y of Call 
 
 .ern Regioi 
 
 ibrary Facilit 
 
 (iti.t'-
 
 r 
 
 IS5'/ 
 
 THE LIBRARY 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 GIFT OF
 
 /^c
 
 A TREATISE 
 
 ox THK 
 
 Law of Irrigation 
 
 IMCIvUOIMG 
 
 THE LAW OF WATER-RIGHTS AND THE DOCTRINE OF APPROPRIATION 
 
 OF WATERS, AS THE SAME ARE CONSTRUED AND APPLIED IN 
 
 THE STATES AND TERRITORIES OF THE ARID AND 
 
 SEMI-HUMID REGIONS OF THE UNITED STATES ; 
 
 AND ALSO INCLUDING 
 
 THE STATUTES OF THE RESPECTIVE STATES AND TERRITORIES, AND 
 DECISIONS OF THE COURTS RELATING TO THOSE SUBJECTS. 
 
 BY 
 
 CLESSON S. KINNKY. 
 
 Sat.t IvAKK Citv I?ak. 
 
 WASHINCTOM, 1). C. 
 
 VV. IL LOWDERMILK & CO., 
 
 lyAw Publishers and Booksellers, 
 i«94.
 
 Entered according to Act of Congress, in the year 1893, by 
 
 CivESSON S. Kinney, 
 in tlie OflSce of the Librarian of Congress, at Washington. 
 
 r 
 
 FROM THE I'RESS OF SAl'P BROS. 
 117 LIGHT ST.. BALTIMORE.
 
 TO THE 
 
 HON. THOMAS M. COOLEY, LL. D., 
 
 WHO KMIXENTLV ADORNS AMERICAN JURISPRUDENCE, IN THE 
 CAPACITY OF 
 
 Judge, Author and Teacher, 
 
 AND IN EACH OF WHICH Hp; HAS NO SUPERIOR, 
 
 THIS WORK IS DEDICATED 
 
 AS AN EXPRESSION OF ADMIRATION AND RESPECT, HV ONE WHO 
 
 HAS ENJOYED THE GOOD FORTUNE OF BEING BOTH 
 
 HIS PUPII, AND FRIEND. 
 
 756535
 
 PREFACE. 
 
 The present work has been written with the hope that it 
 may prove serviceable to the profession in their investigation 
 of a subject comparatively new in the history of American 
 jurisprudence. Irrigation was born from the absolute neces- 
 sities of the settlers of an Arid Region. Although practiced 
 in the United States by an English speaking people but about 
 fifty years it has been the principal means of the settlement 
 and development of that portion of our country west of the 
 looth meridian, until to-day it has become a subject of 
 paramount importance to the whole country. 
 
 Involving, as it does, a use of water based upon the 
 principle of priority of appropriation — which doctrine was 
 not recognized by the common law — irrigation has caused 
 numberless controversies concerning water-rights. As the 
 result of these contentions a mass of court decisions and 
 statutory law upon the subject has been evolved which 
 governs the subject of waters in the Arid Region. 
 
 Part One of this volume is devoted to a general discus- 
 sion of the nature and history of irrigation and the general 
 law^s that govern the subject in the Arid Region. 
 
 As the character of irrigation law depends largely upon 
 the physical and topographical conditions of the State or 
 Territory wherein the same has been evolved and is in force, 
 in order to understand its development the author has very 
 briefly described the general condition of the various States 
 and Territories in Part Two. This part also contains an 
 abstract of the statutory laws and the construction of those 
 laws by the courts. 
 
 Clesson S. Kinnkv. 
 vSalt Lake City, Utah. 
 
 February 23, 1894.
 
 TABLE OF CONTENTS. 
 
 Part One. — History and General Principles. 
 
 CHAPTER I. 
 
 Pages. 
 
 Irrigation Past and Present i — 47 
 
 I. What is Irrigation ? 2 — 12 
 
 II. History of Irrigation in Various Countries 12 — 24 
 
 III. Value of Irrigation to Modern Civilization 24 — 47 
 
 CHAPTER II. 
 
 Classification of Waters 48— 71 
 
 I. Public or Navigable Waters 49 — 59 
 
 II. Rivers and Water-Courses Non-Navigable 59 — 71 
 
 CHAPTER III. 
 
 The Common Law Theories 72 — 149 
 
 CHAPTER IV. 
 
 The .\rid Region Doctrine 150 — 188 
 
 CHAPTER V. 
 
 Acquisition, Ownership, Disposal and Jurisdiction of 
 and Over Lands and Waters by the United 
 
 States 189—226 
 
 I. Source of Title of Government Land and Waters. . . . 190 — 203 
 
 II. Disposal of Public Lands and Waters 203 — 219 
 
 III. Jurisdiction over Public Lands and Waters 219 — 226 
 
 CHAPTER VI. 
 
 Methods by which an Appropriation oi" Water is 
 
 Effected 227—264 
 
 I. Essentials of an Appropriation 227 — 237 
 
 II. Method by which an .Appropriation is P)ffected 238 — 264
 
 viii TABLE OF CONTENTS — PART ONE. 
 
 CHAPTER VII. 
 
 Pages. 
 
 Rights Acquired by Appropriators as Against Others. 265 — 357 
 
 I. Rights Acquired in Waters by one Appropriator as 
 
 against other Appropriators 267 — 287 
 
 II. Appropriation as against a Congressional Grantee of 
 
 the Government 287 — 296 
 
 III. Controversies betvreen Conflicting Grants 296 — 297 
 
 IV. Appropriation as against Conflicting Claims of Set- 
 
 tlers on Lands 297 — 357 
 
 CHAPTER VIII. 
 
 Nature and Extent of Rights Acquired to Water 
 
 IN THE Arid Region by Appropriators 358 — 437 
 
 I. Rights Acquired by Virtue of an Appropriation of the 
 
 Waters or Streams or Lakes 359 — 405 
 
 II. Doctrine of Abandonment 405 — 41? 
 
 III. Doctrine of Estoppel 417—424 
 
 IV. Conveyance of Water-right and Sale of Water 424 — 437 
 
 CHAPTER IX. 
 
 Nature -'^.nd Extent of Rights Acquired to Waters 
 IN the Arid Region by Others than Appro- 
 priators 438 — 481 
 
 I. Rights Acquired by Riparian Owners 439—465 
 
 II. Rights Acquired under Mexican and Spanish Laws. . 465 — 469 
 
 III. Nature and Extent of Rights in Water Acquired by 
 
 Prescription 469 — 478 
 
 IV. Nature and Extent of Rights Acquired in Subter- 
 
 ranean Waters in the Arid West 478 — 481 
 
 CHAPTER X. 
 
 Ditch and Canal Companies 482 — 509 
 
 I. Unincorporated Ditch and Canal Companies 483 — 492 
 
 II. Private Incorporated Ditch and Canal Companies 492 — 493 
 
 III. Powers of Ditch and Canal Companies 493 — 500 
 
 IV. Duties of Ditch and Canal Companies 500 — 507 
 
 V. Liability of Ditch and Canal Companies 507 — 509 
 
 CHAPTER XI. 
 
 Legal, Remedies 510 — 529 
 
 I. Remedies in General 510 — 514 
 
 II. Remedies at Law 514 — 5I9 
 
 III. Equitable Relief 520 — 529
 
 table of contents. — part two. ix 
 
 Part Two. — State and Territorial L.a.ws. 
 
 CHAPTER XII. 
 
 Pages . 
 
 Laws Governing Irrigation in California 530 — 585 
 
 I. Irrigation in General 532 — 534 
 
 II. Statutory Laws Adopted by Civil Code of California. . 534 — 544 
 
 III. Regulation and Control of Ditch Companies 544 — 550 
 
 IV. California Irrigation District Law 550 — 574 
 
 V. Construction of California Irrigation District Law. . . 574 — 585 
 
 CHAPTER XIII. 
 
 N E VAD A 58b — 598 
 
 I. Subject Treated in General 586—589 
 
 II. General Statutory Enactments .... 589 — 597 
 
 III. Irrigation District Law 597 — 598 
 
 CHAPTER XIV. 
 
 Washington 599 — 608 
 
 I. Subject Treated in General 599—600 
 
 II. General Statutory Enactments 600 — 604 
 
 III. Irrigation District Law 605 — 608 
 
 CHAPTER XV. 
 
 Kansas 609—622 
 
 I. Subject Treated in General 609 — 611 
 
 II. General Statutory Enactments 611 — 613 
 
 III. An Act Regulating the Appropriation and Use of 
 
 Water; Prohibiting Unlawful Use Thereof; Pro- 
 viding for the Creation of Irrigation Districts 613 — 622 
 
 CHAPTER XVI. 
 
 UTAH 623—636 
 
 I. Subject Treated in General 623 — 625 
 
 II. General Statutory Enactments 625 — 632 
 
 III. Irrigation District Law. 633 — 636 
 
 CHAPTER XVII. 
 
 North Dakota 637—643 
 
 I. vSubject Treated in General 637 — 638
 
 X TABLE OF CONTENTS — PART TWO. 
 
 Pages 
 
 II. General Statutory Enactments of the Territory of 
 
 Dakota 638—640 
 
 III. General Statutory Laws of the State 640—641 
 
 IV. Irrigation District Law 641 — 643 
 
 CHAPTER XVIII. 
 
 South Dakota 644—650 
 
 I. vSubject Treated in General 644 — 645 
 
 II. General Statutory Enactments 645 — 646 
 
 III. Irrigation District Law 646 — 650 
 
 CHAPTER XIX. 
 
 AVyoming 651 
 
 I. Subject Treated in General 651—653 
 
 II. General Statutory Enactments 653 — 654 
 
 III. State Control of Waters 654-667 
 
 CHAPTER XX. 
 
 Oregon 668 — 678 
 
 I. Subject Treated in General 668 — 669 
 
 II. General Statutory Enactments 669 — 678 
 
 CHAPTER XXI. 
 
 Idaho 679-686 
 
 I. Subject Treated in General 679 — 680 
 
 II. General Statutory Enactments 680 — 686 
 
 XXII. 
 
 Nebraska 687 — 690 
 
 I. Subject Treated in General 687 
 
 II. General Statutory Enactments 687 — 690 
 
 CHAPTER XXIII. 
 
 Texas 691 — 695 
 
 I. Subject Treated in General 691 
 
 II. General Statutory Enactment 691 — 695 
 
 CH.\PTER XXIV. 
 
 Arizona 696 — 700 
 
 I. Subject Treated in General 696 — 697 
 
 II. General Statutory Enactments 697 — 700
 
 TABLE OF CONTENTS. — PART TWO. XI 
 
 CHAPTER XXV. 
 
 Pages. 
 
 New Mexico 701—709 
 
 I. Subject Treated in General 701—702 
 
 II. General Statutory Enactment 702—709 
 
 CHAPTER XXVI. 
 
 MONTAN.\ "^^ ''^^ 
 
 I. Subject Treated in General 710— 711 
 
 II. General Statutory Enactments 711— 7i5 
 
 CHAPTER XXVII. 
 
 Colorado 716—739 
 
 I. Subject Treated in General 716—717 
 
 II. Statutory Enactments— State Control of Water 717—737 
 
 III. Irrigation Ditch Corporations 737 739
 
 TABLE OF CASES CITED. 
 
 (The r/ferences are to the sections.) 
 
 Abel vs. Love, 301, 304. 
 
 Action vs. Blundell, 48, 49, 59, 78. 
 
 Adams vs. Barney, 56, 66. 
 
 Adams vs. Manning, 287, 297. 
 
 Adams vs. Pearse, 54. 
 
 Agawan Canal Co. vs. Edwards, 76 
 
 Alder G. M. Co. vs. Hayes, 154, 
 
 175- 
 Alexander vs. Kerr, 288. 
 Aldred's Case, 250. 
 Alexander vs. Woodford, etc., Co., 
 
 288. 
 Aliso Water Co. vs. Baker, 94, 357. 
 Alhambra Addition W. Co. vs. 
 
 Richardson, 225. 256, 350. 
 Allen vs. Joy, 94. 
 Alta Land, etc., Co., vs. Hancock, 
 
 256, 284, ?86, 294, 295, 296. 
 Amador Q. M. Co. vs. Davit, 357. 
 American Co. vs. Bradford. 154, 
 
 173. 175. 180, 256, 280, 293, 
 
 294, 295, 296, 329. 
 American Insurance Co. vs. 365 
 
 Bales of Cotton, 125. 
 American Insurance Co. vs. Car- 
 ter, 134, 145- 
 .•\mis vs. Smith, 146. 
 Amoskea» Mfg. Co. vs. Goodale, 
 
 75- 
 
 Anaheim Water Co. vs. Semi- 
 tropic Water Co., 246, 256, 260, 
 262, 273, 2S8, 295, 294, 296. 350. 
 
 Aneto vs. Restano, 296. 
 
 Anthony vs. Lapham, 56. 59, 66, 
 
 67, 68, 69, 73. 
 .•\riniond vs. Green Bay Co., 54. 
 Arkwright vs. Gell, 297. 
 Armstrong vs. Larimer Ditch Co., 
 
 556, 573- 
 Arnold vs. Foot, 59, 61, 66. 6q, 73. 
 
 76, 193- 
 
 Arnold vs. Mund}', 54,89. 
 
 Arredondo Case, 128. 
 
 Arthur vs. Case, 54. 
 
 Ashby vs. Eastern Railway Co., 64. 
 
 Ashby vs. Hall, 140. 
 
 Ashley vs. Pease, 59, 90. 
 
 Ashley vs. Wolcott, 39, 43. 
 
 Astron vs. Hammond, 208. 
 
 Atchison vs. Peterson, 56, 89, 98. 
 102, 113, 115, 140, 141, I59> 160, 
 161, 168, 173, 174, 175, 181, 184, 
 185, 187, 188, 189, 201, 205, 207, 
 209, 210, 218, 219, 223, 225, 230, 
 235. 237, 241, 245, 255, 332. 
 
 Atlee vs. N. W. TTnioii Packet Co., 
 41, 64. 
 
 Attorney General vs. Conservators 
 of the Thames, 64. 
 
 Attorney General vs. Delaware 
 Railway Co., 42, 54, 89. 
 
 Attorney General vs. Great Eastern 
 Railway Co., 66. 
 
 Attorney General vs. Woods, 40. 
 
 Atwood vs. Canan(lagua,46, 87. 
 
 Austin vs. Rutland Railway Co., 
 38. 87.
 
 XIV 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Babcock vs. Herbert, 41 • 
 Backus vs. Detroit, 54. 
 Bagnellvs.Broderick, 127, 194,213. 
 Bailey vs. Miltenberger, 54. 
 Bailey vs. Platte D. C. & M. Co., 
 
 570. 
 Bainbridge vs. Sherlock, 54. 
 Baker vs. Bessejs 268. 
 Baker vs. Brown. 68, 73, 527, 529. 
 Baker vs. Lewis, 42, 54. 
 Baldwin vs. Calkins, 75, 294. 
 Ball vs. Herbert, 53. 
 Ball vs. Kehl, 150, 193, 296. 
 Ball vs. Slack, 52, 54. 
 Ballard vs. Tomlinson, 298. 
 Balston vs. Bensted, 92, 256, 294. 
 Baltimore vs. McKin, 54. 
 Bangor vs. Lansil, 39. 
 Banghart vs. Flummerfelt, 93. 
 Bank of North America vs. Miller, 
 
 268. 
 Bankliead vs. Brown, 94. 
 Banks vs. Ogden, 55, 88. 
 Bardwell vs. Ames, 54, 91. 
 Barker vs. Richardson, 92. 
 Barkley vs. Tieleke, 35, 163, 173, 
 
 174, 223, 233, 253, 254, 259, 264, 
 
 332. 
 
 Barlow vs. Lambert, 201. 
 
 Barnard vs. Hinkley, 41. 
 
 Barnes vs. City of Racine, 54. 
 
 Barnes vs. Haynes, 92. 
 
 Barnes vs. Marshall, 350. 
 
 Barnes vs. Sabron, 39, 43, 106, 135, 
 154, 156, 161, 173, 175, 177, 
 178, 185, 186, 204, 207, 225, 
 227, 230, 231, 232, 236, 238, 
 249, 253, 274, 331, 397. 
 
 Barney vs. Keokuk, 54, 82. 
 
 Barney vs. Winona, etc., Ry. Co., 
 141. 
 
 Barnham vs. Freeman, 264. 
 
 Barham vs. Hostetter, 323, 327. 
 
 Barrett vs. Parsons, 76. 
 
 Barton vs. Richardson, 54. 
 
 Barrows vs. Fox, 342. 
 
 Basey vs. Galligher, 89, 102, 113, 
 115, 140, 141, 147, 150, 156, 
 173, 185, 187, 188, 189, 204, 
 207, 209, 219, 226, 235, 237, 
 241. 
 
 Bassett vs. Salisbury Mfg. Co., 39, 
 
 75'^ 
 
 Batavia Mfg. Co. vs. Newton Wa- 
 gon Co., 67. 
 
 Bates vs Brown, 127. 
 
 Bates vs. 111. Cent. Ry. Co., 58, 82. 
 
 Bates vs. Smith, 39. 
 
 Bates vs. Wilson, 565. 
 
 Bateman vs. Hussey, 75. 
 
 Bay City Gas Light Co. vs. Indus- 
 trial Works, 54. 
 
 Bealy vs. Shaw, 62, 79, 80, 81, 92, 
 250, 256, 294. 
 
 Beal vs. New Mexico, 134. 
 
 Bear River and Auburn Water and 
 Mining Co. vs. New York 
 Mining Co., 9, 99, 173, 225, 
 249, 250, 251, 330. 
 
 Bear River Co. vs. Boles, 182, 333. 
 
 Bear vs. Hoffman, 63. 
 
 Bear Lake and R. W. W. and Irr. 
 Co. vs. Ogden, 484. 
 
 Beard vs. Murphy, 39. 
 
 Beaver vs. Reed, 93. 
 
 Beckett vs. Midland Ry. Co., 64. 
 
 Beecher vs. Wetherby, 124, 126, 
 
 133, 134, 139- 
 Beidelman vs. Foulk, 56, 93. 
 Beissell vs. Scholl, 59, 67. 
 Beekman vs. Ry. Co., 357. 
 Belk vs. Megher, 219. 
 Belknap vs. Trimble, 154. 
 Bell vs. Cough, 54, 89. 
 Bell vs. Sausalito Land & Ferry 
 
 Co., 268. 
 Bell vs. Quebec, 64. 
 Benson vs. Connors, 39.
 
 TABLE OF CASES CITED 
 
 XV 
 
 (The references are to the sections.) 
 
 Benson vs. Morrow, 55. 
 
 Benjamin vs. Storr, 64. 
 
 Berry vs. Carle, 42, 54. 
 
 Berry vs. Snyder, 52, 54. 
 
 Bickell vs. Polk, 54. 
 
 Biddle Boggs vs. Merced Min. Co., 
 
 109, 260, 261, 262, 288. 
 Biglow vs. Battle, 91. 
 Bileu vs. Paisle}', 151. 
 Binney's Case, 42, 54. 
 Bird vs. Smith, 54. 
 Bissell vs. Foss, 302, 303. 
 Bissell vs. Grant, 267. 
 Bissell vs. Henshaw, 260. 
 Bissell vs. Southworth, 54. 
 Black vs. Bally mera Com., 48. 
 Blackburn vs. Somers, 294. 
 Blaisdell vs. Stevens, 323, 327. 
 Blake vs. Clark, 268. 
 Blanc vs. Klumpe, 333. 
 Blanchard (ex parte), 201. 
 Blanchard vs. Baker, 59, 63, 66, 
 
 67, 68, 69, 72, 73, 75, 173, 193. 
 Blanchard vs. Sprague, 196. 
 Blessing vs. Blair, 73. 
 Bliss vs. Johnson, 279, 350. 
 Bliss vs Kennedy, 66, 80, 173. 
 Bliss vs. Rice, 75. 
 Blood vs. Light, 133. 
 Blood vs. Nashua Ry. Co., 54. 
 Bloodgood vs. Mohawk Ry. Co., 
 
 94. 
 Bloom vs. West, 270. 
 Bloomfield vs. Johnson, 53, 86. 
 Blumleigh vs. Dawson, 75. 
 Boatwright vs. Bookman, 54. 
 Board of Directors Modesta Irr. 
 
