several riparian proprietors are equal, each being entitled to but a reasonable use of the water for irrigating purposes, and what constitutes such use must necessarily depend upon the season, the volume of water in the stream, the area and character of the land which each riparian proprietor proposes to irrigate, and many other circumstances ; so that it seems to us there is no basis upon which the court could frame any other decree than one enjoining and restraining the defendant from diverting the water from the stream to the substantial injury of the present or future rights of the plaintiffs, and, as the decree of the court below is to that effect, it will be affirmed. ' ' 16 The rule that the riparian right, as between riparian owners, is one to be protected against unreasonable interference, leaves it an ultimate question of fact in each case what that may be, so that the allegation and proof of unreasonableness of defendant would appear to be suffi- cient where no apportionment is asked. 17 If more pleading and 15 Perry v. Calkins (Cal.), 113 Pac. object was to obtain a decree de- 186. claring the other parties to be with- 16 Jones v. Conn, 39 Or. 30, 87 out any right whatever in such waters. Am. St. Rep. 634, 64 Pac. 855, 65 It may be conceded that the allega- Pac. 1068, 54 L. R. A. 630. tions of the pleadings were broad 17 A recent California case is to enough to have permitted the deter the same effect. Mr. Justice An- ruination of this matter if sufficient gellotti said (Strong v. Baldwin, 154 evidence had been presented thereon. Cal. 150, 129 Am. St. Rep. 149, 97 The court was not compelled, how- Pac. 178) : "Complaint is made of the ever, to determine this question in the failure of the court to find and decree absence of evidence sufficient to en- the quantity of water the respective able it to do so The extent parties were entitled to use as ripa- of the riparian rights of the parties rian owners The case is mani- to this action could not be determined festly one where the pleading of the without taking into consideration the party complaining was not presented rights of these other riparian pro- for the purpose of obtaining an ap- prietors, as to which there was no portionment of certain waters among evidence whatever, and concerning the riparian owners. It was not which there could, of course, be no drawn on any such theory, and does binding determination in the absence not recognize the cross-defendants as of such owners. But even if there riparian owners at all. The real were no such other ov.-ners, our ex- 928 (3d ed.) Pt. IV. THE COMMON LAW OF BIPAEIAN EIGHTS. 884 proof are required, it would mean that the court refuses injunctions between riparian owners in all cases except where apportionment is asked; which is obviously a position no court has intended to take. The burden of proving that a use by one riparian owner is un- reasonable to another riparian owner rests upon the complaining riparian owner. 18 (3d ed.) 884. Same Between a Riparian and a Nonriparian Owner. Where a nonriparian owner diverts water flowing by or over private riparian land, the right of a riparian owner against him has been discussed in another chapter. 19 As there is no question of "rea- sonableness" (in its correlative sense denoting sharing) . involved, there can be no apportionment in the nonriparian owner's favor, and hence an injunction may be granted without evidence or plead- ing of what would be a "reasonable use" by the riparian owner had he been contesting with another riparian owner. 20 ' ' In Brown v. Best, 20 * Lord Chief Justice Lee is reported to have said that a watercourse is jure naturae, and therefore a declaration stating merely the possession of the place through which the water used to run is good. And Denison, Justice, said that in natural watercourses that was the most proper mode of declaring"; 21 and such is the generally established rule of pleading. An allegation * ' that defendant is the owner of lot 25, through which the creek runs, and of all dams, ditches and water-rights thereon," is enough to raise an issue as to his riparian rights. 22 Ownership of land animation of the record has satisfied 18 Miner v. Gilmour, 12 Moore P. C. us that the. evidence introduced was 155, 14 Eng. Eeprint, 861, a leading not sufficient to enable the court to case. But see contra, Bed River Co. intelligently determine the relative v. Wright, 30 Minn. 249, 44 Am. Eep. rights of Baldwin on the one hand, 194 15 N. W. 167, holding the upper and those of the remaining parties on owner * have Burden of proving his the other, in the waters of this "se to be reasonable, river. Under such circumstances, the " gg* sec - 8 } 4 et Se 1- trial ronrt did all that it Drooerlv Miller v. Madera etc. Co., 155 criai court aid an mat IT, properiy ~ , Q QQ _ ' could do, by determining that the J* 1 ^ 5y 3 ' gi " ^ ac ' 502 ' 2 < L - R - A., various parties were riparian owners ^ wng 95 . and leaving the question or. the pro- Q^J portions of the water to which each 2 i Chasemore v. Eichards, 7 H. L. is entitled to be determined m the Cas 349j n Eng Reprint. 140, Lord future." See, contra, Eogers v. Over- Wensleydale. See, also, Richards v. acker, 4 Cal. App. 333, 87 Pac. 1107, Hill, 5 Mod. 206, 87 Eng. Eeprint, overlooking the distinction between 611. apportionment and other relief for a 22 Smith v. Hawkins, 127 Cal. 119, riparian owner. 59 Pac. 295. 884 Ch. 38. PROCEDURE UNDER RIPARIAN SYSTEM. (3d ed.) 929 through which a stream flows sufficiently alleges riparian rights. 23 The complaint or declaration must allege that lands are riparian or that a stream passes by or through them. 24 Averments of owner- ship and possession of riparian land or of land by or through which the stream flows, sufficiently allege the riparian right. 25 The riparian owner need not allege that he is using the water, 1 nor that the nonriparian use is unreasonable. 2 There are decisions to the contrary. The chief of these is River- side W. Co. v. Gage, 3 quoted elsewhere. 4 So far as such decisions hold that a riparian owner must plead and prove against a non- riparian owner the same things as in a suit for apportionment with another riparian owner, they are superseded by the decision in Miller v. Madera Co. on rehearing. 5 So far, however, as they re- quire the riparian owner only to allege and prove what quantity of water "is or may be beneficial to his land," it may be that they do not necessarily, as already discussed, conflict with that case. 6 There is, then, this same conflict in procedure which we set forth above as to substantive law. If the qualification that the riparian owner can have an action only for water "which is or may be bene- ficial to his land," is correct, then Riverside W. Co. v. Gage is not necessarily incorrect, though it would seem that the burden of alleg- ing and proving such qualification would be properly upon the non- riparian owner, 7 and therefore matter for answer and proof by defendant, not the plaintiff, 23 Leigh v. D. Co., 8 Cal. 323, 12 Morr. Min. Rep. 97. 24 Silver Creek etc. Co. v. Hayes, 113 Cal. 142, 45 Pac. 191. 25 Shotwell v. Dodge, 8 Wash. 337, 36 Pac. 254; Rincon etc. Co. v. Ana- heim etc. Co., 115 Fed. 543. Contra, Lobdell v. Simpson, 2 Nev. 274, 90 Am. Dec. 537. 1 Supra, sec. 816. 2 Supra, sec. 817. 3 89 Cal. 410, 26 Pac. 889. 4 Supra, sec. 822. For example, where a riparian owner was contesting with a nonriparian owner, it has been held: "Appellant's claim to the waters as a riparian owner is not pressed with much seriousness, and this is natural, considering that there is no pleading as to his riparian need for use of these waters, either as to quan- Water Rights 59 tity or amount of land upon -which they are to be employed." Montecito etc. Co. v. Santa Barbara (1907), 151 Cal. 377, 90 Pac. 935, citing Riverside Water Co. v. Gage, 89 Cal. 410, 26 Pac. 889. See likewise Wutchumna W. Co. v. Pogue, 151 Cal. 105, 90 Pac. 362; San Luis W. Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075. For other cases seeming to apply this rule be- tween a riparian and a nonriparian owner as well as between riparian owners, see Morris v. Bean (Mont.), 146 Fed. 431; McCook Irr. Co. v. Crews, 70 Neb. 115, 102 N. W. 249. 