 Dist. vs. Tregea, 368, 390, 393, 
 
 394- 
 Board of Directors Middle Kittitas 
 
 Irr. Dist. vs. Peterson, 389, 
 
 423- 
 Bolliver Mfg. Co. vs. Neponset 
 
 Mfg. Co., 75,92. 
 Bolton vs. Bensped, 78, 79. 
 
 Bolster vs. Cataline, 334. 
 Boman's Devosees vs. Latham, 59. 
 Bonds of Maderia Irr. District, Iti 
 
 re, 368, 389, 391, 392, 393. 
 Boom Co. vs. Patterson, 94. 
 Boorman vs. Sunnuchs, 82, 87. 
 Booth vs. Driscoll, 78. 
 Booth vs. Woodbury-, 94. 
 Boscawan vs. Canterbury, 54. 
 Boston vs. Lecraw, 64. 
 Boston vs. Richardson, 64. 
 Boston Water Power Co. vs. Gray, 
 
 91- 
 
 Boston Water Power Co. vs. Bos- 
 ton Railway Co., 94. 
 
 Bouldin vs. Massie, 143. 
 
 Bowen vs. Team, 297. 
 
 Bowers vs. Hill, 297. 
 
 Bowlsby vs. Speer, 39. 
 
 Bowman vs. Cudworth, 260. 
 
 Bowman vs. Wathen, 92. 
 
 Boyer vs. Swett, 201. 
 
 Boynton vs. Longley, 294, 295. 
 
 Brace vs. Yale, 54, 274, 288. 
 
 Bealy vs. Shaw, 59. 
 
 Bradley vs. Harkness, 259, 264. 301, 
 302, 303, 305, 306. 
 
 Bradford vs. Cressey, 54. 
 
 Branch vs. Doane, 75, 92. 
 
 Branch Turnpike Co. vs. Super- 
 visors of Yuba Co., 334. 
 
 Brastow vs. Rock port, 87. 
 
 Brewster vs. Striker, 288. 
 
 Bridges vs. Purcell, 93. 
 
 Bright Star, The, 42. 
 
 Bristoll vs. Carroll Co., 82.. 
 
 Bristow vs. Cormican, 53, 86. 
 
 Broadax vs. Baker. 46. 
 
 Broadbent vs. Ranisbotham, 39, 
 43. 143- 
 
 Broder vs. Natoma Water Co., 98, 
 iio. III, 113, 115, 140, 141, 148. 
 156, 173. 175. 185. 186, 188, 189, 
 198, 204, 207, 209, 219, 226, 235. 
 
 Bronson vs. Kukuk, 208.
 
 XVI 
 
 TABLE OF CASES CITED. 
 
 [The references are to the sections.) 
 
 Brown vs. Ashley, 286, 298, 329, 
 
 397- 
 Brown vs. Best, 56, 59, 294. 
 Brown vs. Bush, 59. 
 Brown vs. Chadbourne, 54. 
 Brown vs. Clements, 136, 260. 
 Brown vs. Evans, 260, 262. 
 Brown vs. Gugy, 64. 
 Brown vs. Huger, 208. 
 Brown vs. Illius, 48, 78. 
 Brown vs. Kennedy, 54, 90. 
 Brown vs. Mullin. 173, 175, 230, 246 
 
 334, 345- 
 Brown vs. Scofield, 41. 
 Brown vs. Smith, 167, 180, 182. 
 Brown vs. United States, 217. 
 Brubaker vs. Paul, 42. 
 Bruger vs. Butler, 268. 
 Brush vs. Ware, 136. 
 Bryan vs. Forsyth, 208. 
 Bryan vs. Kennett, 131. 
 Bryant vs. Whistler, 93. 
 Buccleuch vs. Cowan, 62. 
 Buccleuch vs. National Board of 
 
 Public Works, 64. 
 Bucki vs. Cone, 40. 
 Buddington vs. Bradley, 56, 59. 
 Buffalo Pipe Line Co. vs. N. Y. 
 
 Railway Co., 54. 
 Buffum vs. Harris, 39, 43, 45- 
 Bugh vs. Rominger, 565. 
 Bullard vs. Saratoga Mfg. Co., 75. 
 Bullock vs. Rouse, 139. 
 Bullock vs. Wilson, 54. 
 Bulstrode vs. Ilall, 51. 
 Burbank vs. Ellis, 140. 
 Burbank vs. W. Walker R. D. Co., 
 
 324- 
 
 Burlington Railway Co. vs. John- 
 son, 141, 209. 
 
 Burnett vs. Whiteside, 163, 246. 
 
 Burnham vs. Freeman, 224, 264, 
 270. 
 
 Burnham vs. Starkey, 141, 186, 209 
 
 Burroughs vs. Saterlee, 79. 
 
 Butte Canal Co. vs. Vaughn, 161, 
 
 163, 173, 179, 219, 227, 230, 246, 
 
 254, 255. 
 Butte T. M. Co. vs. Morgan, 154. 
 
 223, 225, 247, 248, 343- 
 Butz vs. Northern Pacific Railway 
 
 Co., 126. 
 Byrne vs. Crafts, 154. 155, 179' 232, 
 
 237- 
 
 c. 
 
 Cain vs. Young, 140. 
 
 California and Oregon L. Co. vs. 
 
 Munz, 138. 
 Calkins vs. Copely, 263. 
 Calvin vs. Burnett, 294. 
 Cambre vs. Cohn, 83. 
 Campbell vs. Bear River Co.. 244, 
 
 3U, 324- 
 Campbell vs. Smith, 193. 
 Campbell vs. Shivers, 260, 262, 
 
 301. 
 Campbell vs. West, 253. 
 Campbell vs. Wilson, 92. 
 Canal Appraisers vs. People, 38, 
 
 54, 193- • 
 Canal Commissioners vs. People, 
 
 38. 42, 52, 54, 87, 89. 
 Canal Trustees vs. Haven, 54. 
 Cannon vs. Hargadon. 43. 
 Carbrey vs. Willis, 79. 
 Carhart vs. Auburn Gas Light Co., 
 
 42. 
 Carli vs. Still Water Ry. Co., 64. 
 Carlisle vs. Cooper, 294. 
 Carpenter vs. Thurston, 260. 
 Carpentiers vs. Webstei, 201. 
 Carrol vs. Safforn, 208, 214. 
 Canson vs. Blazer, 54, 201. 
 Carson vs. Wood, 327. 
 Carter vs. Murcot, 89. 
 Carter vs. Thurston, 54. 
 Caruthers vs. Pemberton,.i35, 175, 
 
 230. 
 Carey vs. Daniels, 56, 59, 67, 76.
 
 TABLE OF CASES CITED. 
 
 xvu 
 
 (The references are to the sections.) 
 
 Carroll vs. Wood, 551. 
 Casey vs. Ingloes, 54. 
 Cash vs. Thornton, 556. 
 Castello vs, Landwehr, 41. 
 Caster vs. Tide Water Co., 94. 
 Castner vs. The Dr. Franklin, 55. 
 Catlin Canal Co. vs. Best, 315. 
 Cator vs. Lewishani Board of 
 
 Works, 250. 
 Cave vs. Crafts, 89, 148, 156, 256, 
 
 267, 268, 269, 294. 
 Cedar Rapids Railway Co. vs. 
 
 Courtwright, 137. 
 Central Irr. Dist. vs. De Lappa, 
 
 389, 390, 393. 
 Chaplain Ry. Co. vs. Valentine, 87. 
 Chandler vs. Ilowland, 76. 
 Chapman vs. Haskins, 54. 
 Chapman vs. Kimball, 54. 
 Chapman vs. Oshkosh, 64, 88. 
 Chapman vs. Palmer, 327. 
 Chapman vs. Thames Mfg. Co., 
 
 75- 
 Charnock vs. Rose, 173, 350. 
 Chase vs. Baker, 83. 
 Chase vs. Silverstone, 49, 78. 
 Chasemore vs. Richards, 39, 48, 
 
 49. 56, 58, 67, 70, 71, 78, 79, 80. 
 Chatfield vs. Wilson, 49, 66, 75. 
 Chauvert vs. Hill, 293, 296. 
 Chenandago Bridge Co. vs. Paige, 
 
 54- 
 Cherokee Nation vs. Georgia, 125, 
 
 126, 133. 
 Cherokee Tobacco, The, 133. 
 Chiatovich vs. Davis, 173, 230, 264. 
 Chidester Consolidated Ditch Co., 
 
 244, 314- 
 Chicago vs. Robbins, 146. 
 Chicago vs. McGinn, 40, 41, 54. 
 Chicago Railway Co. vs. Morrow, 
 
 39- 
 Chicago City Railway Co. vs. 
 
 People, 93. 
 Chicago Railway Co. vs. Stein, 64. 
 
 Chotard vs. Pope, 144, 219. 
 Churchill vs. Bauman, 326. 
 Citizens Bank vs. Nantucket 
 
 Steamboat Co., 316. 
 City of Fresno vs. Fresno Canal & 
 
 Irrigation Co., 333. 
 City of Mobile vs. Eslava, 136. 
 City of New Orleans vs. D' Armas, 
 
 125. 
 City of Springville vs. F'ulmer, 446. 
 Clapham vs. Mogle, 319. 
 Claremont vs. Carlton, 54, 90. 
 Clark vs. Brown, 133. 
 Clark vs. Campeu, 54. 
 Clark vs. Clark, 201. 
 Clark vs. Peckham, 64. 
 Clark vs. Smith, 127, 133, 134, 146. 
 Clark vs. Titus, 140. 
 Clark vs. Willet, 224, 225, 245, 253, 
 
 264. 
 Clement vs. Burns, 54, 87. 
 Clements vs. Warner, 143, 144. 
 Cleveland Railway Co. vs. Ball, 64. 
 Clinton vs. Englebrecht, 127, 
 Clough vs. Wing, 16, 42, 108, 173. 
 Clute vs. Fisher, 54, 87. 
 Clyne vs. Benicia Water Co., 269. 
 Cobb vs. Bennett, 41. 
 Cobb vs. Davenport, 46, 54, 87. 
 Cobb vs. Smith, 54. 
 Cockrell vs. McQuinn, 54. 
 Coffin vs. Left Hand Ditch Co., 99, 
 
 148, 154, 156, 173. 204, 205, 228, 
 
 233, 556, 558, 569. 571- 
 Coffman vs. Robbins, 56, 59, 273, 
 
 274, 278, 282. 
 Coffman vs. Griesemer, 39. 
 Cohens vs. Virginia, 145. 
 Cohn vs. Wausau Boom Co., 54. 
 Coker vs. Simpson, 326, 331. 
 Colburn vs. Richards, 67, 69, 68,73. 
 Colchester vs. Brooke, 41, 51, 53, 
 
 89. 
 Cole vs. Logan, 238. 239, 254, 258, 
 
 332.
 
 XVlll 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Cole vSilver Mining Co. vs. Vir- 
 ginia Mining Co., 48, 79. 
 
 Collins vs. Chartiers, 79. 
 
 Collins vs. Bendury, 54. 
 
 Collins vs. Slade, 91. 
 
 Colman vs. Chadwick, 49. 
 
 Colorado C. R. Co. vs. Allen, 557. 
 
 Colorado Land & Water Co. vs. 
 Rocky Ford C. R. L. &T. Co., 
 255. 284. 
 
 Columbia Mining Co. vs. Holter, 
 154, 157, 158, 159. 184, 248. 
 
 Colvin vs. Burnett, 92, 195, 256. 
 
 Combs vs. Agricultural Ditch Co., 
 150, 151, 152, 153. 164, 166, 167, 
 173, 228, 235, 237, 238, 266, 316, 
 
 317, 335. 337, 572. 
 Commegys vs. Vasse, 128. 
 Commonwealth vs. Alger, 54, 87, 
 
 89. 
 Commonwealth vs. Chapin, 40, 41, 
 
 54, 83, 84. 
 Commonwealth vs. Essex, 84. 
 Commonwealth vs. Tiffany, 87. 
 Commonwealth vs. Vincent, 38, 
 
 40, 54, 87- 
 Commissioners vs. Withers, 54. 
 Conant vs. Jones. 161, 164, 167, 
 
 239, 512. 
 Concord vs. Norton, 288. 
 Conger vs. Weaver, 99, 109, no, 
 
 158, 159. 173- 
 Conkling vs. Pacific Imp. Co., 
 
 253, 329- 
 Commissioners vs. Erie Railway 
 
 Co., 42. 
 Commissioners Canal Fund vs. 
 
 Kemphall, 54. 
 Commissioners vs. Reading Ry. 
 
 Co., 42. 
 Cook vs. Burlington, 64. 
 Cook vs. Hull, 67, 68, 73. 
 Cook vs. C. B. & Q. Ry. Co., 93. 
 Cook vs. McClure, 82. 
 Cook vs. Stearns, 91. 
 
 Coolidge vs. Curtis, 146. 
 Coolidge vs. Learned, 92. 
 Coonradt vs. Hill, 256, 268. 
 Cooper vs. Hamilton, 334. 
 Cooper vs. Roberts, 139. 
 Cooper vs. Smith, 54. 
 Courtright vs. C. R. & M. Co., 
 
 207. 
 Coovert vs. O'Connor. 42, 52, 54, 89. 
 Cornelius vs. Glenn, 54. 
 Cornelius vs. Kessel, 208. 
 Corning vs. Troy Iron Co., 58, 59, 
 
 63, 193, 321. 329- 
 Corning vs. Gould, 297. 
 Correa vs. Frietas, 154. 
 Coryell vs. Cain, 159, 162. 
 Coswin vs. Railway Co., 326. 
 Countess of Rutland vs. Bowles, 
 
 59, 80. 
 County of St. Clair vs. Lovington, 
 
 82. 
 Cotton vs. Poasett Mfg. Co., 294. 
 Courtwright vs. Bear River Co., 
 
 251, 333- 
 Covington vs. Becker, 135. 
 Covington vs. Senfert, 268. 
 Cowell vs. Colorado Springs, 208. 
 Cowles vs. Shaw, 334. 
 Cowell vs. Thayer, 92. 
 Cowles vs. Kidder, 75, 80, 173. 
 Cox vs. Clough, 256, 294, 295. 
 Cox vs. Garrahan, 138. 
 Cox vs. Mathews, 80, 81. 
 Cragin vs. Powell, 138, 140. 
 Craig vs. Radford, 155. 
 Crall vs. Board of Directors of 
 
 Poso Irr. Dist., 368, 390, 392, 
 
 393- 
 Crane vs. Randall, 135, 173, 252, 
 
 332, 333- 
 Crane vs. Windsor, 135, 173, 252, 
 
 332, 333- 
 Crandall vs. Woods, 67, 106, 162, 
 191, 256, 275, 280, 293, 295, 296, 
 329-
 
 TABLE OF CASES CITED. 
 
 XIX 
 
 (The references are to the sections.) 
 
 Crary vs. Campbell, 306 . 
 Creighton vs. Keweah Canal & Irr 
 
 Co., 108, 331, 350. 
 Creighton vs. Evans, 59. 
 Crest vs. Jack, 28S. 
 Crewson vs. Grand Trunk Ry. Co. 
 
 39- 
 Crill vs. Rome, 54. 
 Crisman vs. Heiderer, 244, 245, 557. 
 Crittenden vs. Field, 268. 
 Crocker vs. Bragg, 75. 
 Crocker vs. Covvper, 91. 
 Cronin vs. Gore, 288, 
 Crooker vs. Benton, 267. 
 Cross vs. DeValle, 155. 
 Cross vs. Lewis, 92. 
 Cross vs. Kitts, 285. 298, 341. 
 Crossley vs. Lightowler, 56, 294, 
 
 321, 329- 
 Cummings vs. Peters, 94. 
 Cunningham vs. Ashley, 136. 
 Currier vs. West, 42. 
 Curtis vs. Jackson, 63, 297. 
 Curtis vs. Kesler, 42. 
 Curtis vs. Le Grange H. W. Co., 
 
 262. 
 
 Cushman vs. Highland Ditch Co., 
 
 571- 
 
 D. 
 
 Dalrymple vs. Mead, 40, 54. 
 Dalton vs. Bowker, 162, 173, 223, 
 
 233. 264, 397. 
 Dalton vs. Rentaria, 260. 
 Danforth vs. Adams, 288. 
 Dan forth vs. Wear, 136. 
 Daniel Ball, The, 40. 
 Daniels vs. Landsdale, 184, 213, 
 
 2x9. 
 Daniels vs. North, 92. 
 Dark vs. Johnson, 93. 
 Darst vs. Rush, 244. 
 Darwin vs. Upton, 92. 
 Davenport vs. Lamb, 141. 
 Davenport vs. Thurpin, 260. 
 Davis vs. Brigham, 92. 
 
 Davis vs. Buttler, 264. 
 
 Davis vs. Fuller, 56, 173, 193. 
 
 Davis vs. Gale, 150, 151, 154, 157, 
 159, 163, 164, 173, 175, 179, 183, 
 225, 230, 231, 233, 248, 253, 255, 
 256, 269, 260, 264. 
 
 Davis vs. Getchell, 56, 59, 73. 
 
 Davis vs. Jenkins, 41. 
 
 Davis vs. Mason, 146. 
 
 Davis vs. Mayor of New York, 
 42. 
 
 Davis vs. Police Jury of Concordia, 
 128. 
 
 Davis vs. Wannamaker, 557. 
 
 Davis vs. Winslow, 41. 
 
 Davison vs. Hutchinson, 61. 
 
 Dawson vs. James, 54. 
 
 Day vs. Da^^ 54. 
 
 Day vs. Railway Co., 54. 
 
 Day vs. Waldron, 297. 
 
 Dean vs. Davis, 389. 
 
 Decker vs. Howell, 301, 303, 306. 
 
 Decker vs. Perry, 373. 
 
 Dedrick vs. Wood, 42. 
 
 Deerfield vs. Arms, 82. 
 
 Deffebach vs. Hawkes, 140. 
 
 Delaney vs. Boston, 42, 54. 
 
 Delaphine vs. Chicago Ry. Co., 
 
 54, 57, 64, 87, 88. 
 Delaware Canal Co. vs. Terry, 75. 
 Delaware Ry. Co. vs. Stump, 41. 
 Delhi vs. Youmans, 49, 78. 
 Delossus vs. United States, 131. 
 DeNechochea vs. Curtis, 156, 229. 
 Denver City Irrigation Co. vs. 
 
 Middaugh, 572. 
 Denver U. O. R. Co. vs. Lamborn, 
 
 5.57. 
 DeVilemonte's Case, 130. 
 Devonshire vs. Pattinson, 38, 52, 
 
 53. 86. 
 DeWitt vs. Harvey, 265. 
 Dexter vs. Frey Aqueduct Co., 78. 
 Dey vs. Stetson, 94. 
 Dick vs. Bird, 150, 156, 294, 295.
 
 XX 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Dick vs. Caldwell, 135, 150, 151, 
 
 294, 295. 
 Dickens vs. Mahana, 139. 
 Dickinson vs. Grand Junction, etc. 
 
 Co., 48, 49. 56, 59. 78, 79- 
 Dickinson vs. Worcester, 39, 45. 
 Diedrick vs. North Western Ry. 
 
 Co., 41, 54. 64, 87, 88. 
 Dilling vs. Murry, 56. 
 Dodge vs. County Commissioners, 
 
 64. 
 Dodge vs. Harden, 139, 163, 253, 
 
 256, 259, 264, 294. 
 Doe vs. York, 89. 
 Doddridge vs Thompson, 143. 
 Don vs. Wright, 90. 
 
 Donnell vs. Humphreys, 267, 269, 
 Dorlar vs Cress, 288. 
 Dority vs. Dunning, 91, 297. 
 Dorr vs. Hammond, 154, 157, 233, 
 
 257, 294, 564, 565- 
 Dougherty vs. Bunting, 42. 
 Dougherty vs. Creary, 304. 
 Dougherty vs. Haggin, 161, 175. 
 Doughty vs. Conover, 84. 
 Downing vs. More, 556, 557. 
 Doyle vs. San Diego L. & T. Co., 
 
 264, 285. 
 Drake vs. Earhart, 226, 232, 235, 
 
 240, 512. 
 Dred Scott vs. Sanford, 126. 
 Drew vs. Hicks, 183, 293, 333. 
 Drexel vs. Berney, 288. 
 Dubuque Ry. Co. vs. Des Moines 
 
 Ry. Co., 133. 
 Dubuque Ry. Co. vs. Litchfield, 
 
 138. 
 Dumph)' vs. Kleinschmidt, 145. 
 Dumout vs. Kellogg, 67, 108. 
 Durant vs. Martin, 218. 
 Durgin vs. Leighton, 92. 
 Duryea vs. Burt, 301, 302, 303, 304, 
 
 305, 306. 
 Dutchess of Kingston's Case, 288. 
 Dutton vs. Strong, 55, 64. 
 
 Dwight Printing Co. vs. Boston, 
 
 250. 
 Dwyer vs. Rich, 53. 
 Dyer vs: Depui, 92, 297. 
 Dyke vs. Caldwell, 535. 
 Dyson vs. Bradshaw, 264. 
 
 E. 
 
 Earhart vs. Boaro, 168. 
 
 Earl vs. Hart, 39, 45. 
 
 Eaton vs. Larimer & W. Res. Co., 
 
 572. 
 Eddy vs. Simpson, 39, 59, 104, 
 
 163, 254, 259, 275, 281. 
 Edgar vs. Stevenson, 173, 177, 180, 
 
 282. 
 Edwards vs. Agle, 87. 
 Elder vs. Burrus, 54. 
 Eldridge vs. Knott, 109. 
 Ellis vs. Pomeroy Imp. Co., 213^ 
 
 219, 228, 417. 
 Ellis vs. Carey, 42, 54, 
 Ellis vs. Tone, 67, 78, 163, 273, 
 
 275. 350. 
 Ellison vs. Jackson Water Co., 
 
 163. 
 Elliot vs. Fitchburg Ry. Co., 63, 
 
 66, 67, 73, 76, 108, 193. 
 Elliot vs. Whitmore, 160, 255, 288, 
 Elmendorf vs. Taylor, 145. 
 Elms vs. Los Angeles, 150. 
 Elmslee vs. Young, 144. 
 Emans vs. Turnbull, 82. 
 Embrey vs. Owens, 56, 61, 62, 67, 
 
 70, 76, 193, 250, 264. 
 Embury vs. Connor, 94. 
 Emery vs. Lowell, 39. 
 Emery vs. Raleigh Ry. Co., 92. 
 Empire M. C. Co. vs. County 
 
 Treasurer, 556. 
 Emporia vs. Soden, 49. 
 Enfield Bridge Co., vs. Hartford 
 
 Ry. Co., 54- 
 Ensminger vs. People, 54, 79- 
 Escanaba Co. vs. Chicago, 40.
 
 TABLE OF CASES CITED. 
 
 XXI 
 
 (The references are 
 
 Eulrich vs. Richter, 39, 45. j 
 
 Evans vs. Cook, 201. 
 
 Evans vs. Ross, 256, 294. | 
 
 Evans vs. Merriweather,' 56, 59, 
 65, 66, 68; 69, 76, 80, 173. 
 
 Ewart vs. Belfast Poor Law Guar- 
 dians, 79. 
 
 Ewing vs. Colquhouii, 53. 
 
 F. 
 
 Fabian vs. Collins, 135, 154, 175, 
 
 233, 259, 260, 264, 332. 
 Fagan vs. Armistead, 54. 
 Fairfax's Devosee vs. Hunters 
 
 Lessee, 155. 
 Farley vs. Spring Valley M. & Ir. 
 
 Co., 106, 210, 211, 212, 213, 
 
 214, 219. 
 Farmers High Line Canal Co. vs. 
 
 North, 167, 173, 223, 227, 228, 
 
 311- 
 Farmers High Line Canal Co. vs. 
 Southworth, 152, 153, 164, 235, 
 
 556, 559. 564. 
 Farmers High Line Co. vs. Ukiah 
 
 W. Co., 223, 267, 269. 
 Farmers H. C. R. Co. vs. White, 
 
 562. 
 Farmers L D. Co. vs. Agricultural 
 
 D. Co. 572. 
 Farnsworth vs. Minn. Ry. Co., 
 
 127. 
 Farrar vs. Cooper, 263. 
 Farrell vs. Richards, 73, 76, 511. 
 Faull vs. Cooke, 286, 293. 
 Fay vs. Salem Aqueduct Co., 87. 
 Felix vs. Los Angeles, 150, 
 Ferguson vs. Miller, 265. 
 Felger vs. Robinson, 40, 41. 
 Fellows vs. Blacksmith, 126. 
 Fentiman vs. Smith, 93. 
 Ferrea vs. Knipe, 59, 73, 188, 273, 
 
 275. 280, 330. 
 Ferry vs. Street, 139. 
 Finley vs. Simpson, 319. 
 Finlonson vs. Porter, 91. 
 
 to the sections.) 
 
 Fisher vs. Haldelan, 54, 146. 
 
 Fitzell vs. Leaky, 269, 303. 
 
 Fitzgerald vs. Urton, 109. 
 
 Fitzwalter's Case, 51. 
 
 Fitz vs. Hobson, 64. 
 
 Flagg vs. Worcester, 39, 45. 
 
 Flagstaff Silver Mining Co. vs. 
 
 Tarbet, 89. 
 Flannigan vs. Philadelphia, 4i,54> 
 
 98. 
 Flat River, etc., Co. vs. Kelly, 28S. 
 Flege vs. Carej', 260. 
 Flemming vs. Davis, 68, 73, 527. 
 Flemming vs. Hull, 94. 
 Fletcher vs. Peck, 127, 133, 207. 
 Fletcher vs. Phelps, 38, 54, 87. 
 Fletcher vs. Thunder Bay Boom 
 
 Co., 54- 
 Flickenger vs. Shaw, 244. 
 Flint P. & M. Ry. Co. vs. Gordon, 
 
 219. 
 Flora vs. Carbean, 92. 
 Floyd vs. Boulder Flume & M. 
 
 Co., 551. 
 Foot vs. New Haven Co., 93. 
 Forbes vs. Gracey, 102, 113, 115, 
 
 138, 141, 187, 207, 209. 
 Foreman vs. Boyle, 323, 326, 327. 
 Foster vs. Neilson, 125, 126, 12S. 
 Forsyth vs. Smalle, 87. 
 Foster vs. Spring Creek Co., 150. 
 Foster vs. Park Comm., 94. 
 Ft. Leavenworth, etc.. Railway 
 
 Co. vs. Low, 127. 
 Ft. Morgan Land Co. vs. South 
 
 Platte Ditch Co., 152, 164, 167, 
 
 173- 
 Ft. Plain Bridge Co. vs. Smith, 54. 
 Fox River Flour Co. vs. Kelly, 287. 
 Fraler vs. Seers Union Water Co., 
 
 324- 
 Fra/.ier vs. Brown, 79. 
 Frank vs. Hicks, 265, 266, 269, 270, 
 
 488. 
 Franklin vs. I'isk, 43. 
 Frankum vs. l'"alni()Uth, 59.
 
 XXll 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Freary vs. Cook, 83. 
 Frederick vs. Dickey, 256. 
 Freeman vs. Wicks, 287, 297. 
 Fremont vs. United States, 130. 
 Fresno Canal Co. vs. Dunbar, 267. 
 French vs. Bankhead, 54. 
 French vs. Baintree N. Co., 264. 
 French vs. Fyan, 138. 
 French Hoek Comni. vs. Hugo, 
 
 297. 
 French vs. Spencer, 219. 
 Frey vs. Lowden, 301, 337, 345. 
 Frink vs. Branch, 268. 
 Frisbee vs. Whitney, 124, 142, 212, 
 
 213, 219. 
 Frost vs. Saratoga, etc., Co., 260. 
 Fuller vs. Mining Co., 265. 
 Fulmer vs. Williams, 54. 
 Fulton vs. Frandolig, 529. 
 Fulton vs. Swan River, etc., Co., 
 
 154, 248. 
 Fussell vs. Gregg, 143. 
 
 G. 
 
 Gallagher vs. Basey, 322, 332. 
 
 Gaines vs. Thompson, 138. 
 
 Gaines vs. Nickolson, 139. 
 
 Gale vs. Tuolumne W. Co., 173 
 225. 
 
 Gallagher vs. Montecito Valley 
 Water Co. 233, 248, 293. 
 
 Galveston vs. Menard, 89. 
 
 Gannon vs. Hargedon, 39, 45. 
 
 Gannocchio vs. Amador C. & M. 
 Co., 267. 
 
 Gardner vs. Newberg, 56, 59, 357. 
 
 Gardner vs. Trustees, 193. 
 
 Garwood vs. New York Central 
 Railway Co., 108. 
 
 Gates vs. Northern Pacific Rail- 
 way Co., 41. 
 
 Gause vs. Baker, 83. 
 
 Gaved vs. Martyn, 297. 
 
 Gavit's Administrators vs. Cham- 
 bers, 39, 54, 90. 
 
 Gearson vs. Barrack, 512. 
 
 Geddis vs. Parish, 39, 45, 156, 213, 
 
 219, 228, 269, 417. 
 Georgetown vs. Alexander Canal 
 
 Co., 42. 
 Gerris vs. Clow, 82. 
 Gerrish vs. Brown, 41. 
 Gerrish vs. New Market Mfg. Co., 
 
 61, 75, 76, 193. 
 Gennessee Chief vs. Fitzhugh, 40. 
 Gentile vs. State, 54. 
 Gibbs vs. Williams, 39, 43, 45. 
 Gibson vs. Brockway, 268. 
 Gibson vs. Puchta, 150. 
 Gibson vs. Chouteau, 134, 147, 194, 
 
 213, 214, 219. 
 Gifford vs. Winnipesseogee Lake 
 
 Co., 92. 
 Gillett vs. Johnson, 45, 56, 59, 73, 
 
 93- 
 Gilliam vs. Bird, 54. 
 Gilman vs. Tilton, 80, 173. 
 Gillham vs. Madison Ry. Co., 39. 
 Gimmy vs. Culverson, 142, 218. 
 Gladfelter vs. Walker, 250. 
 Gliddenvs. U. P. Ry. Co., 189. 
 Gluckauf vs. Reed, 264. 
 Golden Canal Co. vs. Bright, 173, 
 
 317, 556, 561, 563, 565- 
 Gold Hill Mining Co. vs. Ish, 185. 
 Goodsell vs. Lawson, 54. 
 Goodwin vs. Thompson, 54. 
 Goodwin vs Gilbert, 319. 
 Goodtitle vs. Baldwin, 109. 
 Gormley vs. Uthe, 138, 143. 
 Gouverneur vs. National Ice Co., 
 
 87. 
 Goff vs. Bell, 54. 
 Gould vs. Boston Duck Co., 59, 67, 
 
 80. 
 Gould vs. James, 83. 
 Gould vs. Hudson Ry. Co., 64. 
 Gould vs. Stafford, 275, 277, 280, 
 
 284, 286. 
 Graff vs. Baltimore, 94. 
 Graham vs. Hastings Ry. Co., 217
 
 TABLE OF CASES CITED. 
 
 XXlll 
 
 (The references are to the sections.) 
 
 Grand Rapids Booming Co. vs. 
 Jarvis, 54. 
 
 Grangei" vs. Aver}-, 54. 
 
 Grant vs. Davenport, 54. 
 
 Grant vs. Kugler, 61. 
 
 Graves vs. Sholl, 75. 
 
 Gray vs. Rand, 9, 12. 
 
 Gray vs. Jones, 143. 
 
 Greelj- Irr. Co. vs. House, 559, 572. 
 
 Greer vs. Heiser, 248. 
 
 Grear vs. Tripp, 295. 
 
 Greatrex vs. Hayward, 287, 297. 
 
 Gregory vs. Nelson, 225, 245. 
 
 Greeley vs. Maine Central Rail- 
 way Co., 39. 
 
 Green vs. Carrotta, 45, 287, 297. 
 
 Green vs. Heiser, 254. 
 
 Green vs. Prettyman, 260. 
 
 Greencastle vs. Hazelett, 39. 
 
 Greenleaf vs. Frances, 78. 
 
 Greenleaf vs. Kilton, 54. 
 
 Greenslade vs. Holliday, 70. 
 
 Green's Appeal, 263. 
 
 Greggory vs. Nelson, 245. 
 
 Grisby vs. Clear Lake W. Co., 256, 
 294. 295, 333. 
 
 Grinuell vs. Chicago, etc., Rail- 
 way Co., 137, 190. 
 
 H. 
 
 Hadden vs. Shutz, 268. 
 
 Hadgdon vs. Southern Pacific Ry. 
 
 ^o-. 357- 
 Hadley vs. Hadley Mfg. Co., 59. 
 Hagan vs. Campbell, 54. 
 Hagar vs. Rec. Dist., 94, 132, 135. 
 Haight vs. Keokuk, 41, 54. 
 Haldeman vs. Bruckhart, 48. 
 Hale vs. McLea, 48, 59, 275, 350. 
 Hall vs. Chaffee, 93. 
 Hall vs. Russell, 137. 
 Hall vs. Swift, 70. 
 Halsey vs. McConnick, 82. 
 Ham vs. Missouri, 138. 
 Hambleton vs. Duhain, 139. 
 Hamilton vs. Donegal, 83. 
 
 Hammond vs. Hall, 47, 78. 
 Hammond vs. Rose, 156, 173, 219, 
 
 228, 556, 573. 
 Hammond vs. Zehmer, 256, 294. 
 Handly vs. Anthony, 82. 
 Hanford vs. St. Paul Ry. Co., 58. 
 Hanibal, etc. Ry. Co. vs. Smith, 
 
 137, 138. 
 Hanson vs. McCue, 45, 48, 49, 298, 
 
 350. 
 Hapgood vs. Brown, 268. 
 Hardin vs. Jordan, 38, 54, 87. 
 Hargreave vs. Diddams, 53. 
 Harold vs. Jones, 42. 
 Harris vs. Harrison, 277, 280, 336, 
 
 250. 
 
 Harris vs. Shontz, 332. 
 
 Harris vs. Thompson, 94. 
 
 Harris vs. Merritt, 295. 
 
 Hart vs. Hill, 54, 83. 
 
 Hart vs. Rogers, 54. 
 
 Hart vs. Plum, 264. 
 
 Hart vs. Vose, 92. 
 
 Harvey vs. Chilton, 167, 182. 
 
 Hartzall vs. Sill, 80, 173. 
 
 Haskell vs. New Bedford, 250. 
 
 Haskins vs. Haskins, 67, 
 
 Hastings Ry. Co. vs. United States 
 216. 
 
 Hastings Ry. Co. vs. Whitehall, 
 216. 
 
 Hastings & Dakota Ry. Co. vs. 
 
 Whitney, 219. 
 Hatch vs. D wight, 52, 54, 81. 
 Hawenstein vs. Lynham, 126. 
 Hawksville vs. Lander, 54. 
 Hay vs. Sterrett, 52, 59, 6r, 173. 
 Hayden vs. Long, 8, 244, 278, 282. 
 Hayes vs. Waldron, 76, 250, 274. 
 Hay's Executors vs. Bowman, 90. 
 Hayward vs. Mason, 68. 
 Haywood vs. Kd wards, 61. 
 Healy vs. Woodruff, 283, 350. 
 Heath vs. Ross, 219. 
 Heath vs. Williams, 59, 66, 73, 80, 
 
 81, 193.
 
 XXIV 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Hedrick vs. Hughes, 139. | 
 
 Heinlen vs. Fresno C. & Ir. Co., j 
 
 328, 331. 350. j 
 
 Heineman vs. Blake, 266. 
 Heilbron vs. Fowler's Switch 
 
 Canal Co., 284, 329, 330, 331, ' 
 
 350. 
 Heilbron vs. King's River, etc. 
 
 Co., 296. 
 Heilbron vs. Last Chance W. Co., 
 
 284, 295. 
 Heintzen vs. Binniger, 256. 
 Henderson vs. Nichols, 264, 302, 
 
 303- 
 Hendrick vs. Cook, 54, 75. 
 Hendrick vs. Hughes, 138. 
 Hendricks vs. Johnson, 59. 
 Hepburn vs. Ellzey, i45- 
 Hesperia Land & W. Co. vs. 
 
 Rogers, 157, 178, 254. 
 Hess vs. Winder, 157. 
 Hewitt vs. Story, 254, 302. 
 Hewlins vs. Shippan, 91, 93. 
 Heydenfeldt vs. Daney G. M. Co., 
 
 124. 
 Heyneman vs. Blake, 223. 
 Hicks vs. Bel, no. 
 Hickok vs. Hine, 54. 
 Higgins vs. Barker, 154, 173, 175, 
 
 230. 
 Hill vs. King, 99, 173. 181. 250, 
 
 330- 
 Hill vs. Leonardman, 108, 228, 229. 
 Hill vs. National Bank, 268. 
 Hill vs. Newman, 59, 105, 156, 173, 
 
 223, 224, 264. 
 Hill vs. Smith, 106, 154, 164, 173, 
 
 175, 181, 223, 225, 233, 249, 250, 
 
 251. 253- 
 Hillman vs. Hardwick, 173, 230, 
 
 242, 512. 
 Hillman vs. Newington, 327. 
 Himes vs. Johnson, io5. 148, 156, 
 
 173. 225. 
 Hinde vs. Vattier, 146. 
 
 Hindman vs. Rizor, 235, 236, 238, 
 
 255, 264. 
 Hobart vs. Ford, 89, 135, 148, 156, 
 
 245- 
 Robert vs. Wicks, 156, 248. 
 Hodges vs. Williams, 40, 41, 46. 
 Hoffman vs. Stone, 163, 173, 246, 
 
 341- 
 Hoffman vs. Tuolumne Water Co., 
 
 244, 324. 
 Hogg vs. Beerman, 38. 
 Hoke vs. Purdue, 389. 
 Holbert vs. Edens, 54. 
 Holcraft vs. Heel, 52. 
 Holden vs. Joy, 125, 193. 
 Holden vs. Lake Co., 76. 
 Holden vs. Robinson Mfg. Co., 54. 
 Holford vs. Bailey, 38. 
 Holman vs. Pleasant Grove, 446. 
 Holsman vs. Boiling Springs 
 Bleaching Co., 62, 250, 321, 329 
 
 Holton vs. Milwaukee, 64. 
 
 Holme vs. Shreve, 75. 
 
 Holmes vs. Jennison, 125, 193. 
 
 Holyoke Water Power Co.; vs. 
 Lyman, 52, 84. 
 
 Home vs. Richards, 54.. 
 
 Honsee vs. Hammond, 250. 
 
 Hoofnagle vs. Anderson, 136. 
 
 Hooker vs. Cummings, 54, 83. 
 
 Hopkins vs. Butte & M. Commer- 
 cial Co., 324. 
 
 Hopkins Academy vs. Dickinson, 
 54, 82. 
 
 Houghton vs. Chicago Ry. Co., 39, 
 
 54- 
 Houck vs. Yates, 54- 
 Howard vs Ingersol, 39, 43> 5i- 
 Howell vs. King, 91. 
 Howard vs. Mason, 72. 
 Howell vs. McCoy, 61, 62, 250. 
 Howell vs. Slauson, 139. 
 Howard vs. Wright, 80. 
 Howe Scale Co. vs. Perry, 56. 
 Hoyt vs. Hudson, 39, 45-
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 (The references are to the sections.) 
 
 Hubbard vs. Bell, 54. 
 
 Huddleson vs. West Belleview, 
 
 28S. 
 Hudson vs. Doyle, 333. 
 Huff vs. Nickerson, 319. 
 Huff vs. Doyle, 131. 
 Hughes vs. Providence Ry. Co., 
 
 154- 
 Hughes vs. United States, 214. 
 Hulsman vs. Todd, 323, 326, 327. 
 Hunt vs. Plum, 224. 
 Hurd vs. Curtis, 297. 
 Hussy vs. Smith, 140. 
 Hustado vs. California, 99. 
 Huston vs. B3-bee, 293, 295, 296. 
 Hutchinson vs. Colman, 51. 
 Hutton vs. Frisbee, 212, 219. 
 
 I. 
 
 Illinois vs. Illinois Central Ry. 
 
 Co., 54. 
 Imperial, The, 41. 
 Inge vs. Murphy, 98. 
 Ingraham vs. Chicago Ry. Co., 64. 
 Ingraham vs. Hutchinson, 59, 73, 
 
 192. 
 Ingraham vs. Threadgill, 54. 
 Ingraham vs. Wilkinson, 54, 82. 
 Ingram vs. Police Jury, 40, 42. 
 Irvine vs. Irvine, 208. 
 Irvine vs. Marshall, 131, 134, 146, 
 
 147, 193, 194- 
 Irwin vs. Brown, 54. 
 Irwin vs. Philips, 99, 106, no, 173, 
 
 219. 
 Irwine vs. Strait, 161, 168, 169, 
 
 184, 255. 
 Ison vs. Nelson, 258. 
 Ivanhoe vs. Keystone, 139. 
 Iviniey vs. Stacker, 287, 297. 
 