5 155 Cal. 59, 99 Pac. 502. 6 Supra, sec. 827 et seq. 7 Miller v. Bay Cities Co., 157 Cal. 256, 107 Pac. 115; Huffner v. Sawday, 153 Cal. 86, 94 Pac. 424. See supra, see. 832. 930 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 885 Our conclusion is that allegation and proof that a stream runs by plaintiff's land is sufficient against a nonriparian owner, but that the nonriparian owner may set up in his answer as an affirmative defense (of which the burden of proof is emphatically upon him) 1 that the water diverted is not, and cannot be in the future, beneficial to the riparian land, in the extreme case upon large streams where the facts may support such claim. (3d ed.) 885. Pleading (Continued). One's right as riparian pro- prietor cannot be considered when not alleged in the pleadings. 8 But it is sufficient to allege the facts showing that one is a riparian owner, from which the claim as riparian owner may be inferred, without using that specific term. 9 The acts of a defendant riparian proprietor must be alleged to be unreasonable. 10 How far the above is insufficient in bills in equity for apportionment, see preceding sections; likewise as to how far it applies at all to nonriparian owners. Whatever may be the rule as to alleging possibility or capacity for future use, it is well settled that averments of actual present use are surplusage both in suits between riparian owners and in suits against a nonriparian owner. As against a nonriparian owner, the plaintiff riparian owner is entitled to the whole flow which is or may be beneficial to his land ; as against another riparian owner, to a reasonable proportion thereof; in both cases, whether actually using the water or not. 11 (3d ed.) 886. Actions at Law. As damages at law are compensatory only, where the water is not used by the complaining riparian owner, his damages from an excessive use of another riparian owner (or for use by a nonriparian owner) will be nominal only, 12 for he. suffers no actual damage and the action stops the running of any 8 Smith v. Hawkins, 127 Cal. 119, Strong v. Baldwin (1908), 154 59 Pac. 295; Riverside W. Co. v. gal. 150 > 129 Am - St - ^P- 14 ^ 97 Gage, 89 Cal. 410, 26 Pac. 889; ac< 178> Wutchumna W. Co. v. Pogue, 151 Cal. ^'p^V G drieh ' 7 CaL 103 > 105, 90 Pac. 362; Montecito Co. v. Su ' se ^ 801 et 816 et Santa Barbara, 151 Cal. 377, 90 Pac. S eq., 861. 935; San Luis Co. v. Estrada, 117 12 Creighton v. Evans, 53 Cal. 55, a. Cal. 168, 48 Pac. 1075. Morr. Min. Rep. 123. 887 Ch. 38. PROCEDUBE UNDER RIPARIAN SYSTEM. (3d ed.) 931 prescription and prevents the wrong from ripening into a right. This is a principle well recognized. The riparian proprietor cannot recover damages for injury the diversion does to his nonriparian land. 13 Nor can a nonriparian proprietor recover for injury done to his use by riparian use of a riparian owner. 14 To the fuller presentation of the matter of damages given in a preceding chapter, 15 we add that while a riparian owner is entitled to an injunction or nominal damages, in certain cases elsewhere set forth, though he is not using the water, 16 yet he can recover no special damage when not using the water, 17 nor can he sue for the value of the water at so much per inch or gallon. 18 (3d ed.) 887. Judgment or Decree. A count alleging a right as ap- propriator will not support a judgment as riparian owner. 19 If a decree assigns use on nonriparian lands, it shows that the court was dealing with rights of appropriation and not riparian rights. 20 The decree may enforce the distinction between natural and artificial uses, and be drawn accordingly. 21 "It must be remembered that no injunction can be awarded which can deprive the defendant of the reasonable use of the water for domestic purposes and for the support of life." w A decision under the law of appropriation does not necessarily have any bearing under the law of riparian rights. 23 Where a decree restraining defendant 's predecessor in interest from diverting water from a creek above plaintiff's land was based on the latter 's riparian rights, it would not protect any rights based on prior appropriation now claimed by him against defendant. 24 Where it did not appear that the defendant therein owned any land, or as to what land he was restrained from diverting is Heinlein v. Fresno etc. Co., 68 20 Wutchumna Water Co. v. Pogue, Cal 35, 8 Pac. 513. 151 Cal. 105, 90 Pac. 362. H Supra, sees. 847. 861. _ 21 F r such a decree see Union etc. _ _, a Co. v. Dangberg, 81 Fed. 73. IB Supra, sees. 637, 638. 22 Stanford v. Felt, 71 Cal. 249, 16 16 Supra, sees. 801, 816. p a c. 900. See, also, Hough v. Porter, " Clark v. Pennsylvania Ry. Co., 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 145 Pa. 438, 27 Am. St. Rep. 710, 22 102 Pac. 728. \tl 990 23 Turner v. James Canal Co. . . (1909), 155 Cal. 82, 132 Am. St. is Ibid., and Stock v. City of Hills- A QQ p ae KOQ 99 T, R A dale (1909), 155 Mich. 375, 119 N. W. S P S . 40i; 17 Ann. Cas. 82^ ' 435. at 438, 439. 24 Davig v chamberlain (1909), 51 19 Supra, sec. 634. Or. 304, 98 Pac. 154. 932 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN EIGHTS. 887 the water, the decree was personal, and there could be no successor in interest of the defendant therein whom it could affect. 25 Other matters will be found in the general chapter upon pro- cedure. 1 25 Ibid. 1 Supra, see. 639 et seq. 888-896. (Blank numbers.) 897, 898 Ch. 39. MISCELLANEOUS RIPARIAif RIGHTS. (3d ed.) 933 CHAPTER 39. MISCELLANEOUS RIPARIAN RIGHTS. 5 897. Introductory. A. NAVIGABLE WATERS. 898. Shores and bed of navigable waters. 899. Public rights in navigable streams. 900. Public authority over navigation. B. ACCRETION AND BOUNDARIES. 901. Accretion.' 902. Islands. 903. Boundaries. C. WHARFAGE AND OTHER RIPARIAN OR LITTORAL RIGHTS. 904. Access. 905. Wharfage, etc. 906. Other riparian rights in navigable waters. 9t)7. Fishing. 908-1006. (Blank numbers.) (3d ed.) 897. In the following chapter such matters and authori- ties are presented as were collected in preparing the other parts of the book. A. NAVIGABLE WATERS. (3d ed.) 898. Shores and Beds of Navigable Waters. In the civil law, the shores of the sea and the beds of navigable streams were "common" and ports (or navigation) were "public." 1 In Eng- land, though Lord Hale observed that in exceptional cases the beds of navigable streams may be private, 2 yet it is the rule that they belong prima facie to the crown. 3 l Authorities quoted supra, sec. 2 2 Lord Cairns in Lyon v. Fish- et seq. ; infra, sec. 1025. "Et quiclem mongers' Co., supra, sec. 698. natural! jure, communia sunt omnium 3 Hale's De Jure Maris, cap. in, a haec ; aer et aqua profluens, et mare, work which has been said "to have ex- et per hoc, littora maris." Institutes hausted the learning on the subject" of Justinian, lib. 2, tit. 1, sec. 1. of which it treats. Wholey v. Cald- Another passage in the Institutes well, 108 Cal. 95, at 100, 49 Am. St. gays, "Flumina autem omnia et por- Rep. 64, 41 Pac. 31, 30 L. R. A. 820. tus publica sunt." The work is reprinted in 16 Am. Rep. 934 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. In this country the English rule usually prevails; the title to the bed of navigable streams being prima facie in the State in trust for the public in navigation and other uses, as public highways. 4 And also as to tide waters. 5 However, in some States the riparian owners are held to own ad medium filum even on navigable streams, subject to the public right of navigation. 6 Which rule prevails in any given jurisdiction is a matter of local law. In a case of wharfing out, the United States supreme court said: "The rights of a riparian owner upon a navigable stream in this country are governed by the law of the State in which the stream is situated. These- rights are subject to the paramount pub- lic right of navigation. ' ' 7 This was established in Pollard v. 54. In another work Lord Hale says: "Those things that are juris publiti are such as, at least in their own use, are common to all the King's subjects; and are of these kinds, viz., common highway, common bridges, common rivers, common ports, or places for arrival of ships. And this lets in the various learning touching those things." Analysis of the Civil Part of the Law, by Sir Matthew Hale. 4 Cal. Pol. Code, sees. 2349, 2875, 3479; Cal. Civ. Code, see. 670; Green T. Swift, 47 Cal. 536; Wright v. Sey- mour, 69 Cal. 122, 10 Pac. 323; Packer v. Bird, 71 Cal. 134, 11 Pac. 87?; Cardwell v. Sacramento, 79 Cal. 347, 21 Pac. 763; Foss v. Johnstone, 15* Cal. 119, 110 Pac. 294; Messenger v. Kingsbury (Cal. 1910), 112 Pac. 6?;'Kregar v. Fogarty, 78 Kan. 541, % Pac. 847; Mont. Rev. Stats. 