 J. 
 
 Jackman vs. .\rlington Mills, 61. 
 Jackson vs. Allen, 565. 
 Jackson vs. Bard, 219. 
 Jackson vs. Bull, 219. 
 
 Jackson vs. Clark, 143. 
 
 Jackson vs. Chew, 125. 
 
 Jackson vs. Halsted,54, 90, 133. 
 
 Jackson vs. Lewis, 54. 
 
 Jacobs vs. Lorenz, 194, 325. 
 
 Jackson vs. Trulinger, 268. 
 
 Jakeway vs. Barrett, 38, 87. 
 
 James vs. Adams, 89. 
 
 James vs. Goodenough, 173. 
 
 James vs. Williams, 173. 
 
 Jamison vs. Pettibone, 54. 
 
 Jattunn vs. O'Brien, 254. 
 
 Jefferies vs. East Omaha Land Co., 
 82. 
 
 Jennings, ex parte, 52, 54, 193. 
 
 Jennison vs. Kirk, 89, 98, 102, 113, 
 114, 115, 141, 150, 173, 185, 187, 
 197, 198, 204, 207, 226, 235, 240, 
 
 332, 453- 
 Jerret vs. Mahan, 326, 332. 
 Johns vs. Stevens, 56, 294. 
 Johnson vs. Ballou, 219. 
 Johnson vs. Hide, 297. 
 Johnson vs. Jones, 58. 
 Johnson vs. Jordan, 59. 
 Johnson vs. Knott, 41, 55. 
 Johnson vs. Towley, 142, 143. 
 Johnson vs. M'Intosh, 127, 133, 
 
 134- 
 Jones vs. Adams, 76, loS, 148, 156, 
 
 173, 198, 201, 205, 227, 235, 274, 
 
 412. 
 Jones vs. Clark, 305, 306. 
 Jones vs. Janney, 54. 
 Jones vs. Jackson, 159, 176. 
 Jones vs. Johnson, 58, 82. 
 Jones vs. Lee, 54. 
 Jones vs. Parsons, 301, 302. 
 Jones vs. Pettibone, 91. 
 Jones vs. Soulard, 52, 55, 82. 
 Jones vs. Van Zant, 127. 
 Jones vs. Waterlot Co., 54. 
 Jones vs. Wabash Ry. Co., 45. 
 Jonesville vs. Carpenter, 54. 
 Jourdan vs. Barrett, 134, 147, 194- 
 Judkins vs. I^lliott, 207.
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Junkens vs. Bergen, 154, 173, 175, 
 
 230, 243, 245, 343. 
 Justices vs. Crosby, 334. 
 
 K. 
 
 Kahn vs. Central Smelting Co., 
 
 303- 
 Kansas City Ry. Co., vs. Attorney 
 
 General, 137. 
 Kansas Pacific Ry. Co. vs. Dun- 
 
 meyer, 137, 144, 209. 
 Kansas Pacific Ry. Co. vs. Atchi- 
 son, etc. Ry. Co., 141, 217. 
 Kaler vs. Campbell, 173, 207, 282, 
 
 50S. 
 Kates vs. Waddington, 54. 
 Kayden vs. Long, 173. 
 Keeney vs. Carillo, 43, 160, 161, 
 
 163, 139, 173, 184, 255, 322. 
 Keene}' Mfg. Co. vs. Union Mfg. 
 
 Co., 59, 80, 173. 
 Kelly vs. Dunning, 45. 
 Kelly vs. Lett, 61. 
 Kelly vs. Natonia Water Co., 159, 
 
 160, 161, 162, 167, 168, 173, 175, 
 
 184, 210, 281. 
 Kelly vs. Taylor, 260. 
 Kendall vs. United States, 145. 
 Kennedy vs. Scovil, 91. 
 Kent vs. Waite, 92. 
 Kentuckv Lumber Co. vs. Green, 
 
 54- 
 Kepp vs. Wiggett, 263. 
 Key vs. Jennings, 143. 
 Keyser vs. Covell, 92. 
 Kidd vs. Laird, 59, 106, 154, 162, 
 
 173, 223, 225, 231, 233, 246, 
 
 247, 249, 264, 265, 275, 2S1, 
 
 343 • 
 Kimball vs. Gearhart, 150, 157, 
 
 158, 159, 160, 168, 184, 225, 
 
 255> 265, 306, 346. 
 Kimball vs. Kenosha, 54. 
 Kimball vs. Scarff, 54. 
 Kimmler vs. St. Louis, 288. 
 Kinney vs. Farnsworth, 260. 
 
 King vs. Edwards, 159, 160, 16 r, 
 
 168, 184. 
 King vs. King, 52, 54. 
 King vs. Lord Yardborough, 82. 
 King vs. Montigne, 53. 
 King vs. Smith, 38. 
 King vs. Tiffany, 56, 59, 193. 
 Kingman vs. Sparrow, 38, 54. 
 Kirk vs. Bartholemew, 232, 235, 
 
 237, 238, 512. 
 Kirman vs. Hunnewill, 253, 255. 
 Kissell vs. St. Louis Pub. Schools, , 
 
 139- 
 Knight vs. Nelder, 54. 
 Kuowles vs. Clear Creek P. R. & 
 
 M. Co., 572 
 Knox vs. Chaloner, 54. 
 Kraut vs. Crawford, 54, 55. 
 Cucheman vs. C. C. & B. Ry. Co., 
 
 64. 
 
 L. 
 
 Ladd vs. Osborn, 87. 
 
 La Joy vs. Primm, 288. 
 
 Lake Pleasanton Water Co. vs. 
 
 Contra Costa, 357. 
 Lake vs. Tolles, 332, 397. 
 Lakeside Ditch Co. vs. Crane, 223, 
 
 256, 295. 
 Lamb vs. Davenport, 141, 209, 218. 
 Lamb vs. Ricketts, 54. 
 Lamm vs. Chicago Ry. Co., 140. 
 Lamme vs. Bush, 55, 140. 
 Lammers vs. Nissen, 58. 
 Landsdale vs. Daniels, 89, 184, 213, 
 
 215- 
 
 Lane vs. Miller, 93. 
 
 Langdean vs. Howes, 129. 
 
 La Plaisance Bay Harbor Co. vs. 
 Monroe, 54. 
 
 Larimer County Res. Co. vs. Peo- 
 ple, 108, 175, 207, 556, 558. 
 
 La Roche vs. Jones, 126. 
 
 Last Chance M. Co. vs. Bunker 
 Hill S. M. Co., 230, 234, 255, 
 256, 293, 295, 296.
 
 TABLE OK CASES OITHD. 
 
 xxvu 
 
 (The references are to the sections. 
 
 Lattimer vs. Potert, 126. 
 
 Lawrence vs. Brown, 288. 
 
 Lawton vs. Cotner, 40. 
 
 Lawton vs. Ward, 91. 
 
 Learned vs. Tan^enian, 69, 73, 273, 
 
 275. 328, 350. 
 Leavenworth vs. United vStates, 
 
 124, 133. 137- 
 Le Barron vs. Le Barron, 201. 
 Lechler vs. Chapin, 140. 
 Ledu vs. Jim Yet Wa, 257, 294, 
 
 345- 
 Ledj-ard vs. Ten Kyck, 46. 87, 238. 
 Lee Doon vs. Tesh, 155. 
 Leggett vs. Kerton, 268. 
 Lehi Irr. Co. vs. Moyle, 150, 173, 
 
 207, 231, 262, 451. 
 Leigh vs. Independent Ditch Co., 
 
 150. I73vi9i- 
 
 Lewen vs. Smith, 54. 
 
 Lewis vs. Keeling, 41, 54. 
 
 Lewis vs. Stein, 62, 250. 
 
 Lick vs. Madden, 223. 
 
 Lind vs. New Bedford, 75. 
 
 Lindsey vs. Hawes, 136, 208, 
 
 Lincoln vs. Davis, 54. 
 
 Lincoln vs. Wilder, 54. 
 
 Lindsley vs. Coates, 201. 
 
 Lindsay Irrigation Co. vs. Wil- 
 liams, et al, 357. 
 
 Lindsey vs. Miller, 136. 
 
 Lingwood vs. Stonemarkct Co., 
 250. 
 
 Linthicum vs. Coan, 82. 
 
 Liskeard Union vs.Liskeanl Water 
 Co., 94. 
 
 Litchfield vs. Richards, 138. 
 
 Litchfield vs. Webster Co., 137. 
 
 Little vSchuylkill Navigation Co. 
 vs. Richards, 327. 
 
 Livett vs. Wilson, 92. 
 
 Livingston vs. Ten Broeck, 91. 
 
 Lobdell vs. Hall, 135, 155, 264. 
 
 Lobdel vs. Simpson, 106, 154, 173, 
 175, 179. 180, 225, 230, 253. 
 
 Lockhart vs. Ogden, 225. 
 
 Lodiga vs. Roland, 136. 
 
 Lombard vs. Sterns, 94. 
 
 Longbars vs. Blake, 145. 
 
 Lord vs. Comni. of Sidney, 58. 
 
 Lord Fitzwalter's Case, 89. 
 
 Lorenz vs. Jacobs, 94, 301, 337. 
 
 Lorman vs. Benson, 54, 64, 98, 201. 
 
 Los Angeles vs. Baldwin, 188,247, 
 256, 292, 293. 
 
 Loud Gold Mining Co. vs. Blake, 
 28S. 
 
 Louisville Bridge Co. vs. Louis- 
 ville, 54. 
 
 Louisville vs. United States Bank, 
 
 54- 
 Lovington vs. Countv of St. Clair, 
 
 83. 
 Love vs. Sharitzer, 260. 
 Lowe vs. Shaffer, 173, 179, 273, 
 
 264, 283. 
 Lowe vs. Hutchins, 219 
 Lowe vs. Lambeth Water Works 
 
 Co., 66. 
 Lower King's R. D. Co. vs. Lower 
 
 King's R. F. Co., 173, 224, 247, 
 
 249. 253. 259, 264. 
 Lowden vs. Prey, 263. 
 Lowell vs. Boston, 94. 
 Lucas vs. Beebe, 263. 
 Luckhart vs. Ogden, 160. 
 Lunt vs. Holland, 52, 89. 
 Luther vs. Winnisiuimet Co., 39, 
 
 45- 
 Luther vs. Borden, 126. 
 Luttrel's Case, 91. 
 Lux vs. Ilaggin, 15. 41, 45, 59, 
 
 65. 73, 75. 81, 108, 109, III, 
 
 116, 132, 194,201, 203,204,207, 
 
 208, 214, 218, 223, 260, 262, 273, 
 
 274, 275, 276, 280, 2S4, 288, 290, 
 
 292, 295, 329- 330, 350, 357. 390- 
 Lynch vs. Debernal, 219. 
 Lyon vs. Fishmongers Co., 56, 59, 
 
 64, 88. 
 Lyon vs. Mcl.oughlin, 321, 329.
 
 XXVlll 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Lyttle Creek Water Co. vs. Per- 
 due, 301, 302, 303, 307, 326, 
 
 345- 
 Lytte vs. Arkansas, 124. 
 
 M. 
 
 Mackenzie vs. Baker, 86. 
 Mackey vs. Coxe, 134. 
 M'Arthur vs. Browder, 143. 
 McCannvs. Oregon Ry. Co., 508. 
 McCalmont vs. Whittiker, 59. 
 McCarty vs. Boise City Canal Co., 
 
 315- 
 McCauley vs. McKeig, 163, 244, 
 
 253. 255- 
 McClain vs. People, 557. 
 McClellan vs. Hurdle, 298, 299. 
 McClintock vs. Bryden, 201. 
 McComb vs. Gilkey, 146, 288. 
 McConnell vs. Denver, 301, 303, 
 
 305. 306. 
 McCoon vs. Ankeny, 264. 
 McCord vs. Oakland Q. M. Co., 
 
 306. 
 McCormick vs. Horam, 61. 
 McCracken vs. San Francisco, 260. 
 McCreary vs. Beaudry, 266, 317, 
 
 333- 
 
 McCreary vs. Haskell, 139. 
 
 McCulloch vs. State of Mary- 
 land, 134. 
 
 McCullougli vs. Wainwright, 39. 
 
 McCullough vs. Wall, 54. 
 
 McDonald vs. Askew, 150, 154, 
 225, 247, 248, 249, 2S1. 
 
 McDonald vs. Bear River W. & M. 
 Co., 150, 154, 164, 173, 223, 
 233, 264, 267, 2S1. 
 
 McFd^lin vs. Essex Co., 54. 
 
 McFadden vs. Board, 235, 311. 
 
 McGarrahan vs. Mining Co., 208. 
 
 McGenness vs. Adriatic Mills, 250. 
 
 McGhee Irr. Ditch Co. vs. 
 Hudson, 528. 
 
 McHardy vs. Ellice, 39. 
 
 McElry vs. Gable, 66. 
 
 McKeen vs. Delaware Canal Co., 
 40, 54, 61. 
 
 McKinley vs. Wheeler, 155. 
 
 McKinney vs. Saviego, 129. 
 
 McKinney vs. Smith, 106, 150, 
 151, 154, 157, 164, 173, 175, 177, 
 I 179, 180, 231, 281, 253, 254, 259, 
 
 345- 
 
 McKensie vs. Ballard, 557. 
 
 McMannis vs. Cartnichael, 40, 41, 
 54, 64. 
 
 McMenomy vs. Band, 333. 
 
 McMicken vs. United States, 127. 
 
 McNoble vs. Justinio, 295. 
 
 McPhailvs. Fornev, 265, 269, 332, 
 488. 
 
 McUmber vs. Godfrey, 45. 
 
 Maddoxvs. Goddard, 268. 
 
 Maeris vs. Bicknell, 106, 150, 151, 
 154, 157, I59> 160, 161, 164, 167, 
 168, 173, 184, 210, 233, 254. 
 
 Magee vs. Hallett, 54. 
 
 Magor vs. Chadwick, 287. 
 
 Magnolia, The, vs. Marshall, 54. 
 
 Mahan vs. Brown, 79. 
 
 Maine Boys T. Co. vs. Boston Tun. 
 Co., 260. 
 
 Malad Valley Ir. Co. vs. Campbell, 
 173. 512.' 
 
 Malvaney vs. Kennedy, 334. 
 
 Marbury vs. Madison, 125. 
 
 Marbury vs. Nitchin, 66. 
 
 Mariner vs. Schulte, 87. 
 
 Marry vs. Sermon, 88. 
 
 Marshall vs. UUeswater Naviga- 
 tion Co., 38, 86, 88. 
 
 Martin vs. Beverly, 54. 
 
 Martin vs. Biglow, 173. 
 
 Martin vs. Bliss, 42. 
 
 Martin vs. Mance, 54. 
 
 Martin vs. Marks, 137. 
 
 Martin vs. Waddell, 51, 54, 127. 
 
 Martin vs. Zellerbach, 160. 
 
 Mason vs. Cotton, 108. 
 Mason vs. Hill, 16, 59, 62, 70, 76, 
 80, 92, 193, 250.
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 (The references are to the sections.) 
 
 jVIasou vs. IMansneld, 41. 
 Mason vs. Neil, 56. 
 Masonic Temple vs. Harris, 293. 
 Mathews vs. Ferrea, 89, 194. 
 Mathews vs. Kinsel, 244. 
 Maxwell vs. Bay City Co., 54, 93. 
 Maxwell Land Grant, 131, 134. 
 Maxwell vs. Moore; 143. 
 Maye vs. Yappen, 260. 
 Mayo vs. Courtright, 288. 
 Mayor vs. Chadwick, 250. 
 Mayor of Lynn vs. Turner, 40. 
 Mead vs. Haines, 52, 54. 
 Mead vs. United States, 128. 
 Meggerle vs. .\she, 156, 161, 169, 
 
 184, 213, 215, 219, 255. 
 Melvin vs. Whiting, 92. 
 Memphis vs. Overton, 54. 
 Menard vs. Massey, 130. 
 Menasha Wooden Ware Co. vs. 
 
 Lawson, 54. 
 Menzies vs. Bredaloane, 39. 
 Merced Mining Co. vs. Freemont, 
 
 99. 
 Merchy vs. Gates, 287. 
 Merrifield vs. Lombard, 62, 67, 250. 
 Merrifield vs. Worcester, 59, 67, 
 
 250. 
 Merritt vs. Brinkerhoff, 6t, 76, 80. 
 Merritt vs. Judd, 224, 264. 
 Merritt vs. Parker. 56, 59. 
 Messinger vs. Mason, 127. 
 Meyer, et al vs. Tacoma Light and 
 
 Water Co., 299. 
 Meyer, etc. vs. Spring Garden, 69. 
 Meyers vs. St. Louis, 64. 
 Middlesex Co. vs. Lowell, 294. 
 Middleton vs. Flat River Booming 
 
 Co., 67. 
 Middleton vs. Prichard, 52, 54,89. 
 Miles vs. Caldwell, 146. 
 Miles vs. Rose, 40. 
 Mill River Mfg. Co. vs. Smith, 54. 
 Miller, P'x parte, 91. 
 Miller vs. Auburn, etc. Ry. Co., 93. 
 
 Miller vs. Hepborn, 54. 
 
 Miller vs. Highland Ditch Co., 
 
 323. 327- 
 
 Miller vs. Lambach, 61, 
 
 Miller vs. Little, 53. 
 
 Miller vs. Mayor of New York, 40. 
 
 Miller vs. Miller, 73, 75, 76, 2S0. 
 
 Miller vs. Miller, 26S. 
 
 Miller vs. Swan, 137. 
 
 Miller vs. Taylor, 565. 
 
 Mills vs. Hall, 42. 
 
 Milwaukee Gas Light Co. vs. The 
 Gamecock, 41. 
 
 Mining Debris Case, The (See 
 Woodruff vs. North Bloom- 
 field), 294, 295, 333. 
 
 Miner vs. Gilmour, 56, 58, 59, 65, 
 66, 67, 76, 287, 297. 
 
 Minnesota vs. Bachelder, 136. 
 
 Minter vs. Crommelin, 136. 
 
 Minto vs. Delaney, 41, 55. 
 
 Minturn vs. Lisle, 42. 
 
 Mississippi Mills Co. vs. vSmith, 
 
 293- 
 Mississippi & Missouri Ry. Co. vs. 
 
 Ward, 333. 
 Missouri Pac. Ry. Co. vs. Kansas 
 
 Pac. Ry. Co., 137. 
 Missouri, etc. Ry. Co. vs. Noyes, 
 
 189. 
 Missouri, etc. Ry. Co. vs. United 
 
 States, 133. 
 Mitchell vs. Barry, 75, 250. 
 Mitchell vs. Parks, 294. 
 Mitchell vs. United States, 133. 
 Mobile vs. Eslava, 54. 
 Moffat vs. Brewer, 54. 
 Mokelomne vs. Woodbury, 249. 
 Monongahela Bridge Co- vs. Kirk, 
 
 40, 54- 
 Montello, The, 40. 
 Monroe vs. Stickney, 75. 
 Montgomery vs. Harrington, 303. 
 Montgomery vs. Lock, 350. 
 Montault vs. T'nited States, 128.
 
 XXX 
 
 TABLE OF OASES CITED. 
 
 (The references are to the sections.) 
 
 Moore vs. Clear Lake W. Co., io8, 
 
 280, 329, 330, 332. 
 Moore vs. Great vSoulhern R}-. Co. 
 
 64. 
 Moore vs. Robbins, 142, 143. 
 Moore vs. San borne, 54. 
 Moore vs. Veazie, 54. 
 Mooers vs. White, 155. 
 Moore vs. Willimette Trans. Co., 
 
 41, 55, 508. 
 Morgan vs. King, 41, 54, 201. 
 Morgan vs. Redding, 54. 
 Moriarily vs. Boone Co., 219. 
 Morrill vs. Hurley, 39. 
 Morrill vs. St. Anthony F'allsCo., 
 
 64. 
 Morris vs. Moore, 288. 
 Morrison vs. Bucksport Ry. Co., 
 
 39- 
 Morrison vs. Keene, 52, 54. 
 Morrison vs. Thurnian, 54. 
 Morrow vs. Whitney, 208. 
 Morse vs. Copeland, 93. 
 Mosier vs. Caldwell, 49, 29S. 
 Morton vs. Nebraska, 127. 
 Mottvs. Ewing, 329. 
 Mott vs. Mott, 54, 330. 
 Moulton vs. Libby, 41. 
 Moulton vs. Newberyport Water 
 
 Co., 63, 67. 
 Mower vs. Fletcher, 218. 
 Mudd Creek Irr. Co. vs. Vivian. 
 
 73. 273. 312. 
 Miihlenburg vs. Druckentniller, 
 
 263. 
 Muler vs. Land, 529. 
 Mulry vs. Norton, 82. 
 Munroe vs. Ivie, 135, 150, 173,313. 
 Munson vs. Huiigerford, 42. 
 Murchie vs. Gates, 297. 
 Murdock vs. Stickney, 40. 
 Murphy vs. Ryan, 53. 
 Murrell vs. Mackman, 93. 
 Musser vs. Hershley, 41, 54, 64. 
 Myers vs. Craft, 141. 
 
 N. 
 
 Natoma iVater Co. vs. Bugby, 139. 
 Natoma Water & Mining Co. vs. 
 
 Hancock etal., 331. 
 Natoma Water Co. vs. McCoy, 
 
 225, 249, 326. 
 Nellis vs. Munson, 91. 
 Nevada Count}', etc., Co. vs. Kidd, 
 
 106, 151, 154, i6[, 167, 179 180, 
 
 182,184,238, 247, 248, 253, 281. 
 
 Nevada Water Co. vs. Powell, 
 154. 173, I75> 176, 225, 227, 230, 
 231, 233, 248, 345. 
 
 New Albany Ry. Co. vs. Peterson, 
 
 39- 
 
 Newark Aqueduct Board vs. Pas- 
 saic, 40. 
 
 Newhall vs. Hill, 319. 
 
 Newhall vs. Ireson, 73, 75. 
 
 Newhall vs. Sanger, 124, 130, 131, 
 136. 
 
 New Ispwich Factory vs. Batchel- 
 der, 267. 
 
 New Orleans vs. LTnited States, 82, 
 312. 
 
 New Orleans vs. De Armas, 128. 
 
 Newton vs. Eddy, 54. 
 
 New York Printing Co. vs. Fitch, 
 
 334- 
 New York Rubber Co. vs. Rothery, 
 
 288. 
 Niagara Falls Ry. Co., In re, 94. 
 Niehaus vs. Shepherd, 54. 
 Nichols vs. Mcintosh et al., 231, 
 
 253, 301- 
 Nichols vs. Suncock Mfg. Co., 54. 
 Nickerson vs. Crawford, 54. 
 Nield vs. London Ry. Co. 287. 
 Noble vs. Cope, 263. 
 Noble vs. Cunningham, 54. 
 Noonan vs. Albany, 61. 
 Norfolk City vs. Cook, 54. 
 Norris vs. Harris, 2or. 
 Norris vs. Hill, 54. 
 North Noonday Mining Co. vs. 
 
 Oriental Mining Co., 155, 157. 
 Northam vs. Hurley, 91. 
 Northern Pacific Ry. Co. vs. St. 
 
 Paul, etc., Ry. Co., 144. 
 Norway Plains Co. vs. Bradley, 54, 
 
 76, 294. 
 Nugent vs Riley, 319. 
 Nuttall vs. Bracewell, 59, 76, 287, 
 
 297. 
 Nye vs. Andrews, 87. 
 
 o. 
 
 O'Connor vs. North Truckee Ditch 
 
 Co., 302, 315. 319. 
 Ogburn vs. Connor, 194. 
 O'Keefe vs. Cunningham, 176. 
 ulson vs. Merrill, 54, 87. 
 Olney vs. Fenney, 54. 
 O'Niel vs. Blodgett, 92. 
 Oneto vs. Restano, 256, 257.
 
 TABLE OF CASES CITED. 
 
 XXXI 
 
 (The refereuces are to the sections.) 
 
 Ophir Mining Co. vs. Carpenter, 
 io6, 135, 150, 160, 161, 168, 169, 
 i73> 175. 180. 184, 225, 230, 255, 
 270. 
 
 O'Riley vs. McChesney, 250. 
 
 Oregon Iron Co. vs. Trullenger, 
 508. 
 
 Ortman vs. Dickson, 106, 150, 173, 
 175. 179. 180, 219, 225, 230, 233, 
 
 247. 253- 
 Orvis vs. Powell, 146. 
 Osborne vs. Endicott, 288. 
 Osgood vs. Eldorado W. Co., 42, 
 
 98, III, 116, 148, 156, 157, 159, 
 
 160,173,184, 186,210, 211, 213, 
 
 219, 246, 247, 255, 295. 
 Ostermanvs. Baldwin, 155. 
 Owen vs. Bartholomew, 288. 
 Owen vs. Field, 59, 93. 
 Owens vs. Jackson, 138. 
 
 P. 
 
 Pacific Yacht Club vs. vSansalito 
 
 Bay W. Co., 336. 
 Packer vs. Bird, 41, 55, 87. 
 Page vs. Esty, 268. 
 Paige vs. Rocky Ford C. & Irr. 
 
 Co., 246. 
 Paine vs. Woods, 38, 73, 87, 88. 
 Palmer vs. Waddell, 39, 45. 
 Palmer vs. Mulligan, 54, 173, 250. 
 Palmdale Irr. District vs. Rathke, 
 
 392- 
 Parke vs. Kilham, 160, 301, 326, 
 
 330. 332, 333- 
 Parker vs. Baker, 2S8. 
 Parker vs. Griswold, 63, 75, 280, 
 
 321. 
 Parker vs. Hotchkiss, 80, 173, 193. 
 Parker vs. West Coast Packing 
 
 Co., 41, 55- 
 Parks Canal & Mining Co. vs. 
 
 Hoyt. 106, 162, 168, 223, 246, 
 
 247, 249, 260, 326. 
 Parks vs. Newburyport, 39, 45. 
 Partridge vs. McKinnoy, 256. 
 
 Passadena I<and Co. vs. Painter, 
 269. 
 
 Passenger Cases, The, 42. 
 
 Patton vs. Marden, 67. 
 
 Patterson et al. vs. Brown & Cam- 
 pion, 307. 
 
 Patterson vs. Jenks, 136. 
 
 Patterson vs. Winn, 125. 
 
 Patteshall vs. Turford, 109. 
 
 Pefortvs. Duncan, 82. 
 
 Pearsall vs. Post, 42. 
 
 Peasley vs. Tower, 91. 
 
 Pejepscot Proprietors vs. Cush- 
 mau, 54. 
 
 Pengra vs. Munz, 138. 
 
 Pengra vs. Wheeler, 326. 
 
 Pennsylvania vs. Wheeling Bridge 
 Co., 127. ' 
 
 Pennsylvania Ry. Co. vs. Miller, 
 60, 67. 
 
 Penny vs. Little, 201. 
 
 People vs. Canal Appraisers, 32, 
 
 40, 54, 89, loi. 
 People vs. Gerke, 125. 
 People vs. Gutchess, 42, 54. 
 People vs. Gold Run D. & M. Co., 
 
 41, 350. 
 People vs. Jones, 87. 
 People vs Larue, 389. 
 People vs. La Platte, 83. 
 People vs. Rogers, 250. 
 
 People vs. vSelma Irr. District, 396. 
 People vs. Reclamation District, 
 
 389- 
 People vs. Sherer, 214, 219. 
 People vs. Seymour, 54. 
 People vs. vSt. Louis, 42, 54. 
 People vs. Piatt, 54, 83. 
 People vs. vStevens, 333. 
 People vs. Thompson, 89. 
 People vs. Williams, 3S9. 
 Perkins vs. Dow, 73. 
 Peregoy vs. McKissick, 164, 273. 
 Peregoy vs. Sellick, 73, 336. 
 Pere Marquette Boom Co. vs. 
 
 Adams, 54.
 
 XXXll 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sectious.) 
 
 Perkins vs. Dow, 68, 7v 
 
 Perry vs. Pratt, 82. 
 
 Perry vs. Street, 139. 
 
 Perrj' vs. Thornton, 86. 
 
 Perry vs. Worcester, 314. 
 
 Peter vs. Caswell, 387, 397. 
 
 Peters vs. New Orleans Ry. Co., 
 54- 
 
 Peterson vs. McCullough, 294. 
 
 Pettee vs. Hawes, 268. 
 
 Pliilbrickvs. Ewing, 267. 
 
 Philadelphia Ry. Co., In re, 64. 
 
 Philadelphia vs. Scott, 64. 
 
 Phillips vs. Payne, 126, 145. 
 
 Phoenix Water Co. vs. Fletcher, 
 106, 173, 181, 225, 249, 250, 251, 
 332, 326. 
 
 Phillips vs. Moore, 155. 
 
 Pierpont vs. Loveless, 54 
 
 Pillsbury vs. Moore, 56, 66.. 
 
 Pilot Rock Creek Co. vs. Chap- 
 man, 249. 
 
 Pinney vs. Luce, 67. 
 
 Pitsburg vs. Scott, 64. 
 
 Pitts vs. Lancaster Mills, 76. 
 
 Pixley vs. Clark, 78. 
 
 Platte & Denver Ditch Co. vs. 
 Anderson, 572. 
 
 Piatt vs. Johnson, 81, 173. 
 
 Platte Water Co. vs. Northern 
 Colo. Irr. Co., 163, 253, 556, 
 
 563. 
 Plumleigh vs. Dawson, 60, 65. 
 Polard vs. Hagen, 51, 126, 127. 
 Polk vs. Wendall, 136. 
 Polk vs. Wendell, 312. 
 Pollard's Lessees vs. Hagan, 126. 
 Pollenfen vs. Crispin, 38, 86. 
 Polock vs. Pioche, 314, 315. 
 Poore vs. McClure, 54. 
 Portage City, 134, 188, 292, 350. 
 Porter vs. Allen, 40. 
 Pope vs. Kinman, 59, 275. 
 Posachane Water Co. vs. Standart, 
 
 345- 
 
 Posey vs. Jones, 82. 
 
 Post vs. Munn,, 41. 
 
 Potter vs. Froment, 250. 
 
 Powel vs. Butler, 297. 
 
 Pratt vs. Lamson, 56, 255. 
 
 Pratt vs. Young, 140. 
 
 Prentice vs. Geiger, 67, 294. 
 
 Prescott vs. White, 243, 268. 
 
 Prescott vs. Williams, 243. 
 
 Price vs. Scotcher, 53. 
 
 Proctor vs. Jennings, 154, 173, 179, 
 
 180, 230. 
 Proprietor vs. Nashua, 314. 
 Providence Steam Engine Co. vs. 
 
 Providence Steamship Co. ,64. 
 Pugh vs. Wheeler, 59, 69, 80, 81, 
 
 173. 193. 201. 
 Pursell vs. Stover, 93. 
 Pj-le vs. Richards, 45, 108. 
 
 Q. 
 
 Queen vs. Derbyshire, 39. 
 Question by Governor, In re, 567. 
 .Quigley vs. Birdseye, 155, 235, 253. 
 Quinn vs. Chapman, 131, 242. 
 Quirk vs. Falk, 267. 
 
 R. 
 
 Radcliff vs. Brooklyn, 78. 
 Railroad Co. vs. Djxhe, 108. 
 Railroad Co. vs. McShane, 124. 
 Railroad Co. vs. Miller, 108. 
 Railroad vs. Schurmeier, 54, 55. 
 Railroad vs. Stockton, 357. 
 Railroad Co. vs. United States, 187. 
 Ramelli vs. Irish, 248. 
 Ramsey vs. Chandler, 150, 176. 
 Randall vs. Silverthorn, 73. 
 Rankin vs. Carless, 334. 
 Raritan Water Power Co. vs. 
 
 Veghte, 93. 
 Rawstrom vs. Taj-lor, 39, 79. 
 Raymond vs. Winsette, 331. 
 Redding vs. Althouse, 287, 297. 
 Rector vs. Gibbon, 138.
 
 TABLE OF OASES CITED. 
 
 XXXlll 
 
 (The references are to the sections.) 
 
 Rector vs. United States, 133, 141, 
 
 209. 
 Red River, etc. R)'. Co. vs. Stone, 
 
 215- 
 
 Red River, etc. Co. vs. Wri.ijht, 
 
 108. 
 Reddall vs. Bryant, 94. 
 Read vs. Spicer, 223, 224, 264, 301 . 
 Regina vs. Rynd, 64. 
 Regina vs. Keyn, 51. 
 Reichert vs. Felps, 134, 147. 
 Reno S. M. Co. vs. Stevenson, 98, 
 
 198, 201, 205, 223, 227, 412. 
 Renwick vs. D. & N. W. Ry. Co., 
 
 54- 
 Rerick vs. Kern, 93. 
 Reservoir Co. vs. Southworth, 316. 
 Rex vs. Bristol Dock Co., 89. 
 Rex vs. Burdett, 109. 
 Rex vs. Clark, 89. 
 Rex vs. Montague, 40. 
 Rex vs. Oxfordshire, 39. 
 Rex vs. Russell, 64. ' 
 
 Rex vs. Trafford, 39, 56. 
 Rex vs. Trustee, 224. 
 Rex vs. Westliam, 89. 
 Rex vs. Wharton, 52. 
 Rex vs. Whitney, 59. 
 Rex vs. Yardborough, 82. 
 Reynolds vs. Commonwealth, 46. 
 Reynolds vs. Hosmer, 225, 249, 
 
 259, 267. 
 Reynolds vs. Mc.A.rthur, 39, 56, 
 
 143- 
 Rhodes vs. Otis, 54, 93. 
 Rhodes vs. Whitehead, 56, 59, 67, 
 
 68, 527, 529. 
 Ricard vs. Williams, 92, 256, 294. 
 Rice vs. Kvansville, 39. 
 Rice vs. Minn. etc. Ry. Co., 137. 
 Rice vs. Ruddiman, 54, 64. 
 Rich vs. Atwater, 288. 
 Richmond Mfg. Co. vs. Atlantic 
 
 Delaine Co., 62, 250. 
 Richards vs. Home, 54. 
 
 Richards vs. Sears, 260. 
 Richardson vs. Biglow, 268. 
 Richardson vs. Kier, 163, 244. 246, 
 
 314, 324, 325- 
 Rioker vs. Kelly, 93. 
 Ridge vs. Midland Ry. Co., 250. 
 Ridgley vs. Johnson, 54. 
 Ridgeway vs. Ludlow, 87. 
 Right vs. Eldred, 46. 
 Right vs. Howard, 108. 
 Ripka vs. Sergeant, 75. 
 Risien vs. Brown, 91. 
 Riter vs. Patch, 334. 
 Rivers vs. Burbank, 148, 156. 
 Riverside Water Co. vs. Gage, 162, 
 
 332, 337- 
 Ricks vs. Johnson, 54. 
 Roath vs. Driscoll, 48, 298. 
 Roberts vs. Arthur, 332. 
 Roberts vs. Cunningham, 54. 
 Robert May's Case, 91. 
 Roberts vs. Richards, 66, 287, 297. 
 Robinson vs. Black Diamond Coal 
 
 Co., 244. 
 Robinson vs. Imperial S. M. Co., 
 
 135, 157, 158, 159- 
 Rockwell vs. Highland Ditch Co., 
 
 559- 
 Rocki vs. Cone, 55. 
 Rogers vs. Jones, 89, 193. 
 Rominger vs. ySquares, 154, 175, 
 
 259- 
 Ross vs. Barland, 213. 
 Ross vs. Duval, 146. 
 Ross vs. Evans, 295. 
 Ross vs. Faust, 54. 
 Rowe vs. Granite Bridge Co., 40. 
 Royal Fisheries vs. Banne, 40, 51, 
 
 «3. 
 Rudd vs. Williams, 67, 173. 
 Rumsey vs. New York Ry. Co., 46. 
 Rundell vs. Delaware Canal Co., 
 
 54- 
 Rupley vs. Welch, 332. 
 Russell vs. vScott, 294.
 
 XXXVl 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Stanford vs. P'elt, 276, 280, 329, 
 
 330, 344. 
 
 Stafford vs. Mangin, 54. 
 
 Stark vs. Starrs, 124, 208. 
 
 State Freight Tax, 42. 
 
 State vs. Galvin, 201. 
 
 State vs. Canterbury, 54. 
 
 State vs. Cawood, 98. 
 
 State vs. Columbia, 94. 
 
 State vs. Driggs Drainage Co. 94. 
 
 State vs. Dibble, 42, 54. 
 
 State vs. Franklin Falls Co., 38, 83. 
 
 State vs. Glen, 54. 
 
 State vs. Gilmanton, 38, 39, 42, 54. 
 
 State vs. Hickson, 54. 
 
 State vs. Narrows Irland Club, 46, 
 
 54- 
 State vs. Poole, 54. 
 
 State vs. Roberts, 83. 
 
 State Reservation Com'rs, In re, 
 
 82. 
 State vs. Stover, 84. 
 State vs. Swallow, 146. 
 State vs. Thompson, 42. 
 State vs. Tomlinson, 54. 
 State vs. Waddingtou, 54. 
 Steamboat "Globe" vs. Kurtz, 41. 
 vSteel vs. St. Louis Smelting Co., 
 
 140. 
 Stein vs. Ashby, 54. 
 Stein vs. Burden, 66, 6S, 73, 75, 
 
 294, 321. 
 Stein Canal Co. vs. Kern Island, 
 
 etc. Co., 175, 225. 
 Stenson vs. Butler, 54. 
 Stevens vs. Peterson Ry. Co.. 64. 
 Stevens Point Boon Co. vs. Riley, 
 
 54- 
 Stewart vs. Chew, 334. 
 Stewart vs. vStevens, 557. 
 Stillman vs. W. R. Co., 173. 
 Stinson vs. <jeer, 143. 
 Stoddart vs. Chambers, 136. 
 Stockham vs. Browning, 64. 
 Stockman vs. Riverside L. & Irr. 
 
 Co., 260, 262. 
 
 Stolph vs. Hoit, 52. 
 
 Stonehewer vs. Farrar, 62, 250. 
 
 Stoner vs. Rice, 87. 
 
 Story vs. Hammond, 62. 
 
 Stout vs. Keyes, 98. 
 
 Stout vs. McAdams, 173. 
 
 Stover vs. Freeman, 54. 
 
 Stover vs. Jack, 43. 
 
 Slowell vs. Johnson, 235, 252, 457. 
 
 Stowell vs. Lincoln, 75. 
 
 Strader vs. Graham, 127. 
 
 vStrait vs. Brown, 48, 106, 135, 173, 
 
 225, 230, 397. 
 Strickler vs. Colo. vSprings Co., 
 
 152, 153, 173, 265, 316, 556. 
 Strickland vs. Todd, 81. 
 Stringfellow vs. Cain, 140. 
 Strong vs. Benedict, 90, 91. 
 Strother vs. Lucas, 207. 
 vStrout vs. Millbridge, 54. 
 Strutt vs. Bovington, 70, 294. 
 Stuart vs. Clark, 54. 
 Stuart vs. People, 201. 
 Stump vs. McNarra, 42. 
 Slurr vs. Beck, 115, 191, 219, 220, 
 
 286, 467, 477. 
 Sutcliffe vs. Booth, 287, 297. 
 Sullivan vs. Beardsley, 173. 
 Sullivan vs. vSpottswood, 40, 54. 
 Somers vs. Dickin.son, 138. 
 Supervisors vs. United States, 146, 
 Supply Ditch Co. vs. Elliott, 559. 
 Sutton vs. Casselleggi, 263. 
 Swase}' vs. Brooks, 268. 
 Sweetland vs. Olsen, 267, 268. 
 Swett vs. Cutts, 39, 45, 79. 
 Swift vs. Goodrich, 273, 274, 288, 
 
 350. 
 Swinton Water Co. vs. Wills Canal 
 
 Co., 66. 
 Suydam vs. Williamson, 146. 
 
 T. 
 
 Talbot vs. Hudson, 94. 
 Tameling vs. United States, Free- 
 hold, etc., T31, T34.
 
 TABLE OF CASES CITED. 
 
 XXXVll 
 
 (The references are to the sections.) 
 