1907, sec. 4840; State v. Portland etc. Co., 52 Or. 502, 95 Pac. 722, 98 Pac. 160; Johnson v. Knott, 13 Or. 308, 10 Pac. 418; Coquille Co. v. Johnson, 52 Or. 547, 132 Am. St. Rep. 716, 98 Pac. 132; Palmer v. Peterson (1909), 56 Wash. 74, 105 Pac. 179. "The doc- trine is founded upon the necessity of preserving to the public the use of navigable waters from private inter- ruption and encroachment," says Mr. Justice Field in Illinois C. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. Rep. 110, 36 L. ed. 1018. The title is not in the United States. United States v. Bevan, 3 Wheat. 391, 4 L. Ed. 417. 5 The State of California has absolute property in the soil under tide water within her limits. United States v. Mission Rock Co., 189 U. S. > 391, 23 Sup. Ct. Rep. 606, 47 L. Ed. 865. And likewise as to the soil un- der navigable rivers such as the Sacra- I mento. Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. Rep. 210, 34 L. Ed. 819. By an exception in Massachusetts, by the old colonial ordinance of 1647, still in force, the owner of the upland owns the foreshore to low-water mark (if not over one hundred rods from high-water mark), and in Rhode Island the law is similar by a statute passed in 1707. Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. Rep. 548, 38 L. Ed. 331. See, also, Head v. Amos- keag Mfg. Co., 113 U. S. 9, 5 Sup. Ct. Rep. 441, 28 L. Ed. 889. Rundle v. Delaware & Raritan Canal Co., 14 How. 81, 14 L. Ed. 335; Home of Aged v. Commonwealth (1909), 202 Mass. 422, 98 N. E. 124. 6 Bed of navigable streams above tide ebb and flow, is in riparian pro- prietor ad medium filum and not in the State, in Nebraska, subject to public easement of navigation. Kin- kead v. Turgeon, 74 Neb. 580, 104 N. W. 1061, 109 N. W. 744, 1 L. R. A., N. S., 762, 13 Ann. Cas. 43. Like- wise in Idaho. Johnson v. Johnson, 14 Idaho, 561, 95 Pac. 499, 24 L. R. A., N. S., 1240; Lattig v. Scott, 17 Idaho, 506, 107 Pac. 47. 7 Weems etc. Co. v. People's etc. Co. (1909), 214 U. S. 345, 29 Sup. Ct. Rep. 661, 53 L. Ed. 1024. Accord, Whitaker v. McBride, 197 U. S. 510, 25 Sup. Ct. Rep. 530, 49 L. Ed. 857, Los Angeles etc. Co. v. Los Angeles, 217 U. S. 217, 30 Sup. Ct. Rep. 452. Ch. 39. MISCELLANEOUS RIPARIAN RIGHTS. (3d ed.) 935 Hagan, a case involving the question of title to certain lands in Mobile, Alabama, which had originally been below high-water mark, but had been reclaimed and improved. 8 The case aroused high feel- ing in the North at the time, having been taken as a decision in favor of the doctrine of "State rights," which was then, prior to the war, at its height. 9 Pollard v. Hagan was approved in Shively v. Bowlby, 10 and has been repeatedly reaffirmed since and become settled law. 11 8 Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565. 9 Upon similar lines the supreme court decided in favor of "State rights" in Kansas v. Colorado, supra, sec. 182; but the question in the lat- ter case involving public land had a history of its own independent of the present one, which half the Western States regard as making it a different question. 10 Mr. Justice Gray, in Shively v. Bowlby (152 U. S. 1, 26, 27, 14 Sup. Ct. Rep. 548, 38 L. Ed. 331), says: "In Pollard v. Hagan (1844), this court, upon full consideration (over- ruling anything to the contrary in Pollard v. Kibbe, 14 Pet. 353, 10 L. Ed. 490, Mobile v. Eslava, 16 Pet. 234, 10 L. Ed. 948, Mobile v. Hallett, 16 Pet. 261, 10 L. Ed. 958, Mobile v. Emanuel,-! How. 95, 11 L. Ed. 60, and Pollard v. Files, 2 How. 591, 11 L. Ed. 391), adjudged that upon the admission of the State of Alabama into the Union the title in the lands below high-water mark of navigable waters passed to the State." 11 The title and rights of riparian or littoral proprietors in the soil be- low high-water mark are governed by the laws of the various States. Kan- sas v. Colorado, 206 U. S. 46, 27 Sup. Ct. Rep. 655, 51 L. Ed. 956; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838, 35 L. Ed. 428; With- ers v. Buckley, 20 How. 84, 15 L. Ed. 816; United States v. Rio Grande Dam & Irr. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, 43 L. Ed. 1136; Gutierres v. Albuquerque Land Co., 188 U. S. 545, 23 Sup. Ct. Rep. 338, 47 L. Ed. 588; Martin v. Wadell, 16 Pet. 367, 10 L. Ed. 997; Huse v. Glover, 119 U. S. 546, 7 Sup. Ct. Rep. 313, 30 L. Ed. 487; St. Louis v. Meyers, 113 U. S. 566, 5 Sup. Ct. Rep. 640, 28 L. Ed. 1131; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; Strader v. Graham, 10 How. 82, 13 L. Ed. 337; The Montello, 20 Wall. 430, 22 L. Ed. 391 ; Boquillas Cattle Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. Rep. 493, 53 L. Ed. 822; St. Anthony Falls Water Power Co. v. Water Com- missioners, 168 U. S. 349, 18 Sup. Ct. Rep. 157, 42 L. Ed. 497; Goodlittle v. Kibbe, 9 How. 471, 13 L. Ed. 220; Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. Rep. 210, 34 L. Ed. 819; Kean v. Calumet Canal Co., 190 U. S. 452, 23 Sup. Ct. Rep. 651 ; Kaukauna Water Power Co. v. G. B. & "M. Canal Co., 142 U. S. 254, 12 Sup. Ct. Rep. 173, 35 L. Ed. 1004; Whitaker v. McBride, 197 U. S. 510, 25 Sup. Ct. Rep. 530, 49 L. Ed. 857; Weems etc. Co. v. People's etc. Co. (1909), 214 U. S. 345, 29 Sup. Ct. Rep. 661, 53 L. Ed. 1024; Lowndes v. Huntington, 153 U. S. 30, 14 Sup. Ct. Rep. 758, 38 L. Ed. 623; Jackson v. Chew, 12 Wheat. 168, 6 L. Ed. 589; Green v. Neal, 6 Pet. 296, 8 L. Ed. 404; Webster v. Cooper, 14 How. 504, 14 L. Ed. 517; Carrol Co. v. United States, 18 Wall. 82, 21 L. Ed. 775 ; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. Rep. 652, 28 L. Ed. 1015; St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. Rep. 337, 34 L. Ed. 941. In McKeen v. De- lancy, 9 U. S. (5 Cranch) 22, 3 L. Ed. 25, Marshall, C. J., said: "But in construing the statutes of a State on which land titles depend, infinite mis- chief would ensue should this court ob- serve a different rule from that which has been long established in the State." Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997, has been said to be the first case in which it was con- tended in the United States supreme court that the decisions of the State courts should control. 936 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 899 Streams floatable for logs are public highways. 12 (3d ed.) 899. Public Rights in Navigable Streams. The right of the public in navigable streams is to use them as highways; that is, an easement. ' ' The right of navigation is simply a right of way. ' ' 1S Only the State or someone injured in navigation can object to acts done upon a navigable stream on the ground of interference with the navigation. 14 Such acts are a public nuisance, and no prescrip- tive right can arise to impede navigation. 15 Deposit into a navi- gable stream, by a hydraulic mining company, of debris consisting of gravel, sand and other refuse to the impairment of navigation constitutes a public nuisance, the right to continue which cannot be acquired by priority or prescription, so as to bar a proceeding in- stituted by the attorney general in the name of the people to compel a discontinuance of the acts which constitute the nuisance ; 1G or at suit of a private person suffering special damage. 17 So of sawdust, chips, bark, and other sawmill refuse deposited in a harbor. 18 12 Kamm v. Normand, 50 Or. 9, 126 Am. St. Rep. '698, 91 Pac. 448, 11 L. R; A., N. S., 290; Falls Mfg. Co. v. Oconto etc. Co., 87 Wis. 134, 58 N. W. 257. As to what is a navigable stream, see Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845; State ex rel. Pealer v. Superior Ct. (Wash.), 109 Pac. 340. Regarding logging, see, also, Potlach Co. v. Peterson, 12 Idaho, 769, 118 Am. St. Rep. 2.53, 88 Pac. 426; Flinr v. Vaughan (Or.), 106 Pac. 642; State ex rel. Uniteu Tanners etc. Co. v. Superior Court (Wash.), 110 Pac. 10] 7. 13 Orr Ewing v. Colquhoun, 2 App. Cas. 846. 14 Miller v. Enterprise Co., 142 Cal. 208, 75 Pac. 770; Davenport v. Ren- wick, 102 U. S. 180, 26 L. Ed. 51;. United States v. Rio Grande etc. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, 43 L. Ed. 1136. is Supra, sec. 528, pollution. See Cal. Stats. 1909, c. 93; Trullinger v. Howe, 53 Or. 219 ; 97 Pac. 548, 99 Pac. 880, 22 L. R. A., N. S., 545. A dam or any other obstruction to navi- gation is a public nuisance, and no lapse of time will bar the right of the public to remove it. Charnley v. Shawana Water Power & Imp. Co., 109 Wis. 563, 85 N. W. 507, 53 L. R. A. 895; Southern Ry. Co. v. Fer- guson, 105 Tenn. 552, 80 Am. St. Rep. 908, 59 S. W. 343; Vooght v. Winch, 2 Barn. & Aid. 662; Renwick v. Morris, 7 Hill, 575; Olive v. State, 86 Ala. 88, 5 South. 652, 4 L. R. A. 33; Crill v. Rome, 47 How. Pr. 406; Dyer v. Curtis, 72 Me. 181. Obstruc- tion of the passage of fish to an in- land lake, State v. Franklin Falls Co., 49 N. H. 240, fi Am. Rep. 513; or up a stream, State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199 ; or a dam and mil] or refjige therefrom preventing the floating of logs down a stream capable thereof, Collins v. Howard, 65 N.' H. 190, 18 Atl. 794; Knox v. Chanoler, 42 Me. 150; Veazie v. Dwinel, 50 Me. 497. 16 People v. Gold Run Ditch & Min- ing Co., 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152. 17 Debris Cases, 18 Fed. 752; supro, sec. 528. 18 Ogdensburg v. Lovejoy, 2 Thomp. & C. 82, 58 N. Y. 662. But see Atty. Gen. ex rel. Mann v. Revere Copper Co., 152 Mass. 444, 25 N. E. 605, 9 L. R. A. 510; Chicago v. Laflin, 49 111. 172. 900 Ch. 39. MISCELLANEOUS RIPARIAN RIGHTS. (3d ed.) 937 California was admitted into the Union .in 1850 and the act for admission of September 9th 19 provides: "That navigable waters are declared common highways and forever free to the inhabitants of the State and citizens of the United States without any tax, im- post, or duty therefor." (3d ed.) 900. Public Authority Over Navigation. Congress has, under the interstate commerce clause of the Federal constitution, complete power over navigable waters of the United States in the interest of commerce, and may declare what structures or obstruc- tions may be permitted or prohibited. 20 Congress can authorize a bridge across navigable waters without concurrence of the State, 21 or the construction of a bridge within the limits of a State which has not consented to but has protested ; 22 or can order the removal of a bridge as an obstruction to navigation although wholly within the limits of a State, which State authorized its construction. 23 An act of Congress may legalize a bridge so far as concerns a contract between two States that the navigation of the river shall remain free and unobstructed, 24 or a similar provision in a treaty with a foreign power. 25 The Federal Dam Act of 1910 is given in the collection of statutes in Part VIII, below. In the absence of action by Congress, the State has the right to improve a navigable river for the purpose of navigation. It may do this itself or it may delegate to another the authority to do so. No private party or company can acquire the right, by filing articles of incorporation without express delegation of authority from the State, either to improve navigation or to collect tolls for the use of such improvements, even when such a purpose is specified in those articles. 1 The State may impose charges on the franchise. 2 19 9 Stat. 453. Co., 1 Inters. Com. Rep. 411, 32 Fed. ,, 2< ^ IJri l t 1 e i^ at o e fo V -? 0rtb ? 100 fie , M 9 ' 22 Pennsylvania R. Co. v. Haiti- C -'4 1 u F ^- } P ?? rlV *S iae ft more & N. Y. R. Co., 37 Fed. 129. Co. v. Wheeling etc Bridge Co, 18 23 United gtateg v> ' ci f M u How. 421, 15 L. Ed. 435; Miller v. R o p pf i KQO S w YJ k ' T 13 . t Blatchf. 469 Fed. Cas. ^Pennsylvania etc. Co. v. Wheel- No. 9o8o; United States v Milwaukee . t B / }d Q lg R 421 lg etc. Co, 5 Biss. 410, Fed. Cas. No. L Ed 435 15,778; New Port etc. Co. v. United '^ ^ C ]i nton Bridee Fed Cas States, 105 U. 8 470, 26 L Ed 1143 ; No J 1 Woolw 150 g ' Jf a m ^ ^ rf * Si S 1 State v - Portland etc. Co, 52 ?, 5 % U SUP> Ct P ' ' Or. 502, 95 Pac. 722, 98 Pac. 160. L. Ed. 808. See Wagh 21 Stockton v. Baltimore & N. Y. R. 3 Ibid. 938 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 901 B. ACCRETION AND BOUNDARIES. (3d ed.) 901. Accretion. Accretion is the slow and imperceptible addition of alluvial deposit on the margin of a body of water ; avul- sion is the formation of dry land by a sudden and quick change in the permanent position of the body of water. 3 These distinctions have come into the common law from the civil law. It has been expressly said : ' ' Our law may be traced back through Blackstone, 4 Hale, 5 Britton, 6 Fleta, 7 and Bracton, 8 to the Institutes of Justinian, 9 from which Bracton evidently took his exposition of the subject." 10 Accretions must be the imperceptible or gradual additions to the plaintiff's lands, or the gradual receding of the river therefrom. If the accretions were to an island on the south side, and to the main land on its north side, and by a change of the river they were thus brought together, such a union of the two tracts did not make the island an accretion to the main land. 11 "An accretion to land is the imperceptible increase thereto on the bank of a river by alluvion occasioned by the washing up of sand or earth, or by derelic- tion as when the river shrinks back below the usual water mark; and land so formed by addition belongs to the owner of the land immediately behind it. ' ' 12 The change must be permanent; the doctrine of accretion does not apply to land alternately above and under water, so long as the water substantially retains its old boundaries. 13 A riparian owner 3 See, as to accretions, alluvion, and 10 Lindley, L. J., in Foster v. boundaries, Cal. Civ. Code, sees. 830, Wright, 4 C. P. D. 438. 1014, 1015, and Code Civ. Proc., sec. n Hahn v. Dawson, 134 Mo. 581, 2077. See article in Journal of 590, 36 S. W. 233. American Engineering Societies, vol. 12 Lammers v. Nissen, 4 Neb. 245. 44, p. 215, for April, 1910, contain- "All the authorities agree that in or- ing an article by Mr. Otto Von Gel- der that a shore owner take land by dern. For a discussion of the law of way of accretion or reliction, it must accretion, see McBride v. Steinweden, appear that the addition was to his 72 Kan. 508, 83 Pac. 822; Fowler v. shore either by the deposit of earth Wood, 73 Kan. 511, 117 Am. St. Rep. or by the receding of the water from 534, 85 Pac. 763 ; 6 L. R. A., N. S., his land, and that such addition must 162. be by slow and imperceptible pro- A. \r i TT -IR ^ OAT oo cesses." Hammond v. Shepard, 186 i Vol. II, c. 16, pp. 261, 262. in ^ ?g Am gt Rgp ^ > 7 N 5 De Jure Maris, ce. 1, 6. E. 867. 6 13 "Lacus et stagna, licet interdum ' c ' ' crescant, interdum exarescant, suos 7 Bk. Ill, c. 2, sec. 6, etc. tamen terminos retinant ideoque in R T*V TT o kis jus alluvionis non adgnoscitur." Bit. II, e. I. Jugt D i gest> lib. 41, tit. 1 (Sec. 12 9 Just. II, 1, 20. Callistratus, lib. 2 Institutionum). 902 Ch. 39. MISCELLANEOUS EIPAKIAN EIGHTS. (3d ed.) 939 has no vested right to have conditions maintained such that accre- tions will continue to be formed in the future. 14 Accretions on navigable and non-navigable rivers or other waters belong to the owner of the bank to which they attach ; 15 and if they are formed upon the banks of two opposite owners, are to be divided between them. 18 If one bank is public land, the government is en- titled to its share with the opposite private owner. 17 The right to accretions is one of the numerous riparian rights founded upon the riparian owner's right of access to the river, which carries with it the right to any formations which would de- stroy the right of access if not regarded as his property, 18 and for the same reason the riparian owner is entitled likewise to artificial formations upon his bank wrongfully produced by strangers to him by artificial means. 