 173. 
 
 54- 
 
 59. 
 
 Tartar vs. Spring Creek Co 
 
 174. 
 Tate vs. Parish, 250. 
 
 Tawlin vs. Dubuque Ry. Co. 
 Taylor vs. Castle, 302. 
 Taylor vs. Ely, 288. 
 Taylor vs. Fickas, 49. 
 Taylor vs. Gerrish, 93. 
 Taylor vs. Meyers, 143. 
 Taylor vs. Waters, 93. 
 Taylor vs. Welch, 45, 49, 5' 
 
 278, 282, 508. 
 Taylor vs. Whitehead, 243. 
 Taylor vs. Winona, 140. 
 Tenant vs. Goldwin, 62, 250. 
 Tenem Ditch Co. vs. Thorpe, 219, 
 Terrett vs. Mahan, 223. 
 Territtvs. Taylor, 207. 
 Thomas vs. Brackney, 250. 
 Thomas vs. Chisholm, 155. 
 Thomas vs. England, 256, 296. 
 Thomas vs. Guiraud, 23, 150, 152, 
 
 154, 159, 164, 167, 173, 228, 
 
 233. 235. 254, 556, 573- 
 Tliompson vs. Androscoggin Co., 
 
 40, 54- 
 Thompson vs. Crocker, 61. 
 Thompson vs. Doaksun, 133. 
 Thompson vs. Felton, 295. 
 Thompson vs. Lee, 157, 158, 159. 
 Thorp vs. Freed, 89, 174, 185, 253, 
 
 281. 
 Thorp vs. Tenem, 417. 
 Thorp vs. Wool man, 173. 
 Threadgill vs. Pintard, 141. 
 Thunder Bay Booming Co. vs. 
 
 Speechly, 41, 54- 
 Thurman vs. Morrison. 54. 
 Tibbitts vs. Ah Tong, 155. 
 Tide Water Co. vs. Coster, 94. 
 Tilbury vs. Silva, 52, 53. 
 Tillotson vs. Smith, 59, 75, 76, 193 
 Timm vs. Bear, 76. 
 Tinacum Fishing Co. vs. Carter, 54 
 Tinsman vs. i'.elvidere, 64. 
 Tipping vs. Kkersley, 91. 
 
 Titcomb vs. Kirk, 89, 140, 156. 
 Tolle vs. Correth, 73, 527. 
 Tolman vs. Ca.sey, 337. 
 Tombden vs. Building Co., 41. 
 Tootle vs. Clifton, 75. 
 Totel vs. Bonnefoy, 93. 108. 
 Tourtelotvs. Phelps, 56, 76. 
 Townsend vs. Little, 140. 
 Tovvnsend vs. McDonald, 66, 92. 
 Treat vs. Bates, 61. 
 Trent vs. Lord, 41. 
 Tregea vs. Owens, 391. 
 Trenouth vs. San Francisco, 218. 
 Tripp vs. Overocker, 556, 557. 
 Trent vs. McDonald, 49. 
 Trustees vs. Dennett, 87. 
 Trustees vs. Schroll, 46. 
 Trustees vs. Wagnon, 54. 
 Tucker vs. Jones, 259, 267, 268, 269 
 Tvicker vs. vSalem P'louring Mills 
 
 Co., 44, 294. 
 Tudor vs. Cambridge Water 
 
 Works, 87. 
 Tuolumne W. Co. vs. Chapman, 
 
 159, 326, 332, 333. 
 Turlock Irr. District vs. Williams, 
 
 389, 390, 395. 
 Turner vs. Holland, 54, 58. 
 Turner vs. Tuolumne Water Co., 
 
 244, 314, 324- 
 Tuthill vs. Scott, 75. 
 Twiss vs. Baldwin, 61, 76. 
 Twogood vs. Hoyt, 54. 
 Tyler vs. Green. 142. 
 Tyler vs. Wilkinson, 52, 54, 56, 59, 
 
 60, 61, 62, 67, 79, 80, 81, 173, 
 
 .9,V y 
 
 Uhlbrick vs. Kufaula Water Co., 
 
 67. 
 Umber vs. Godfrey, 43. 
 Umatilla Irr. Co. vs. Umatilla Imp. 
 
 Co., 337, 507. 
 Unger vs. Mooney, 295. 
 ' Union Dej). Co. vs. Brunswick, 55.
 
 XXXVlll 
 
 TABLE OF GASES CITED. 
 
 (The references are to the sections . ) 
 
 Union M. & M. Co. vs. Dangberg, 
 66, 67, 112, 191, 194, 207, 214, 
 218, 273, 275, 276, 278, 280. 294, 
 
 329. 331- 
 
 Union M. & M. Co. vs. Ferris, 59, 
 66,68, 69, 73, 76, 89, 112, 134 
 146, 147, 148, 156, 188, T91, 192, 
 193, 194, 196, 199, 204, 207, 273, 
 275, 280, 294. 295. 
 
 Union Pac. Ry. Co. vs. Watts, 143. 
 
 Union Water Co. vs. Cary, 167, 173, 
 181, 182, 223, 233, 256, 264.293, 
 296, 294, 326, 333. 
 
 Union Water Co. vs. Murphy Flat- 
 Fluming Co., 265. 
 
 United L,and Co. vs. Great East- 
 ern, 91. 
 
 United States vs. Andres Castil- 
 lero, 126. 
 
 United States vs. Arredondo, 126, 
 
 130. 131- 
 United States vs. Burlington, etc., 
 
 Co., 217. 
 United States vs. Carpenter, 124, 
 
 133- 
 United States vs. Cook, 133, 134. 
 United States vs. Constant, 128. 
 United States vs. DeAmisted, 12S. 
 United States vs. D'Auterive, 128. 
 United States vs DeWitt, 145- 
 United States vs. Freyberg, 208, 
 
 219. 
 United States vs. Fitzgerald, 134, 
 
 136, 142- 
 United States vs. Forty Three Gal. 
 
 of Whiskey, 126, 133. 
 United States vs. Fox, 145. 
 United States vs. Freyburry, 143. 
 United States vs. Gratiot, 147. 
 United States vs. Gear, 136. 
 United States vs. Gusman, 133. 
 United States vs. Kayana, 127. 
 United States vs. Jones, 94. 
 United States vs. Hughes, 194. 
 United States vs. Lane, 219. 
 
 United States vs. Lynde's Heirs, 
 
 128. 
 United States vs. Maxwell, Land 
 
 Grant, 127. 
 United States vs. Missouri Ry. Co., 
 
 138. 
 United States vs. Payne, 133. 
 United States vs. Percheman, 128. 
 LTnited States vs. Philadelphia & 
 
 New Orleans, 128. 
 United States vs. Railroad Bridge, 
 
 136. 
 United States vs. Reed, 143. 
 United States vs. Repentighy, 127. 
 United States vs. Rilleux, 133. 
 United States vs. Rogers, 134. 
 United States vs. Rynes, 128. 
 United States vs. Stone, 124, 208. 
 United States vs. Storrs, 219. 
 United States vs. Taylor, 219. 
 United States vs. Worrell, 201. 
 
 V. 
 
 Valley W. W. vs. Brinkhouse, 94. 
 
 Van Bergen vs. Van Bergen, 80. 
 
 Van Breda vs. Silberbauer. 297. 
 
 Van Brooks vs. Water Co.. 156. 
 
 Vancouver, The, 41. 
 
 Vanderburg vs. Vanderburg, 63. 
 
 Van Dolsen vs. New York, 64. 
 
 Van Hoesen vs. Coventry, 60. 
 
 Van Orsdale vs. Ry. Co., 108. 
 
 Van Reynegen vs. Bolton, 131, 
 
 Van vSickles vs. Haines, 58, iii, 
 112, 116, 134, 135, 146, 191, 192, 
 193, 194, 195, 196, 198, 199, 204, 
 
 227, 331. 397- 
 Van Wicks vs. Knevals, 137, 189, 
 
 190. 
 Van Winkle vs. Curtis, 301. 
 
 Varick vs. vStnith, 54, 94. 
 Vasse vs. Brownsville, 129. 
 Veazie vs. Diurnell, 54. 
 Veeder vs. Cruppy. 134. 
 Vincennes University vs. Indiana, 
 
 1.39- 
 Vyner vs. Mersej' Docks, 89.
 
 TABLE OF CASES CITED. 
 
 XXXIX 
 
 (The references are to the sections, i 
 
 Wadsworth vs. Smith, 52, 54. 
 Wadsworth vs. Tillotson, 59, 66, 76, 
 
 173. 193- 
 Wagner vs Bissell, 201. 
 Wagner vs. Chaney, 61. 
 Wainright vs. McCullough, 54. 
 Wakins vs. Peck, 92. 
 Walcott vs. Des Moines, 187. 
 Waldron vs Marsh. 334. 
 Walker vs. Allen, 54. 
 Walker vs. Board of Public Works, 
 
 42, 54- 
 Walker vs. Smith, 143. 
 Walker vs. Shepperdson, 54. 
 Walker vs. State Corn's, 146. 
 Wall vs. Cloud, 268. 
 Wallace vs. Parker, 127. 
 Wallamet Bridge Co. vs. Hatch, 
 
 40. 
 Ware vs. Allen, 108. 
 
 Ward vs. Ellis, 54. 
 
 Ware vs. Cowles, 250. 
 
 Ware vs. Hylton, 125. 
 
 Ware vs. Walker, 173, 243, 24S. 
 
 Waring vs. Jackson, 146. 
 
 Warner vs. Southworth, 54, 287. 
 
 Warren vs. Carey, 91. 
 
 Warren vs. Chambers, 88. 
 
 Warren vs. Syme, 297. 
 
 Warren vs. Van Brunt, 208. 
 
 Washington vs. Shortall, 54. 
 
 Water & M. Co. vs. Clarkin, 323. 
 
 Water Co. vs. Powell, 233. 
 
 Waters vs. Lilley, 40. 
 
 Waterman vs. Johnson, 38, 47, 54, 
 
 87,90. 
 Watson vs. Peters, 54. 
 Watterson vs. Saldunbehere, 323, 
 
 342. . 
 Watts vs. Lindsey, 143. 
 Weatherby vs. Micklejohn, 297. 
 Weaver vs. Eureka Lake Co., 150, 
 
 151, 159, 160. 175. 225, 326, 345. 
 Weaver vs. Conger, 161, 167, 182. 
 Webber vs. Harbor Com., 64. 
 
 Webber vs.Pierre Marquette Boom 
 
 Co., 54. 
 Webb vs. Portland Mfg. Co., 59, 
 
 63,69,75- 193. 321,329- 
 Weiderkind vs. Tuolumne Water 
 
 350- 
 Weill vs. Baldwin, 267. 
 
 Weis vs. Madison, 39. 
 
 Weise vs. Smith, 40, 41. 
 
 Weiss vs. Oregon I. & S. Co., 55, 
 
 60, 81, 108, 218, 275, 278, 280, 
 
 282, 330, 508. 
 Well vs. Hornby, 83. 
 Wells vs. Mantes, 346. 
 Wells, Fargo & Co. vs. Dayton, 
 
 334. 
 West Roxbury vs. Stoddard, 38, 87. 
 
 West vs. Taylor, 43, 45. 
 
 Weston vs. Alden, 68, 72. 
 
 Western Pacific Ry. Co. vs. Tevis, 
 
 212, 213, 219. 
 Wetmore vs. Atlantic White Lead 
 
 Co., 82. 
 Wetraarsh vs. Walker, 93. 
 Wheatley vs. Baugh, 48, 49, 78, 79. 
 Wheatley vs. Crisman, 60, 274. 
 Wheeler vs. Northern Colo. Irr. 
 
 Co., 30, 152, 173, 184, 228, 235, 
 
 266, 316, 317, 556, 559, 561, 572. 
 Wheeler vs. Spinola, 42, 87. 
 Wheeler vs. Worcester, 39, 61. 
 Whetstone vs. Bowser, 48, 79. 
 Whipple vs. Cumberland Mfg. Co. 
 
 75,81. 
 White vs. Hastings, etc., Ry. Co. 
 
 215- 
 
 White vs. Todd's Valley W. Co., 
 
 160, 175, 225, 238. 
 Whitehead vs. Parks, 91. 
 Whitman vs. St. Paul Ry. Co., 334 
 Whitney vs. Morrow, 208. 
 Whitney vs. Wheeler. 295. 
 Whittier vs. Cacheco, 154. 
 Wickersham vs. Bills, 268. 
 Wilson vs. Blackbird Marsh Co., 
 
 42.
 
 xl 
 
 TABLE OF CASES CITED. 
 
 (The references are to the sections.) 
 
 Wilcox vs. Hausch, io8, 163, 231, 
 
 254- 
 Wilcox vs. Jackson, 124, 133, 136, 
 
 146, 208. 
 Wilcoxon vs. McGee, 195. 
 Wilkinson vs. Leeland, 207. 
 Willard vs. Presbury, 145. 
 Williams vs. Nelson, 256. 
 Wilder vs. Wheeler, 91. 
 Williams vs. Baker, 137, 138, 141, 
 
 187, 209. 
 Williams vs. Beard, 40. 
 Williams vs. Gale, 61. 
 Williams vs. Glover, 54. 
 Williams vs. Morland, 81. 
 Williams vs. Nelson, 294, 297. 
 Williams vs. Suffolk Ins. Co., 126. 
 Williams vs. Sutton, 301. 
 Williams vs. Wadsworth, 91, 284. 
 Williams vs. Wilcox, 41, 53, 89. 
 Williamsburg Boom. Co. vs. Smith, 
 
 54. 
 Wilkes vs. Hungerford Market 
 
 Co., 64. 
 Wilkins vs. McCue, 194. 
 Wilklow vs. Lane, 294. 
 Wilmington Canal & R. Co. vs. 
 
 Uominguez, 94. 
 Wilson vs. Blackbird Creek Marsh 
 
 Co., 357- 
 Wilson vs. Forbes, 54. 
 Wilts Canal vs. Swinton Water 
 
 Co., 66. 
 Wilson vs. Shively, 83. 
 Winter vs. Winter, 294. 
 Winona, etc., Ry. Co. vs. Barney, 
 
 137, 141, 186, 188, 209. 
 Winware vs. Works, 268. 
 Wirth vs. Bronson, 124, 143. 
 Wisconsin Ry. etc. Co. vs. Lyons, 
 
 54. 
 Wisconsin Cent. Ry. Co. vs. Price, 
 
 141- o 
 
 Witherspoon vs. Duncan, 140, 2o», 
 
 214, 219- 
 Witt vs. Jefcoat, 40, 42. 
 Wixon vs. B. & A. W. Co., 106, 193. 
 
 Wixon vs. Devine, 154, 173. 
 Wolcott vs. D. M. Co., 138, 141, 
 
 187, 209. 
 Wolf vs. St. Louis W. Co., 244, 324. 
 Wolsey vs. Chapman, 137. 
 Woods vs. Edds, 76, 80. 
 Wood vs. Hustis, 54. 
 Wood vs. Kelly. 87, 93. 
 Woodruff vs. North Bloomfield G. 
 
 M. Co., 89, 132, 148, 292. 
 Wood vs. Waud, 56, 57, 59, 62, 66, 
 
 70, 250, 287. 
 Woodman vs. Tufts, 75. 
 Wood vs. Fowler, 41, 55. 
 Wood vs. Saunders, 91. 
 Woodard vs. Wilcox, 288. 
 Woodbury vs. Short, 82. 
 Woodard vs. Worcester, 62, 250. 
 Woolmau vs. Garringer, 150, 151, 
 154, 159, 160, 161, 163, 16S, 184, 
 210, 231, 233, 248, 254, 284, 255, 
 256, 322. 
 Worcester vs. Georgia, 125. 
 Wright vs. Day, 54, 87. 
 Wright vs. Howard, 56, 59, 80, 193. 
 Wright vs. Newton, 91. 
 Wright vs. Rosberry, 137, 215. 
 Wulf vs. Manuel, 155. 
 Wurts vs. Hoagland, 94. 
 Wyatt vs. Larimer & Weld Irr. 
 
 Co., 152, 3". 316, 556- 
 Wyland vs. Middlesex, 94. 
 Wythe vs. Smith, 260. 
 Y. 
 
 Yates vs. Judd, 54, 64. 
 Yates vs. Milwaukee, 55, 64. 
 Yarmouth vs. Simmons, 64. 
 Yosemite Valley Case, 124, 219. 
 Young vs. Harrison, 54. 
 Yunker vs. Nichols. 270, 556, 557, 
 
 570. ^ 
 
 Zimles vs. San Luis W. Co., 263. 
 Zimmerman vs Union Canal Co. 54. 
 Zug vs. Commonwealth, 54.
 
 PART ONE. 
 
 HISTOHY m GENERAL PRINCIPLES, 
 
 CHAPTER I. 
 
 Irriii-atioii Past and Present. 
 
 Sect 
 I. 
 2. 
 
 3- 
 4- 
 
 5- 
 6. 
 
 I. WHAT IS IRRIGATION. 
 
 ion. — 
 
 Definition. 
 
 Nature and importance of 
 subject. 
 
 Value to civilization. 
 
 The art of irrigation and its 
 progress. 
 
 The theory of irrigation. 
 
 How irrigation is made bene- 
 ficial. 
 
 7. To what plant life irrigation 
 
 is best adapted. 
 
 8. Legal rights of the irrigator. 
 
 9. Use of water for irrigation, a 
 
 natural or an artificial 
 want. 
 
 II. HI.STORY OF IRRlG.\TION IN 
 VARIOUS COUNTRIES, 
 
 10. Ancient knowledge of the art 
 
 in Egypt. 
 
 11. vSame — Art in Egypt, con- 
 
 tinued. 
 
 12. Other Ancient Countries of 
 
 the Old World acquainted 
 with the art. 
 First traces of the art in the 
 New World. — The Incas. 
 
 14. The Nahua nations. 
 
 15. Nahua nations, continued. — 
 
 Arizona. 
 
 16. A Court opinion upon the his- 
 
 tory of the subject. 
 
 13 
 
 Section.— 
 
 17. The skill with which Ancient 
 
 Canals were constructed. 
 
 III. VAI^UE OF IRRIGATION TO 
 MODERN CIVILIZATION. 
 
 18. British India. 
 
 19. Africa. 
 
 20. Irrigation in other Countries. 
 
 21. Irrigation in the United States 
 
 — The Arid Region. 
 
 22. The States included within the 
 
 Arid Region. 
 
 23. The first of modern irrigation 
 
 in the United States. 
 
 24. Same — The Mormons. 
 
 25. Same — Continued. 
 
 26. Census of irrigated land in 
 
 i8y9. — Value of water. 
 
 27. Estimate of the Department 
 
 of Agriculture in 1891. 
 
 28. The water supply. 
 
 29. Same. — Increase in supply. 
 
 30. Suppression of wasting waters. 
 
 31. Storage reservoirs. 
 
 32. vSame. — Legal contemplation. 
 
 33. Artesian wells. 
 
 34. Supply from large rivers. 
 
 35. The present condition of the 
 
 art of irrigation in the dif- 
 ferent States andTerritories. 
 
 36. Future of irrigation in the 
 
 United States.
 
 2 IRRIGATION PAST AND PRESENT. [§ 1, 2. 
 
 I. What is Irrigjition .' 
 
 §1. Deflnitiou. — "Irrigation is the operation of watering- 
 lands for agricultural purposes b}' artificial means. "^ 
 
 It is " the act of wetting or moistening the ground by 
 artificial means. "^ 
 
 Or, as Webster sa3'S, " The act of watering or moistening, 
 especially the operation of causing water to flow over lands 
 for nourishing of plants." It is a method of producing or 
 increasing fertility in soils by an artificial supply of water, 
 permitted to flow over the land by means of small trenches 
 or by inundation at stated periods. Irrigation is accom- 
 plished by means of canals or ditches, which divert the water 
 directly from some remote water course, lake or pond, and 
 conduct it to the place where it is to be used. Or it may in 
 certain localities be accomplished by sinking artesian wells to 
 a depth sufiicient to strike an underground current or water 
 course, the water of which coming from an elevated source, 
 by its own pressure forces itself to the surface, and is then 
 conducted to the place where it is to be used, by means of 
 works constructed for the purpose, to moisten the soil.^ 
 
 § 2. Nature and Iiuportauce of Siil)ject.— The enriching 
 and improving of land by means of water is an object of 
 enormous importance throughout a great part of the globe. 
 In some countries nature alone applies this powerful means 
 of improvement. In others it is effected by nature for 
 the most part, occasionally or partially modified by human 
 skill or labor. In some parts irrigation as a mode of improve- 
 ment upon nature's effort is effected principally by the 
 labor of man; and in all cases this agency of water, skillfully 
 applied, is more or less useful, according to the circumstances 
 
 1 II. Anier. & Eug. Eucyc. of to denote the application of water 
 
 law 846. Rap. Law. Diet. 682. to lands for the raising of agri- 
 
 SBouvier's Law Diet. Subject cultural crops and other products 
 
 Irrigation. of the soil. Piatt Valley Co. vs. 
 