19 In Western jurisdictions rejecting the common law of riparian rights in toto in favor of the law of appropriation, the riparian right of accretion remains so long as the stream has not been diverted by any appropriator. 20 (3d ed.) 902. Islands. Islands rising in a river unconnected with the bank belong to the owner of the bed at that place. In jurisdictions where the State owns the bed of innavigable streams, islands formed therein belong to the State, though .by later 14 Western Pac. Co. v. Southern ary changing as the shore line Pac. Co., 151 Fed. 376, 80 C. C. A. changes by accretion or erosion, in 606. the absence of definite intention to 15 Kinkead v. Tureeon, 74 Neb. the contrary." Stockley v. Cissna, 580, 104 N. W. 1061, 109 N. W. 744, U9 Fed. 822, 56 C. C. A. 324. 1 L. K. A., N. S., 162, 13 Ann. Cas. i8 And if accretion continues until 43; Hathaway v. Milwaukee, 132 the opposite banks come together, the Wis. 249, 122 Am. St. Rep. 975, line of contact will be the division 111 N. W. 570, 112 N. W. 455, 9 line. Buse v. Russell, 86 Mo. 209- L.. R. A., N. S., 778; Judson v. Tide- 214. water Co., 51 Wash. 164, 98 Pac. 17 Bigelow v. Hoover, 85 Iowa, 377; Ami Co. v. Tidewater Co., 51 igi 39 Am. St. Rep. 296, 52 N. W. Wash. 171, 98 Pac. 380. "The doc- i4. trine is well settled that when lands 18 Dietrich v Nor thwestern By. border on navigable rivers and the c 42 wig 2g2 24 A R 399 banks are changed by that gradual and imperceptible process known as i Steers v. City of Brooklyn, 101 'accretion' the boundaries of the ri- N. Y. 51, 4 N. E. 7. parian proprietor still remain the 20 Sternberger v. Seaton etc. Co. river, although as a consequence of (1909), 45 Colo. 401, 102 Pac. 168; such change in the shore line the area Hutchinson v. Watson D. Co. (1909), of the possession may change. A 16 Idaho, 484, 133 Am. St. Rep. 125, boundary on a river implies a bound- 101 Pac. 1059. 940 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 903 accretions joined to the bank. "Additions to the land of a littoral proprietor by the action of the water become a part of the land, and belong to the owner, where they are so gradual as to be imper- ceptible; but if an island arises out of the water, and afterward becomes connected to the land of the littoral proprietor, it belongs to the State." 21 (3d ed.) 903. Boundaries. Owing to the law of accretion, water boundaries, at common law, shift with the water, and are not fixed. The California Civil Code provides : ^ ' ' Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide water, takes to ordinary high- water mark ; when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark ; when it borders upon any other water, the owner takes to the middle of the lake or stream." ^ This boundary shifts with the water, at common law. "Suppose the Crown, being the owner of tho foreshore that is, the space between high and low water mark grants the adjoining soil to an individual ; and the water gradually recedes from the foreshore, no intermediate period of the change being perceptible ; in that case, the right of the grantee of the Crown would go forward with the change. On the other hand, if the sea gradually covered the land so granted, the Crown would be the gainer of the land. The principle laid down by Lord Hale, that the party who suffers the loss shall be entitled also to the benefit , governs and decides the question. " 24 As stated in another authority, ' ' The question is well settled at common law that the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose 21 People v. Warner, 116 Mich. 641, 31 L. R. A. 317. See South 228, 74 N. W. 705. Accord, Cooley Dakota Stats. 1911, e. 189, p. 231. v. Golden, 117 Mo. 33, 49, 23 S. W. 22 Section 830 of the California 100, 21 L. R. A. 300; Holman v. Civil Code. Hodges, 112 Iowa, 714, 84 Am. St. 23 g ee Drake v. Russian River Co., Rep. 367, 84 N. W. 950, 58 L. R. 10 Cal. App. 654, 103 Pac. 167. A. 673; Perkins v. Adams, 132 Mo. 24 Alderson, B., in The Matter of 131, 139, 33 S. W. 778; Tatum v. the Hull and Selby Railway, 7 City of St. Louis, 125 Mo. 647, 28 Mees. & W. 327. To the same S. W. 1002; Chinn v. Naylor, 182 effect, Adams v. Frothingham, 3 Mo. 583, 81 S. W. 1109; Wallace v. Mass. 352, 3 Am. Dec. 151; Phillips Driver, 61 Ark. 429, 435, 33 S. W. v. Rhodes, 7 Met. (Mass.) 322. 903 Ch. 39. MISCELLANEOUS EIPAEIAN EIGHTS. (3d ed.) 941 land is thus bounded is subject to loss, by the same means which may add to his territory, and as he is without remedy for his loss, in this way, he cannot be, held accountable for his gain." 25 A strip of land having both its lateral boundaries upon water may hence become a movable freehold when both boundaries shift. 1 Where, however, a grant clearly intends a fixed boundary and contains words expressly negativing the common-law rule, then the boundary will not shift, nor will the grantee be entitled to accretions. 2 Where an owner of land plats the land both upland and shallow, and sells both separately, he in effect disassociates his riparian rights from the upland estate, and the owner of the upland cannot prevent a purchaser of submerged land from re- filling land which has been covered by the advancing landward of the shore line. 3 So, where by statute an artificial harbor line is established, riparian rights whether of accretion or wharfage, do not extend beyond that statutory line. This was early settled as to San Francisco harbor. 4 In another early case it was held: "We do not consider that the plaintiff is a riparian proprietor in the sense in which the term is used in the law of tide waters. He is not an owner upon the 'shore,' but upon a 'waterfront' of statute creation. The waterfront established by the act of March 5. 1851, is what that act has made it to be, and the rights of the plaintiff as the owner of a beach and water lot abutting upon it exist only in subordination to that act. It is provided in the fourth section of the act that the boundary line described in the first section shall be and remain a permanent waterfront of said city; and special provision is made for keeping it free and clear of all obstructions ..... 'Shore' is the space between high and low water mark. Against the plaintiff's water lot there is no such space. The waterfront at the point is below low water mark, and there can be no riparian right to build a wharf or pier beyond 25 New Orleans v. United States, 10 2 Cook v. McClure, 58 *N. Y. 437 Pet. 717, 9 L. Ed. 595. See, also, , ? . R 270 Scratton v. Brown, 4 Barn. & C. 485, 107 Eng. Eeprint, 1140; Camden etc. 3 Gilbert v. Eldridge, 47 Minn. Co. v. Lippincott, 45 N. J. L. 415, 210, 49 N. W. 679, 12 L. E. A. 411. 417 (citing cases) ; Wallace v. Driver, 61 Ark. 432, 33 S. W. 641, 31 L. E. 4 Eldridge v. Cowell, 4 Cal. 80, A. 317 (citing cases) ; De Lancey holding that one who took with v. Wellbrock, 113 Fed. 103. knowledge of the San Francisco pl takes citing Scratton v. Brown, 4 Barn. & Wlthout npanan rights, and cannot C. 485, 107 Eng. Eeprint, 1140. object to filling in in front of him. 942 (3d ed.) Pt. IV. THE COMMON LAW OF EIPARIAN RIGHTS. 904 it ; and it follows that 'if a wharf should be built by a stranger below the line of low water, that the owner of the adjacent up- land would have no right of entry upon it on which he could main- tain ejectment." 5 And in the supreme court of the United States: "But in this case no inquiry as to the rights of a riparian proprietor by either the common law or local usage or regulation, is needed. The complainant is not the proprietor of any land bordering on the shore of the sea, in any proper sense of that term. His land is situated nearly half a mile from what was the shore of the bay of San Francisco, at the time California was admitted into the Union, and over it the water at the lowest tide then flowed at a depth sufficient to float vessels of ordinary size. There is, therefore, no just foundation for the claim by the complain- ant as riparian proprietor of a right to wharf out into the bay in front of his land." 8 C. WHARFAGE AND OTHER RIPARIAN OR LITTORAL RIGHTS. (3d ed.) 904. Access. As elsewhere set forth, all riparian rights are founded upon the natural situation of riparian lands, giving access to the natural resource. 7 The right to preserve and enjoy this natural situation the right of access is the essence of all, and is in itself a right of property. The right of access is his only, and exists by virtue and in respect of his riparian property. It is distinct from title to the bed of the water. It exists in the case of tide waters, even where the shore is the sovereign's property, both when the tide is out and when it is in. It is distinct from the public right of navigation, and an interruption of it is an en- croachment upon a private right, whether caused by a public nuisance or authorized by the legislature. In Lyon v. Fish- 5 Dana v. Jackson St. Wharf Co., of the rights of either, and neither 31 Cal. 121, 89 Am. Dec. 164. the first nor the last grantee will 6 Weber v. Harbor Commrs., 18 acquire any exclusive riparian privi- Wall. (U. S.) 65-67, 21 L. Ed. 802. leges. None of such grantees are in So of the statutory waterfront of any proper sense riparian owners at New York harbor 'it is held: "In all, and riparian rights do not attach the absence of an express grant of to such grants." Turner v. People's wharfage, or of such manifest inten : Ferry Co., 21 Fed. 93, 94. See tion, the city or the State, as the Hoboken v. Pacific Ry. Co., 124 U. case may be, may make successive S. 690, 8 Sup. Ct. Rep. 643, 31 L. grants of its lands under water, Ed. 543. each in front of the former, to dif- 7 Supra, sec. 692 et seq. ferent grantees, without any violation 904 Ch. 39. MISCELLANEOUS RIPARIAN RIGHTS. (3d ed.) 943 mongers' Co. 8 it was said that the rights of a riparian proprietor, so far as they relate to natural streams, exist jure naturae, because his land has by nature the advantage of being washed by the stream, and as the facts of nature constitute the foundation of the right, the law should recognize and follow the course of nature in every part of the stream. The owner of land bounded by a navigable river has the right to free communication between his premises and the navigable channel of the river. 9 Acts of a boom company obstructing navi- gation of a river may be enjoined in an action by persons whose use of the river, ordinarily affording them ingress to and egress from their lands, is thereby interfered with. 10 A railroad being built between a wharf and the water, compensation must be made to the wharf owner. 11 An embankment for a road along the shore is such an injury to the riparian owner as to entitle him to dam- ages. 12 Special damages are sustained by one whose means of access to his cottage on the banks of a navigable river is cut off by an obstruction of the stream with logs (there being no other highway leading thereto), so as to entitle him to recover damages for the obstruction. 13 In most States, this right of access cannot be taken from the riparian owner without compensation, even for the improvement of navigation. If the acts done or structures built in the im- provement of navigation destroy the right of access or other ripa- s T T? i A Tna fi73 in Oh 12 Buccleuch v. Metropolitan Bd. Li. K. 1 App. <^as. D/o, 1U UQ. - -rov.-!,- T Q v^ OAG c"n A A T T r>i; -\x a 7/17 59 T T * Works, Li. K. 6 r-x. oOb. See, 6/9. 44 Li. J. On. M. H. 747, oo LJ. 1., ,, ... _, , - Tr , N.'S, 146, 24 Week. Rep. 1, se^ f> Me tropo htan . Bd of Works v ^pra/sec. 698. L J C^P^ N S, ?85 31 L.' T , Case v. Toftus, 37 Fed. 730, 5 N. S., 132; Original Hartelpool Coi- L. R. A. 684; Paine Lumber Co. v. ii er ies Co. v. Gibb, L. R. 5 Ch. D. United States, 55 Fed. 854; Hedges 713. Bell v. Quebec, L. R. 5 App. v. West Shore R. Co., 80 Hun, 310, Oas. 98, 49 L. J. P. C., N. S., 1, 30 N. Y. Supp. 92; Yates v. Mil- 41 L. J. 451, Atty. Gen. v. Wemyss, waukee, 10 Wall. 497, 19 L. Ed. 984; L. B . ^ A pp. Cas. 192; Rose v. Shepard v. Coeur d'Alene Co., 16 Groves, 5 Man. & G, 613, 6 Scott Idaho, 293, 101 Pac. 591. N. R. 645, 1 Dowl. & L. 61, 12 L. 10 Hulet v. Wishkah Boom Co. J- C. P., N. S., 251, 7 Jur. 951; (1909), 54 Wash. 510, 132 Am. St. Kearns v. Cordwainers Co., 6 Com. Rep. 1127, 103 Pac. 814. B., N. S., 388, 28 L. J. C. P., N. S., . a _, _ ,, 285, 5 Jur., N. S., 216. Regarding 11 B , e Vo? U ? W * P- 970 % wharfage and riparian rights on navf Mees. & W. 699 2 Ry Cas. 279. See w T e 127 | m . St . R Attorney General v. Conservators of |Q note the Thames, 1 Hem. & M. 1, 8 Jur, ' 13 Sin ' Aroostook Lumber Co., N. S, 1203, 11 Week. Rep. 163; 71 1Q3 Me 3? 6g Atl 52? u L> R A Eng. Reprint 1. N> g ^ 1083> 944 (3d ed.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 904 rian rights of a riparian owner, the riparian owner is entitled to damages as for taking of private property for a public purpose, for the rule in the majority of the States recognizes his right of access to navigability as private property which cannot be taken from him by the State without compensation. In one California case it is said: "The State cannot make, nor authorize to be made, any obstruction in navigable waters in front of any riparian pro- prietor, which will prevent his having free access by water to his land, unless it be done in the exercise of its power to take private property for public use, and compensation made there- for." 14 The rule in New York seems opposed to this. 15 The supreme court of the United States also doubted whether the riparian owner should have compensation, upon principle, but holds that whether he shall or shall not is entirely a question of State law, 16 and that it will uphold the State upon whichever stand it takes. 17 14 Eldridge v. Cowell, 4 Cal. 80. A leading case is Yates v. Milwau- kee, 10 Wall. 497, 19 L. Ed. 984, cited and approved in San Francisco Sav. Union v. R. G. R. Petroleum Co., 144 Cal. 134, 103 Am. St. Rep. 72, 77 Pac. 832, 66 L. R. A. 242, 1 Ann. Gas. 182. The California Political Code, section 404", pro- vides expressly for protection of ri- parian owners where counties improve river-beds, etc. See, also, Shepard v. Coeur d'Alene Co. (1909), 16 Idaho, 293, 101 Pac. 591; Kamm v. Normand, 50 Or. 9, 126 Am. St. Rep. 698, 91 Pac. 451, 11 L. R. A., N. S., 290; Bigham Bros. v. Port Arthur etc. Co., 100 Tex. 192, 97 8. W. 686, 13 L. R. A., N. S., 656; Mashburn v. St. Joe Imp. Co, (Or.), 113 Pac. 92; Wash. Stats. 1911, c. 11, sec. 7, Bubd. d. See, also, note to State ex rel. Denny v. Bridges, 19 Wash. 44, 52 Pac. 326, 40 L. R. A. 593. 15 Scranton v. Wheeler, 179 U. S. 141, 21 Sup. Ct. 48. 45 L. Ed. 126; Gould v. Hudson R. Co., 6 N..Y. 552; Lansing v. Smith, 4 Wend. 21, 21 Am. Dec. 89; People v. Tibbetts, 19 N. Y. 523; People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461; Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Langdon v. New York, 93 N. Y. 129; Sage v. New York, 154 N. Y. 61, 61 Am. St. Rep. 592, 47 N. E. 1096, 38 L. R. A. 606. And see Cohen v. United States, 162 Fed. 364; Crawford etc. Co. v. Hathaway, 67 Neb. 325, 108 Am. St. Rep. 647, 93 N. W. 781, 60 L. R. A. 889. In an early English case it was held that no compensation need be given for pollution of water (rendering in salt) in improvement of navigation, saying (as previous sections have shown no longer to be the law) that there could be no private riparian right in navigable streams. Lord Ellenborough in The King v. Directors of Bristol Dock Co., 12 East, 429, 104 Eng. Reprint, 167. Contra, see Big- ham Bros. v. Port Arthur etc. Co., 100 Tex. 192, 97 S. W. 686, 13 L. R. A., N. S., 656. 18 Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224, quoted with approval in Hardin v. Jordan, 140 U. S. 382, 11 Sup. Ct. Rep. 808, 838, 35 L. Ed. 433; Shively v. Bowlby, 152 U. S. 49, 14 Sup. Ct. Rep. 548, 38 L. Ed. 349; Packer v. Bird, 137 U. S. 671, 11 Sup. Ct. Rep. 210, 34 L. Ed. 821. 17 United States v. Mission Rock Co., 189 U. S. 391, 23 Sup. Ct. Rep. 606, 47 L. Ed. 865. Supra, sec. 898, note 11. 905 Ch. 39. MISCELLANEOUS KIPAEIAN EIGHTS. (3d ed.) 945 (3d ed.) 905. Wharfage, etc. The riparian owner's right of access gives him the right to exercise the same by wharfing out into navigable waters. 