 3 The word "irrigation," in the Northern Colorado Irrigation Co. 
 
 Colorado Irrigation Acts of 1879 12 Colo. 525; 2 Denver Leg. News, 
 
 and 1881, is used, according to the 201; 21 Pac. Rep. 711. 
 common parlance of the people,
 
 §2.] IRRIGATION PAST AND PRESENT. 3 
 
 of the case. It may be emploj^ed for meliorating the 
 soils of different characters, and for increasing the amount 
 of their products as well as adding to the forms of plant life. 
 The tropical rivers convey to the plains over which they flow 
 those annual and immense supplies of enriching deposits 
 which nourish the products of the soil, or they tend to 
 form and enrich those vast savannahs which occur in 
 those parts. Again, in the warm but more temperate 
 climates there are immense tracts of land which for vege- 
 tation have only here and there patches of grease-wood 
 and sage brush, and which, if not irrigated, so far as any 
 use to civilization is concerned, might as well be wholl}'- 
 barren. Instructed by nature and improved bj' experience 
 in the use of this element for ameliorating the soil, man- 
 kind has already felt its great value and importance from 
 the equator to nearh' the 6oth degree north latitude, and 
 extending in a more limited scale partly into the southern 
 temperate zone. The periodical rains within the tropics 
 would not be sufficient, in that burning climate, to nourish 
 the crops necessary to support the population had not nature 
 by means of her might}' rivers and streams come to their 
 aid, and if art and labor were not also employed in irrigating 
 and fertilizing vast tracts of land. Even in the vineyards, 
 fields and orchards in the milder climates of Italy and France 
 immense profits and advantages are derived from this mode 
 of improvement by the judicious application of water to the 
 earth. Irrigation when properly conducted, with care and 
 forethought, has a tendenc}' to improve the soil as well as 
 the climate of the surrounding country, while the elements 
 of the water are at the same time directed to purposes the 
 most useful and profitable to mankind. The advantages of 
 this mode of improvement are of course greatest in the pop- 
 ulous districts, where a small amount of land owned by 
 one person may be brought under a very high grade of 
 cultivation and be made productive of crops of a superior 
 value; and where the labor necessary to be bestowed upon 
 the land may be had at an inferior price. But upon the 
 great plains and high plateaus of the Arid Region of the 
 United States, where the population is exceedingly sparse,
 
 4 IRRIGATION PAST AND PRESENT. [§2,3. 
 
 water is valuable wherever it can be safel}' directed for 
 irrigating purposes. 
 
 § 3. Value to Civilizjitioii. — It is not always an eas}^ matter 
 to convince mankind how much is really within the power of 
 human skill and industry. In one age it is impossible to 
 make men realize what the possibilities of the next generation 
 may be. The first settlers in the American colonies would 
 not have then believed, had it been pointed out to them, what 
 improvements, even in the climate, were to follow the draining 
 and cultivation of their lands after the forests had disappeared. 
 Undoubtedly many ages elapsed before the people of Egypt 
 were capable of duly appreciating the full value of the swell 
 of the Nile, and of turning its enriching floods to the utmost 
 possible advantage. The treatment and cultivation of the 
 various kinds of soils, enriched b}' flooding, the application 
 of industry and skill in the methods by which it is performed, 
 and the selection of the crops best adapted to the different 
 soils, have required time and patience, until irrigation as it is 
 to-day appears as a part of an extensive system of national 
 economy, embracing the husbandry of every country in which 
 this art is applied. Immensely increased crops of all kinds 
 have been raised even in those localities which have naturally 
 a damp and humid atmosphere, within the present age, by 
 means of irrigation, and localities that were entirely desert 
 have been reclaimed and made possible for the habitation of 
 man by this means. An increasing population in the locali- 
 ties irrigated has at once furnished the labor necessar)- and 
 markets for the produce. On the other hand, it cannot be 
 denied that errors have been committed in the appliance 
 and practice of the art. It has been tried in situations 
 where nature did not favor success, and it has been employed 
 in order to force a product for which there was not an ade- 
 quate demand ; in some localities it has been carried to 
 such an extent that it exceeded the proper supplies of labor 
 within the district; and in all such cases, or similar ones, 
 the failure has been most unjustly attributed to the art 
 itself, when in fact it arose from errors in judgment or 
 foresight on the part of those who conducted the operations.
 
 § 3, 4.] IRRIGATION PAST AND PRESENT. 5 
 
 But, without requisite skill and attention, it is evident that 
 no undertaking can prosper; errors, therefore, which occur 
 from this cause, ought in no degree to bring discredit on 
 the art itself. 
 
 §4. The Art of Irrii;atioii aud its Progress.— As the 
 
 years have gone by the art of irrigation in the latter part of 
 this nineteenth century, by careful research, fully considered 
 and enlarged observation, and the experience of ages, has 
 been so highly improved in some parts of the world as to 
 have become almost a science, or at any rate it has taken on 
 a scientific character. Its features vary, indeed they are so 
 unlike in different climates as hardly to permit us to view 
 them in the same light. Looking towards the banks of the 
 Tigris and Euphrates we see the patient, plodding, oxen 
 laboriously raising the water from the streams, in buckets 
 made of bullock skins; the machinery used is of the crudest 
 possible character ; yet, with this aid the water is led into 
 little trenches, which readily conduct it to the thirsty patches 
 of soil under cultivation. Over in India we find immense 
 canals and acqueducts constructed by the government at an 
 enormous expense. Here whole provinces have been re- 
 claimed from the natural desert state and converted 
 into the most fertile and fruitful regions of the earth. 
 In our own country we find hundreds upon hundreds of 
 miles of mains and laterals built, or being built. And, 
 although great ingenuity and considerable diversity appear 
 in these different systems we do not hesitate to pronounce 
 them all justly included under the one great art of irrigation. 
 The shepherd who properly directs the course of a mountain 
 streamlet or turns the collected waters of his streams, in order 
 to prevent stagnation or waste, and, of course, to promote the 
 health of his flocks, at the same time directing the waters in 
 such a manner as to fertilize the barren spots of soil, and thus 
 to furnish additional supplies of food, really belongs to the 
 same class of artists, as those who by more elaborate surveys 
 and skillful engineering, and enormous capital and labor 
 expended, are able to direct to the most useful ends the vast 
 inundations of tropical rivers. The features of this art of
 
 6 IRRIGATION PAST AND PRESENT. [§ 4. 5. 
 
 irrigation appear very differently, but the result is the 
 same. 
 
 § 5. Tlie Tlieory of Irrigation. — The fact that water 
 artificiall}^ applied to lands produces crops upon some portions 
 which were absolutely barren without it, and increases the 
 yield upon others, may be attributed to the following causes: 
 First, as the temperature of the water is rarely below ten 
 degrees Fahr. above freezing, it prevents the frosts in winter 
 from injuring the plants by heaving the soil, raising the roots 
 to the surface and freezing them; the growth, especially of the 
 roots, is encouraged. Second, nourishment is brought to the 
 soil in the shape of sediment and mineral substances carried 
 in solution which are of the nature of plant food, and which 
 are absorbed and retained both for immediate and future use. 
 Third, the plant food already present in the soil itself is by 
 the action of the water brought in contact with the roots 
 of the plants; and lastly, the retention in the soil of the 
 various plant foods prevents it being worn out at the end 
 of a few seasons, and constanth^ improves it. To the 
 united agency of the above named causes may safely be 
 attributed the benefits that arise from irrigation. It also 
 appears that there is a great benefit derived from the mere 
 contact of abundance of moving water of an even tem- 
 perature with the roots of the various plants. Why cannot 
 crops be grown without irrigation, in a dry desert country ? 
 It is simply because the amount of moisture evaporated from 
 the surface of leaves and stems in our commonly cultivated 
 plants is so much greater in an arid climate than the amount 
 which their roots can absorb that the plant dries up and dies. 
 There are many species of native plants in our most arid 
 deserts, but their tissues are so constituted that the process 
 of evaporation, or transpiration as it is called in vegetable 
 physiology, is exceedingly restricted, even under conditions 
 of great drought, when transpiration is most rapid. Upon the 
 other hand, nearly all of our food plants have originated in, 
 and are natives of, humid climates, and are therefore incom- 
 petent to cope with the hot, dry soil and atmosphere of an 
 arid climate, without an additional supply of moisture being
 
 § 5, 6.] IRRIGATION PAST AND PREvSENT. 7 
 
 furnished artificially. The most perfect and the most natural 
 ke)' to the agricultural capacit}' of any region is its original 
 vegetation. In the plants of the desert regions the thick 
 cuticle, the covering of felted hairs, the reduced leaf surface 
 and the almost sombre grey colors are some of the evidences 
 of aridity. In the humid regions, the broad thia leaves and 
 the bright green color of the vegetation, indicative of a thin 
 cuticle, and the absence of a protective hairy blanket, are all 
 evident signs of adaption to different conditions of humidity. 
 The physiological eifect of irrigation is to furnish, for absorp- 
 tion by the roots of the plants, sufficient moisture to balance 
 the excessive amount transpirated from the leaves. 
 
 § 0. How Irrigation is Keiieficial.— In what manner, then, 
 does water operate in fertilizing barren soils, and in increasing 
 their product ? As an element itself it furnishes direct 
 supplies of food which are partly required for plant life ; as 
 a medium for moderating the temperature of the climate, 
 it lessens the rigor of the intense cold in some regions, 
 and of intense heat in others ; as a destroyer of noxious 
 weeds, and of insects, it often entirely extirpates these 
 when under proper direction ; as a means of conveying 
 fertilizing and enriching substances to the soil, it may be 
 used with great success. In the various modes of operation 
 there occur numerous features, varying with the locali- 
 ties and their surroundings, and all these must be well 
 considered in order to secure most of those beneficial effects 
 which water is qualified to promote by means of irrigation. 
 It follows, therefore, tliat great attention ought to be given to 
 the qualities of water intended for the purpose ; and that 
 before incurring great labor or expense in the application of 
 it these qualities ought first to be known. This may be 
 done partly by analysis, but most certainly by experiments 
 conducted on a moderate scale, until it is fully determined 
 just what is best under all circumstances of the case. In 
 general, spring waters are very fertilizing and possess an 
 equable temperature, !)ut impregnations of iron and some 
 other minerals are quite frequent, especially in mountainous 
 districts, even in springs, and should be avoided ; mount-
 
 8 IRRIGATION PAST AND PRESENT. [§ 6, 7- 
 
 ainous streams which hold lime in solution are very fertiliz- 
 ing ; such streams as conve}' enriching sediment and silt are 
 the best and most effectual for permanent improvement of the 
 soil. 
 
 The natural produce for which irrigation is best adapted, 
 in particular soils and climates, comes next under consider- 
 ation. Here the mere operator is not always a competent 
 judge, and it ma}^ require the combined lights of history, 
 tradition, observation and experience to ascertain the fact ; 
 but there is no doubt that it may be ascertained with a con- 
 siderable degree of assurance before expensive efforts are 
 made. The qualities of the waters and soil, and the natural 
 produce wdiicli a .combination of the two nourishes most 
 effectually being discovered in the first place, it belongs to 
 the operator to consider the population and markets of the 
 district, his own demands, the amount of competition and the 
 nature and extent of the irrigated crops by which he may 
 expect to derive the most profit. 
 
 §7. To What Plant Life Irrigation is Best Adapted.— 
 
 There is an impression among some, especially in the 
 Eastern States, that irrigation can be successfully applied 
 only to certain branches of agriculture: that horticulture is 
 the industry especially benefitted by it, and that nowhere else 
 does it very much better the aspect, financialU' or otherwise. 
 It is true that fruit culture will usually give larger returns 
 per acre under irrigation than most other branches; but it 
 also does this under ordinary conditions. The desirable 
 points of a more certain crop and a larger yield are just 
 as certainly secured with wheat, corn, alfalfa and potatoes as 
 with oranges, lemons and apples. Stock and horse raising 
 are also as much benefitted by irrigation, as pastures are 
 always kept green and fresh and great crops of hay and fodder 
 are produced. Alfalfa or lucerne, the great forage crop of the 
 arid regions of the United States, is made to give four or 
 five crops a year, which aggregate a tonnage it would 
 be impossible to secure from any meadow under ordinary 
 conditions in the Eastern States, and which in value will 
 closely rival a productive fruit orchard. Grain crops and
 
 § 7, 8.] IRRIGATION PAST AND PRESENT. 9 
 
 potatoes may likewise be largeh- increased, and almost every 
 product known to agriculture will not onl}' yield more, but 
 will also give a greater return above the cost of production. 
 Especially valuable is irrigation in raising vegetables and 
 garden produce. Near the cities and towns of the arid regions 
 the market gardeners, upon a small patch of ground of five to 
 ten acres, properl}' irrigated, can raise an amount of produce 
 that would surprise the gardeners of the Eastern States who 
 depend simph^ upon the rainfall, although the eastern gardeners 
 raay have several times the amount of land under cultivation. 
 One of the greatest proofs of the value of irrigation lies in 
 the fact that no farmer who has once practiced it would 
 willingly return to the pursuit of agriculture in any district 
 where he would be dependent upon the natural and unevenly 
 distributed rainfall. Even in the regions where the rain-fall 
 is usually ample for the growth and ripening of the fruit or 
 crops the art of irrigation is becoming each year more and 
 more a valuable adjunct to the natural rain-fall. The 
 satisfaction of knowing that the labor of a .season will not be 
 rendered void because of a week of drought coming just at 
 the time when the plants need the moisture most, is one 
 that cannot be too much appreciated. The normal condition 
 of the average farmer who depends upon the fall of rain is 
 one of anxiet}'. He must wait for rains in order to plow, to 
 sow, to cultivate. His work is often delayed because they do 
 not come. The farmer who irrigates has the water under con- 
 trol. He turns on the amount needed, and fits his land readily 
 for any of these operations. He is sure of his supply of water, 
 regardless of the condition of the weather. Should the rain- 
 fall be sufficient to supply the necessary moisture he needs 
 only to suspend his irrigating operations for the time being. 
 
 §8. Lef;al Ui;;lils of tlics lrriu:at<>r. — Also la.st, but 
 by no means least, the operator must be ^thoroughly 
 familiar with his legal standing, as for instance, if he 
 claims the water of a natural stream by virtue simply of 
 an appropriation of the same he must understand thor- 
 oughly what his rights are under the laws of the country to 
 his appropriation as against other apj^ropriators, either jirior
 
 10 IRRIGATION PAST AND PRESENT. [§ 8, 9. 
 
 or subsequent to him, and as against persons who own land 
 through which, or adjoining which, the stream flows and who 
 claim the use of the waters by virtue of their riparian rights 
 in and to the same. Again, if the operator claims the use 
 of the water b)' virtue of his riparian rights accruing from 
 the circumstances of the locality of his land upon the stream, 
 he must understand the laws of the country relative to his 
 right to divert the water from the natural stream by virtue of 
 his position upon the same, his rights as against his neighbors 
 who have similar riparian rights from the fact that their lands 
 also adjoin the stream, and who, perhaps, may insist that the 
 stream continue to flow in its natural channel, undiminished 
 in quantity and undeteriorated in quality; his rights as against 
 those who claim the waters simply b}' an appropriation of the 
 same, either coming prior or subsequent to the time when his 
 riparian rights first vested, either in himself or his grantors. 
 All these questions should be understood as thoroughly as 
 possible before the operator invests too great a sum in the 
 enterprise. In man}' localities may be found canals and 
 irrigating works which have been constructed with great 
 expenditure of mone}' and labor, and which have been aban- 
 doned because the projector did not completely take into 
 consideration one or more of these questions. A prudent 
 man will be determined in a considerable degree b}' these 
 considerations before he embarks too deeply in the undertak- 
 ing. And, by the careful consideration of these questions, he 
 may thus avert disaster to the enterprise, financial ruin to 
 himself, and reflection upon the art of irrigation. 
 
 § 1). Use of >V;iter for iri-igatioii, Ji Natural or an 
 Artificial Want. — The authorities upon the subject seem 
 to differ considerably as to whether water for irrigation 
 is a natural or an artificial want. The distinction betw^een 
 ' ' natural ' ' . and ' ' artificial " ' wants seems to be derived 
 from a distinction prev^oush' made b}- the authorities, 
 and which has sometimes been designated as a difference 
 between the use of water for "ordinary" and "extraordinary" 
 purposes. x\s these terms are applied under the common 
 law rules, "natural wants" are supplied by the "ordinary" use
 
 § 9.] IRRIGATION PAST AND PRESENT. 1 1 
 
 of the waters of the stream, while the " artificial " wants are 
 supplied by the ' 'extraordinar}-' ' use of the water. The natural 
 wants are defined as including the use of water for domestic 
 purposes at the home or farm, such as drinking, washing or 
 cooking and for watering stock, ^ while artificial wants are 
 defined under the common law theories as any want not 
 included among the natural wants. The difficulty into which 
 the writers upon this subject have fallen seems to have been 
 from endeavoring to apply this principle of "natural" and 
 "artificial" wants to mixed classes of those different rights to 
 use the water. It must be borne in mind that there are two 
 separate and distinct systems of water rights in the arid regions 
 of the United States: one, the arid region doctrine, whose law 
 is priority of appropriation; the other, the common law doc- 
 trine, w^hose basis is equality between all those who own lands 
 upon the stream. Among riparian owners, in accordance 
 with the common law doctrine, the use of water for irrigation 
 is an extraordinary use, and is beyond all question to supply 
 an artificial want. All the rights of the riparian proprietors 
 upon the same stream are equal, and, if all have had their 
 natural wants supplied, and there is still water in the stream, 
 they all have an equal right to use the surplus for any arti- 
 ficial purpose or want. But, upon the other hand, in a hot 
 and arid climate water is indispensable for the cultivation of 
 the soil, and, as between those who claim the water by the 
 priority of their different appropriations water for irrigation 
 may be classified as a natural want. This question was dis- 
 cussed at length by the Supreme 'Court of Illinois, in the case 
 of Evans z-^-. Merriweather,^ in which the court said : ' 'The use 
 must be a reasonable one. Now, the question fairly arises, is 
 that a reasonable use of running water, by the upper proprietor, 
 by which the fluid is entirely consumed ? To answer the 
 question satisfactorily, it is joroper to consider the wants in 
 regard to the elements of water. These wants are either 
 natural or artificial. Natural arc such as are al)S()lutely neces- 
 sary to be supplied, in order to his existence; artificial, such 
 
 1 See (ioulil on Waters, section - Kvaiis vs. Menivveallier, .^ Scam. 
 205. 492, ^95; 3S Anier. Dec. 106.
 
 12 IRRIGATION PAST AND PRESENT. [^ 9, 10. 
 
 only as by suppl3dng them, his comfort and prosperity are 
 increased. To quench thirst and for household purposes, 
 water is absolutely indispensable. In civilized life, water for 
 cattle is also necessary. These wants must be supplied, or 
 both man and beast will perish. The suppl)^ of a man's 
 artificial wants is not necessary to his existence; he could 
 live if water was not employed to irrigate his lands, or in 
 propelling his machinery. In countries differently^ situated 
 from ours, with a hot and arid climate, water doubtless is 
 indispensable for the cultivation of the soil, and in these, water 
 for irrigation would be a natural want. ' ' Hence, it follows, that 
 if the prior proprietor should consume all the water of a small 
 stream for irrigating his land, without waste, it would still be 
 to suppl}' his natural wants. ^ 
 