18 In the leading case of Yates v. Milwaukee 19 it is said: "But whether the title of the owner of such a lot ex- tends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor, whose land is bounded by a navi- gable stream ; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier, for his own use or for the use of the pub- lic, subject to such general rules as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be." Erections may be placed in the sea or its shores and belong to the maker, quod nullius sit, occupantis fit; provided it does not interfere with navigation or the prior structures of individuals. 20 If the owner of land bounded by the shore upon tidewater makes improvements upon or reclaims the shore adjoin- ing his lands, the part of the shore so improved or reclaimed be- longs to him, and cannot be granted by the State. 21 If, however, they interfere with navigation or other public rights, they become purprestures and may be prohibited. For ex- ample, the courts of some States and of the United States have held that a riparian owner has not the right to maintain a dam or other obstruction which prevents the passage of fish up the streams, and that the legislature may establish regulations to pre- vent obstructions to the passage of fish. 22 Likewise, if they cause damage to other riparian owners, they are actionable by them. 23 It has been held that the right to wharf out may be severed from the land by grant. 24 The riparian owner on an artificial statutory waterfront has no right to wharf out, however. 25 is Coquille etc. Co. v. Johnson, 52 22 in re Delaware River (1909), Or. 547, 132 Am. St. Eep. 716, 98 131 App. Div. 403, 115 N. Y. Supp. Pac. 132; Montgomery v. Shaver, 40 750. Or 244, 66 Pac. 923; Stevens Point 23 Kuhnis v. Lewis etc. Co., 51 Boom Co. v. Reilly, 44 Wis. 295; Wash. 196, 98 Pac. 656. Eiver Co. v. Patterson, 98 U. S. 403, 24 Montgomery v. Shaver, 40 Or. 25 L. Ed. 206. 250, 66 Pac. 923; Coquille etc. Co. 19 10 Wall. 497, 19 L. Ed. 984. v. Johnson, 52 Or. 547, 132 Am. St. 20 Pothier, Droit de Propriete, opp. Rep. 716, 98 Pac. 132; Decker v. torn. 8, p. 150. Pac. etc. Co. (Alaska), 164 Fed. 977. 21 Heiney v. Noland, 75 N. J. L. See 40 L. R. A. 393, note. 397, 67 Atl. 1008. 25 Supra, sec. 903. Water Bights 60 946 (3ded.) Pt. IV. THE COMMON LAW OF KIP ARIAN EIGHTS. 906 (3d ed.) 906. Other Riparian Rights in Navigable Waters. In gen- eral, riparian owners have all the rights upon navigable rivers that they have on non-navigable rivers, provided they occasion no obstruction to the navigation, 1 since the right arises from ownership of the bank, not the bed. In Lyon v. Fishmongers r Co. 2 Lord Cairns said: "I cannot entertain any doubt that the riparian o'wner on a navigable river, in addition to the right con- nected with navigation to which he is entitled as one of the pub- lic, retains his rights, as an ordinary riparian owner, underlying and controlled by, but not extinguished by, the public right of navigation." In another English case Lord Blackburn said: "It was said in argument in the present case that whether the stream was navigable or not made no difference as to the rights of the riparian proprietors I agree to this," etc. 3 Thus, he has a right to a reasonable use of the water for irriga- tion, 4 or for power purposes, 5 and, in general, for other beneficial uses. "The rule is elementary that .... every proprietor of land on the bank of a stream of water, whether navigable or not, has the right to use the water, etc." 6 The riparian proprietor on a navigable stream has, among other rights, "the right to make a reasonable use of the water as it flows past or laves the land." 7 (3d ed.) 907. Fishing. The general common law of fishing is bor- rowed from the civil law. 8 In the civil law, the fish themselves 1 Supra, sec. 726. Aubrey & Eau, 4th ed., vol. Ill, p. 2 L. E. 1 App. Gas. 673. 16. 3 Orr Ewing v. Colquohoun, L. E. 6 Hamelin v. Bannerman [1895], 2 App. Cas. 861. See, also, Kent's App. Cas. 237; Trullinger v. Howe, Commentaries, lee. 52, 3 Kent, 429; 53 Or. 219, 97 Pac. 549, 99 Pac. 20 Harvard Law Eeview, 489, note; 880, 22 L. K. A., N. S., 545; Dodge Madison v. Spokane etc. Co., 40 v. Inhabitants of Eockport, 199 Wash. 414, 82 Pac. 719, 6 L. E. A., Mass. 274, 85 N. E. 172. N. S., 257 ; Myers v. City of . St. Lyon, J., in Kimberly etc. Co. Louis, 82 Mo. 367; Walker v. Board v. Hewitt, 79 Wis. 334, 48 N. W. of Pub. Works, 16 Ohio, 540; Judson 373, quoted in Green Bay Co. v. v. Tide Water Co., 51 Wash. 164, 98 Kaukauna Co., 90 Wis. 370, 48 Am. Pac. 377; Carli v. Stillwater Co., 28 St. Rep. 937, 61 N. W. 1121, 63 N. W. Minn. 276, 3 N. W. 348. 1019, 28 L. E. A. 443. 4 Heilbron v. Fowler etc. Co., 75 7 Lewis on Eminent Domain, 2d Cal. 426, 7 Am. St. Eep. 183, 17 Pac. ed., sec. 83; Taylor v. Commonwealth, 535; Bigham Bros. v. Port Arthur 102 Va. 759, 102 Am. St. Eep. 865, etc. Co., 100 Tex. 192, 91 S. W. 848, 47 S. E. 881. 97 S. W. 686, 13 L. E. A., N. S., 8 Shultz on Aquatic Eights, p. 1. . 656. Droit Civile Francais, par 907 Ch. 39. MISCELLANEOUS RIPARIAN RIGHTS. (3d ed.) 947 while swimming at large are "ferae naturae," in the "negative community," and belong to no one; the right of fishing is purely a usufructuary right ; the fish themselves become private property only when caught. 9 "The fish in the sea, rivers, lakes, etc., being in their natural freedom, are things, belonging to no one; fish- ing is a species of occupation whereby the fisherman acquires the property in the fish he catches, and thus takes into his posses- sion." 10 To illustrate this nature of property in fish, fishing in non-navigable rivers is not really larceny, though it may be treated as such; but regarding fish in a reservoir, these are in the posses- sion of him who is guarding them, who may permit their capture as he sees fit ; and there can be no doubt whatever that one who fishes there without his consent commits an actual larceny against the man to whom the reservoir belongs. 11 From this negative civil-law position of "belonging to no one," the change is now well established in the common law to the posi- tive one that fish swimming at large "belong to the State in trust for the public." 12 In navigable waters, the public has a right of fishing, so far as it has access to the water; and the riparian owners cannot prevent them. 13 But a lawful mode of access must be obtained by the public before it can exercise the privileges appertaining to navi- gable waters. 14 On non-navigable waters fishing is a private ripa- rian right belonging exclusively to the riparian owners. Lord Supra, sees. 2, 33; infra, sec. nent." Pothier, Traitfc du Droit de 1025. Propriety (op. torn. 8, p. 138). An 10 "Les poissons, qui sont dans la old English statute to protect private mer, dans les rivieres, les lacs, etc., fish-ponds is referred to by Lord etant in laxitate natural!, sont des Coke. "If a man committeth a tres- chose qui n'appartiennent a per- pass in the fish-pond, etc., of an- sonne: la peche, qu'on en fait, est other, by taking and carrying away un genre d'occupation par lequel les of water, he is no misfeasor within pecheurs acquierent le domaine des this statute; but if he let "out the poissons qu'ils pechent, et dont ila water to the end to take fish, he is a s'emparent par la peche qu'ils en misfeasor within this statute," etc., font." Pothier, Troite de Propriety 2 Coke's Inst., commenting on Stat. (op. torn. 8, p. 137.) 3, Edw. I. (Weston I.), cap. 20, 11 "A 1'egard des poissons, qui 6th ed. London, 1681, p. 200. sont dans un reservoir, ces poissons L2 Supra, sec. 6. etant sub manu et en la possession * 3 Willow R. Club v. Wade (1898), de celui qui les y garde, qui peut les 100 Wis. 86, 76 N. W. 273, 42 L. R. aller prendre toutes fois et quantes A. 305. See 13 Am. St. Rep. 416, que bon lui semble, il n'est pas doti- note. teux que celui, qui les y pecherait 14 Bolsa etc. Club v. Burdeck, 151 sans droit, ferait un veritable vol a Cal. 254, 90 Pac. 532, 12 L. R. A., celui a qui ces poissons appartien- N. S., 275. 948 (3ded.) Pt. IV. THE COMMON LAW OF RIPARIAN RIGHTS. 907 Hale says: 15 "Fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the property of the soil and consequently the right of fishing usque filum aquae; and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on the other side. ' ' 16 In the Western States which have rejected the common law of riparian rights in toto in favor of the law of appropriation, the riparian right of fishing is subordinate to the rights of others to appropriate the stream, and lasts only until some appropriator makes a diversion. 17 The State may regulate the use of non-navigable waters (and, in the absence of conflict with navigation, also of navigable waters) for the preservation of fish. 18 IB De Jure Maris, cap. I. 16 A civil-law authority says that by the Roman. law rivers were public, belonging to the people, though the use of them was allowed to everyone (tout le monde) and everybody (chacun) was permitted to fish there. It is different in our (French) law. The king owns all navigable rivers, and permits fishing therein only to "les fermiers du domaine et les engagistes," and others than "fermiers" cannot do it. "A 1'egard des rivieres non navigables, elles appartiennent aux differens particu- liers, qui sont fondes en titres ou en possession, pour s'en dire proprie- taire dans 1'entendue porter par leurs titres ou leur possession," and they alone can fish there. Pothier, Droit du Propriety op. torn. 8, p. 137. 17 Sternberger v. Seaton etc. Co. (1909), 45 Colo. 401, 102 Pac. 168. But see State v. Banker (Utah), 108 Pac. 352. is E. g., Cal. Pen. Code, sec. 629; People v. Truckee etc. Co., 116 Cal. 397, 48 Pac. 374, 39 L. R. A. 581; Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; Ex parte Bailey (1909), 155 Cal. 472, 132 Am. St. Rep. 95, 101 Pac. 441; Port- land etc. Co. v. Benson (Or.), 108 Pae. 122; In re Delaware River, 131 App. Div. 403, 115 N. Y. Supp. 750; Hooker v. Cummings, 20 Johns. 91, 11 Am. Dec. 249; People v. Doxtater, 75 Hun, 472, 27 N. Y. Supp. 481; affirmed, 147 N. Y. 723, 42 N. E. 724; Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; State v. Beardsley, 108 Iowa, 396, 79 N. W. 138; Stoughton v. Baker, 4 Mass. 522, 3 Am. Dec. 236; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. Rep. 600, 40 L. Ed. 793; Holy- oke Co. v. Lyman, 15 Wall. 500, 21 L. Ed. 133; Parker v. People, 111 111. 581, 53 Am. Rep. 643. In Common- wealth v. Essex Co., 13 Gray (Mass.), 249, Chief Justice Shaw says: "It seems to be well settled that the ob- struction of the passage of the annual migratory fish through the rivers and streams of the commonwealth is not an indictable offense at common law. But the right to have these fish pass up rivers and streams to the head- waters thereof is a public right, and subject to regulation by the legisla- ture." In Commonwealth v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386, the court held that: "In a river not navigable the proprietor of the adjoining soil has an exclusive right of fishery in front of his land to the thread of the river, except 'so far as this right has been qualified by legis- lative regulations. But this right is limited to the taking of fish, and does not carry with it a right to pre- vent the passage of fish to the lakes and ponds for the multiplication of the species." 908-1006 (Blank numbers.) 1007-1009 Ch.40. COMPAEISON. (3d ed.) 949 CHAPTER 40. COMPARISON OF THE LAW OF APPROPRIATION AND OF RIPARIAN RIGHTS. 1007. Purpose of this chapter. 1008. First principles. 1009. As dependent on ownership of land. 1010. Contiguity to the stream. 1011. Mode of acquisition. 1012. Beneficial use. i 1013. Preference of domestic use. 1014. Equality vs. priority. 1015. In California. 1016-1024. (Blank numbers.) (3d ed.) 1007. Purpose of This Chapter. It is our purpose in this short chapter to bring together in concise form, without citation of authorities, matters set forth, with regard to the systems of appropriation and riparian rights, in the foregoing two parts of this book, showing likenesses in the two systems, differences, and points where the differences are being bridged and the systems converging. (3d ed.) 1008. First Principles. Under both systems the corpus of running water in a natural stream is not the subject of ownership ; neither real property nor personal property, but in a class with the air in the atmosphere. It is in the "negative community" (or "publici juris," or "belongs to the public"). A right (called "usufructuary") may exist to use it. The corpus of any portion taken out of the stream and reduced to possession is private prop- erty so long as reduced to possession. The common law borrowed these principles from the civil law and the law of appropriation borrowed them from the common law. (3d ed.) 1009. As Dependent on Ownership of Land. To protect the landowners bordering upon the stream from trespass upon the land, the common law excludes nonriparian owners from the use 950 (3ded.) Pt. IV. THE COMMON LAW OF RIP AEIAN KI&HTS. 1010 of the water, and to prevent excessive damage between riparian owners, limits each to a reasonable use of his own land. The common law limits the use to riparian proprietors upon the ripa- rian lands and contemplates a settled community occupying such lands, being a system drawn from old-settled countries. But formerly in the West the bordering lands were open public do- main, and the United States, their sole owner, did not object to, but encouraged, the trespass and free diversion. The ownership of riparian or any land in a private individual was not regarded as necessary to his use of the water, and the attributes of the system of appropriation are those of a "free public land" system. The law of appropriation is hence independent of ownership of any land or the place of use. Upon this the law of appropriation is to some extent returning to the common law where statutes make the right to use water by appropriation inhere in the land irrigated. The free access, having thus given rise to the law of appro- priation, passes away as the bordering lands are settled. The right of the private land to the use of the water because of its contiguity is (so far as not diverted away while the land was public) recognized under the California doctrine but not under the Colorado doctrine. The latter has, however, returned to the principle of the common law so far as the private riparian land must not be trespassed upon to reach the water ; the appropriator must enter the stream on public land or proceed by grant, pre- scription or condemnation. (3d ed.) 1010. Contiguity to the Stream. Contiguity to the stream founds the riparian right but is disregarded by appropriation. A tendency to return to the common law is seen in decisions recog- nizing a right of appropriation in the riparian owner on proof of natural subirrigatien ; also in at least one arid State prohibiting appropriations for use beyond the watershed. (3d ed.) 1011. Mode of Acquisition. No formalities are needed to re- quire riparian rights at common law ; they attach ipso facto to the riparian land because of its contiguity to the stream. Certain formalities are required, on the other hand, to acquire rights by appropriation, and these formalities are being steadily increased. 1012-1014 Ch. 40. COMPARISON. (3d ed.) 951 (3d ed.) 1012. Beneficial Use. Actual use is the foundation of a right by appropriation; but future possible use stands as high at com- mon law as present use. Nonuse causes a loss of the appropria- tion, but does not affect the riparian right. The law of appropriation is returning to the common law in this regard so far as it recognizes appropriations for "future needs" without present application of the water ; also in allowing a num- ber of years before nonuse causes forfeiture. On the other hand, pressure by appropriators upon the courts tends to reduce the common-law protection of future use, as shown chiefly in regard to taking the riparian right on eminent domain. If the common law goes far in protecting the interests of private landowners, on the other hand the law of appropriation goes far in subordinating everything to present accomplishment. (3d ed.) 1013. Preference of Domestic Use. Statutes have intro- duced into the law of appropriation in some States a preference to domestic uses with or without a series of other rating of uses ; whereas the common law is abandoning the distinction between classes of uses. (3d e