 II. History of IiTigation in Tarioiis Countries. 
 
 §10. Ancient Knowledge of the Art in Egypt. —That 
 irrigation is a very ancient art, and that it was practiced 
 by the earlier nations of the earth upon a most magnifi- 
 cent scale there can be no possible question. Historians 
 and other writers differ considerably as to where the art 
 was first practiced. Some writers have placed its localit}^ in 
 China, some in India and some in Armenia ; others have 
 placed its first inception among the ancient nations along 
 the shores of the Mediterranean ; others with the Incas of 
 Peru, and still others with the Nahua Nations — which 
 include the Toltecs and Aztecs in Central America, Mexico 
 and Arizona, which from these evidences of civilization, 
 although as ancient as any known part of the globe, is com- 
 monly called the New World. But owing to the numerous 
 monumental tablets and sarcophagi, potsherds and papyrus 
 rolls which have been in the ages past discovered and trans- 
 lated, modern research has been enabled to carry the clear 
 
 1 See Chapter VIII, Sec. 225— Harnett, in Bear River & Auburn 
 
 232, as to amount of water that W. Co. vs. N. Y. M. Co., 8 Cal. 
 
 may be diverged for any purpose. 327. 
 See also opinion of Mr. Justice
 
 § 10.] IIIRIGATIOX I'A^T AND 1•RESE^'T. 13 
 
 and consecutive history of Egypt farther back than that of 
 any other country, and Egypt is consequently generally 
 considered the birth place of irrigation. But the exact date 
 has never been fixed upon. And so long as the leading Egypt- 
 ologists disagree on the question of dates among themselves, 
 sometimes by more than a thousand 3'ears, it is in vain to 
 attempt to fix the origin of regulated irrigation; but we may 
 be sure that at least 2000 jxars before Christ it was quite 
 extensively practiced in Egypt. In tracing back the history 
 of the most ancient nations, however, we find that what is 
 true as to other countries, is more especially so of Egypt. 
 At the ver}^ earliest date to which historians have been 
 able to trace them, their arts and industrial pursuits were 
 as perfect and elaborate, and carried to as high a state of 
 perfection as at the later periods, and almost inestimably 
 higher than the civilization of the degenerate races of people 
 who roam over these same lands to-day. In Egypt those 
 public works for irrigation which have been decided the 
 earliest are on a much greater scale and more perfect in 
 details than the later ones, and as compared with those 
 of to-day may be truly classed, with its ancient civiliza- 
 tion and literature, amongst the lost arts of that country. 
 From ancient writings recently discovered, and from recent 
 examinations of the condition of the Nile above Cairo by 
 scientists and explorers, the conclusion has been reached 
 that the six cataracts from Assouan to near Kartoum, in 
 the river Nile, were not, as has been supposed for ages, 
 the work of Nature but of ancient and scientific engineering 
 for the purposes of both irrigation and navigation. Engineer- 
 ing at once bold in its conception and colossal in its execution. 
 That it had also been most successful in its results was evident 
 from the remains of irrigating canals still stretching over many 
 degrees of longitude on both sides of the river, as well as by 
 the ancient records of flourishing cities, where now only 
 barren wastes are to be found, inhabited by roving tribes 
 of Arabs. These canals and these ruins are by no means 
 confined to the valley of the Nile proper, but they reach to the 
 very confines of the Great Desert. Gordon speaks of the 
 ancient irrigation canals as pervading the whole vSoudan, as
 
 14 IRRIGATION PAST AND PRESENT. [§ 10, 11. 
 
 well as what is now desert, on the northern side of the Nile 
 from the Mediterranean to latitude 15° north, if not further, 
 and man}^ degrees of longitude west, as well as east of the 
 Nile valley proper. Scientists were led to this belief that 
 the cataracts were not the work of Nature by the fact that 
 they were very nearly equidistant from each other along 
 the course of the river. The total distance from the first 
 cataract at Assouan to Khartoum is seven hundred and 
 twenty miles, and the division of this space by six cataracts 
 will give one hundred and twent}' miles between each, which 
 is almost the exact distance between an}'' two cataracts. The 
 fall of the river being eight inches to the mile would give 
 a needed height to each dam of eighty feet, exactly, in short, 
 the calculation which would now be made, primarily, by any 
 irrigation engineer. Last, but not least, the great square 
 granite blocks, composed of a formation that cannot be found 
 in any other parts of the Nile except at the cataracts or rapids, 
 stretching out for over two thousand yards across the river 
 are still visible at very low Nile. From these facts modern 
 scientists and engineers have come to the conclusion that the 
 cataracts or rapids were not the work of Nature, but were 
 enormous dams constructed by man, for the purposes above 
 described. But the proof of the dams having existed where 
 the cataracts or rapids now are does not rest simply on the 
 inference of experts upon the appearance of the river. Quite 
 recently there have been found ancient writings which speak 
 of this fact; and among the various inscriptions found is one 
 found at Sikilis to the effect that the Nile watered vast 
 regions above Semnah, but that the rock gave way, and that 
 ever after the river ceased to water the region above. 
 
 § 11. Same. — Art in Egypt (/Oiitinuetl. — It is not our 
 
 intention in this work to go into the history in detail 
 of the art of irrigation in all the ancient countries of 
 the world, but only so far as it is necessary to .show 
 that it was known ages before the Christian era, and 
 was practiced in those hot arid countries upon a colossal 
 scale. Our record of the history of irrigation in ancient 
 Eg5^pt would not be complete without giving a sketch of that
 
 § 11.] IRRIGATIOX I'AST AND PRESENT. 15 
 
 country as written by Plato, a Grecian who received his 
 information from the writings and saj-ings of one of his 
 ancestors, Solon, the great law giver of Athens, six hundred 
 5^ears before Christ. According to ancient history, Solon 
 visited Egypt and spent ten years there studj'ing the 
 philosoph)- and early history of that country. Here Plato 
 relates that he learned from the high priest of Sais, at the 
 delta of the Nile, the history and description of Atlantis, and 
 became convinced that the Egyptians constituted one of the 
 earliest and largest colonies which had gone out from the 
 land of the Atlantidae. Now as to the ancient art of 
 irrigation, let us quote from the record that Plato has left us: 
 " And beginning from the sea, they dug a canal three hundred 
 feet in width and one hundred feet in depth, and fift}' stadia 
 in length, which they carried through the outermost zone, 
 making a passage from the sea up to this, which became a 
 harbor, and leaving an opening sufficient to enable the 
 largest vessels to find egress. Moreover, the)' divided the 
 zones of land which parted the zones of sea, constructing 
 bridges of such width as to leave a passage for a trireme to 
 pass out of one into another, and roofed over them; and there 
 was a way underneath for the ships, for the banks of the 
 zones were raised considerably above the water. * * * jj^ 
 the next place they used fountains both of cold and hot 
 springs. * * * They constructed buildings about them 
 and planted suitable trees; also cisterns, some open to heaven, 
 others roofed over. * * * The water which ran off they carried 
 some to the grove of Poseidon, where were growing all 
 manner of trees of wonderful height and beauty, owing to the 
 excellence of the soil; tJie remainder was conveyed by 
 aqueducts which passed over the bridges to the outer circles. 
 I will describe the plain, which has been cultivated during 
 many ages, by many generations of kings. It was rectangular, 
 and for the most part, straight and oblong; and what it wanted 
 of the straight line followed the line ot the circular ditch. 
 The depth and width and length of this ditch were incredible, 
 and gave the impression that such a work in addition to so 
 many other works, could hardly have been wrought by the 
 hand of man. But I must say what I have heard. It was
 
 16 IRRIGATION PAST AND PRESENT. [§ 11, 12. 
 
 excavated to the depth of a hundred feet, and its width was a 
 stadium everywhere; it was carried around the whole of the 
 plain, and was ten thousand stadia in length, It received the 
 streams which came down from the mountains, and winding 
 round plains, touching cities at various points, was there let 
 off into the sea. From above likewise, straight canals of a 
 hundred feet in width were in the plain, and again let off into 
 the ditch, *toward the sea; these canals were at intervals of an 
 hundred stadia, and by them brought down wood from the 
 mountains to the city, and conve5'ed the fruits of the earth in 
 ships, cutting transverse passage from one canal to another, 
 and to the city. Twice in the year they gathered the fruits 
 of the earth, in winter, having the benefits of the rains, and 
 in summer introducing the waters of the canals." From the 
 foregoing it can be readily seen that irrigation was not only 
 known and practiced at a very early date by the Egyptians, 
 but also was at least known by the Grecians; that the ancient 
 nations constructed underground conduits for bringing water 
 from the heights which they allowed to gush forth at suitable 
 points for irrigating purposes and for domestic use; that they 
 built immense dams, canals, reservoirs and aqueducts for the 
 same purpose; and that whether the story of Plato of the lost 
 Atlantis and its people is true or not we are sure that, long 
 prior to the time Plato wrote, these stupendous feats had 
 been accomplished and were not then considered beyond the 
 possibility of human skill and engineering. 
 
 §12. Other Ancient Countries of tlie Old World Ac- 
 quainted with the Art. — It is not the purpose of this volume 
 to go into a lengthy discussion of the ancient history 
 of this art, but we will briefly mention a few of the 
 nations which were acquainted with the workings of the 
 application of water, by artificial means, for the purpose of 
 irrigating lands. To Egypt, as has been seen, is attributed 
 the first knowledge and practice of the art of irrigation, 
 and it is claimed by some authorities that it was the annual 
 overflow of the river Nile which gave the inspiration and 
 taught its value to that people. It is more than probable 
 that Egypt, in her turn, taught irrigation to the people of
 
 §12,13] IRRIGATION PAST AND PRESENT. 17 
 
 Assyria, Babylonia, Carthage, to the Phoenicians and to 
 the inhabitants of Italy. At any rate, at a later date 
 we find records of these nations having knowledge of and 
 practicing irrigation very extensively. A great many of the 
 ancient writers of those countries speak of the canals and 
 aqueducts. Cato and Calumella, amongst the Romans, speak 
 of the formation and management of watered gardens. The 
 Lombard Kings, at a still later date, undoubtedly following 
 the Roman practice, encouraged and extended the system in 
 Italy. From Lombardy it was introduced into France ; and the 
 Moors encouraged it in Spain, Sicily and Algeria. The 
 early history of Persia and China also shows that these 
 nations were acquainted with irrigation at a remote time. 
 In India it was also practiced in very early days and con- 
 tinues in vogue to this day ; and the mighty canals and 
 aqueducts of that country are wonders of the world, so 
 far as engineering skill and construction are concerned. In 
 fact, in all those countries where irrigation has been practiced 
 we find it still in operation, though perhaps not so exten- 
 sively, nor upon so large a scale as it was by the ancients. 
 
 § 13. Fii-st Traces of li rigatioii in the New World.— 
 The Iiicas. — Respecting irrigation in South America, the 
 artificial watering of the earth to increase its fruitfulness is 
 of origin so remote that its history is quite unknown. At 
 a period probably ante-dating the Christian era the inhabi- 
 tants of that country understood a scientific system of using 
 the waters of natural streams and lakes for the purpose of 
 irrigating their crops. But the art was lost there if we are 
 to judge by a comparison of the irrigation works of to-day 
 with those of the past ages. Philologists and archaeologists 
 think and claim that no conceivable simple case of deterio- 
 ration of a race could have taken place which would have 
 efitcted such a change as is apparent. They think the an- 
 cient people of the country became extinct, and that the 
 present inhabitants are in no sense descendants of the former 
 occupants of the land, but rather that they represent a later 
 migration from another country. The study of the works of 
 irrigation would confirm tliis theory. It is impossible to
 
 18 IRRIGATION PAST AND PRESENT. [§ 13, 14, 
 
 suppose that the present inhabitants of Peru and Bolivia, 
 practicing irrigation as they do to-day, in the crudest con- 
 ceivable manner, could have sprung from a race which was at 
 one time master of the art, by whom aqueducts, canals 
 and reservoirs were constructed on an immense scale, and 
 in such an enduring manner that they have defied the 
 changes of many centuries. When or by whom they were 
 built cannot be definitely ascertained, but there is ample proof 
 that the people who planned and maintained them were in 
 many ways highly civilized. Some of the aqueducts were of 
 great length, one that traversed the district of Condesuyos 
 measured nearly five hundred miles. The water was brought 
 from a lake or natural reservoir in the heart of the mountains 
 and additional supplies were obtained at intervals from 
 other basins that lay in their route. Prescott remarks: 
 "Canals and aqueducts were seen crossing the lowlands in 
 all directions, and spreading over the country like a vast net 
 work, diffusing fertility and beauty around them." Most of 
 these works of the Incas have been allowed by their Spanish 
 conquerors to go to decay. In some spots the waters are 
 still left to flow in their silent channels, whose windings and 
 sources have been alike unexplored. Others, though par- 
 tially dilapidated and closed with rubbish and rank vege- 
 tation, still betray their course by occasional patches of 
 fertility. Such are the remains in thevalley of the Narca, 
 a fruitful spot lying between long tracts of desert, where 
 the ancient water-courses of the Incas, measuring four or five 
 inches in depth by three feet in width, and formed by long 
 blocks of granite, uncemented, are conducted from an 
 unknown distance. 
 
 §1-1:. The Nahiia Nations. — While on the subject of prehis- 
 toric nations I will refer to the works of the Nahua Nations, 
 especially of those tribes known as the Aztecs and Toltecs, 
 who formerly lived in Central America, Mexico, New Mexico 
 and Arizona. We are told in history that when Cortes visited 
 Mexico, for the purpose of irrigating the fields the water 
 of the rivers and mountain streams were utilized by means of 
 canals, dams and ditches, and that the net work of canals
 
 § 14.J IRRIGATION PAST AND PRESENT. 19 
 
 b}' which the plantations were watered offered to Cortes' 
 army very serious obstruction.^ Probably the greatest souve- 
 nir left by the aboriginal races of North America is to be 
 found in the maze of prehistoric canals found in the Salt 
 River and Gila Valleys of Arizona. The age of these canals 
 is entirely unknown, and purely a matter of conjecture. 
 That they were constructed b}'^ a race of people who had 
 attained a far higher degree of civilization than the abori- 
 gines who inhabit that part of the country goes with- 
 out saj'ing. There is but one tradition among the present 
 Indian tribes concerning these canals, and that relates to 
 their destruction. When Coronado, in 1542, was seeking the 
 seven cities of Cibola he found several tribes of aborigines 
 in what is now Arizona, supporting themselves wholly or in 
 part b}' tilling the soil. These tribes themselves occupied 
 but a limited area, but wideh' scattered groups of ruins prove 
 that in early centuries the principal valley's were inhab- 
 ited by a numerous people who had lived chiefly by agricul- 
 ture, and to-daj^ in many districts their irrigating canals are 
 still to be seen. Coronado was astonished b}^ the extent and 
 size of these canals, but failed to learn aught of their age or 
 builders, except a tradition of the hasty flight of that pre- 
 historic people and the destruction of their works. ^ Whether 
 the tradition as related to the Spaniards under Coronado and 
 by the aborigines themselves, which has been handed down 
 to the present time, is true as to the actual history of the 
 canals, or whether it is a creation of a later day, it is hard to 
 say. But often times what is considered to be mythology and 
 tradition in one age is proven in the next to be fact. It 
 is certainly true that the tradition of the natives is corrobo- 
 rated to a great extent by still existing evidences. The ruins 
 of these canals are plainly visible in the Gila and Salt River 
 Valleys, running almost to the Colorado River, and every- 
 where are to be found the traces of ancient civilization of a 
 
 1 2 Bancroft's Works, 349. pressed with tlie beauty, order and 
 
 2 17 Bancroft's Works, 549; i Ban- disposition of the arrangements 
 
 croft's Works, 539; Garces Diano, for irrigating." Kniory in Fremont 
 
 in Doc. Hist. Mex. Series 2 Tom. i and Kuiory's Notes of Trav. pp. 
 
 pp. 235, 37. "We were at once im- 47-8; i Irrigation Age, 26.
 
 20 IRRIGATION PAST AND PRESENT. [§ 14, 15. 
 
 high order, evidences of hast}^ flight, as well as the ravages 
 of fire, the salient features of pillage. 
 
 §15. Nahua Nations, continued.— Arizoua. — In Arizona are 
 to be found remains of prehistoric canals which with 
 their laterals must exceed a thousand miles in length, 
 and the ruins of many of them give evidence of the 
 expenditure of vast labor in their construction. One of the 
 largest of these canals took the water from the south side of 
 Salt River, about twenty-five miles from the present city of 
 Phoenix, and after leaving the river ran for several miles 
 through a formation of hard volcanic rock. Thus without 
 explosives of any kind, and with the simple tools of the stone 
 age, the aboriginal constructors of the ditch excavated a canal 
 through solid rock of the hardest formation to a depth vary- 
 ing from twenty to thirty feet, and to a width of about twenty 
 feet, and having a capacity of from ten thousand to fifteen 
 thousand miner's inches when the river was at its ordinary 
 stages. The evidence of the vast amount of labor expended 
 in its construction by the chipping process is plain 
 upon the face of the rock itself, while for miles on both 
 sides of the canal can be found vast numbers of worn out 
 stone axes and hammers. A party of Mormons have suc- 
 ceeded in clearing away the accumulated debris and restoring 
 the ditch to its original usefulness, and have thereby con- 
 verted a barren waste into fertile fields, now occupied by 
 twenty thousand people. The canal is at present known as the 
 Mesa Canal, and supplies Mesa City and vicinity with water for 
 irrigating and other purposes. Two miles east of the above 
 mentioned canal, but on the other side of the river, is the head 
 of the great Arizona Canal, the largest in the south-west if not 
 on the Pacific Coast, carrying as it does nearly fifty thousand 
 inches of water. Its construction was also suggested by the 
 remains of a prehistoric canal that could be traced for many 
 miles, and the promoter of the new enterprise, in the firm belief 
 that what had been done could be done again under like condi- 
 tions, had the pleasure of seeing completed a water way which 
 reclaimed over one hundred thousand acres in and around the 
 citv of PhcEuix. Forty miles west of the Arizona Canal, and
 
 § 15, 10. 1 IRRIGATION PAST AND PRESENT. 21 
 
 a few miles helow the junction of the Salt River with the 
 Gila on the North bank of the latter river, is the head 
 of another ditch which from the traces of prehistoric 
 civilization fomid along its banks is of even more interest. 
 It is called the " Acequa of the painted rocks," and com- 
 mences where it can take from the Gila not only the waters 
 of that stream, but also the water of all the canals lying 
 north and east of it as well. Portions of the canal have 
 been reclaimed, but those parts which the hand of modern 
 civilization has not touched are still so distinct that their 
 remains may be traced without difficulty for fifty miles, while 
 between it and the Gila river, in the lands which were 
 formerly irrigated from it, can be found the relics of ancient 
 civilization in profusion, not only in the shape of ruined 
 buildings, but also of pottery, stone implements and weapons, 
 ornaments, etc. But another curious feature of this canal, 
 and the strongest evidence of the great length of time which 
 has elapsed since the system of irrigation was maintained, is 
 that a few miles below the point where it crosses the 
 Hassayamba creek it traverses a mesa or bench for several 
 miles, from which it falls abruptly into a valley some forty or 
 fifty feet below. Where this fall takes place the waters of the 
 canal have cut away for several feet the walls of the mesa, 
 which are of the hardest volcanic character. As every 
 evidence indicates that the erosion of the rock has been 
 accomplished by the action of the water alone centuries must 
 have been required for the work. Upon the face of the rock 
 thus cut away are to be found hieroglyphics of every 
 description, of the meaning of which the present "aborigines 
 know nothing. From these inscriptions the white man has 
 given them the name of " Painted Rocks." 
 
 ^ 1(>. A Court Opinion upon the History of the Subject.— 
 
 Mr. Justice Barnes, in rendering the decision of the Supreme 
 Court of Arizona, in the case of Clough vs. Wing, in the year 
 i888,^ went into the history of the .subject, and in the course 
 of his very able opinion, said: "The right to appropriate and 
 
 1 17 Pac. Rep. 455.
 
 22 IRRIGATION PAST AND PRESENT. [§ 16. 
 
 use water for irrigation has been recognized* longer than 
 history, and since earlier than tradition. Evidences of it are 
 to be found all over Arizona and New Mexico in the ancient 
 canals of a prehistoric people, who once composed a dense and 
 highly civilized population. These canals are now plainly 
 marked, and some modern canals follow the track and use the 
 work of this forgotten people. The native tribes, the Pimas 
 and Papagoes and other Pueblo Indians, now as they for 
 generations have done, appropriate and use the waters of these 
 streams, in husbandrj^ and sacredly recognize the rights 
 acquired by law and use, and no right of a riparian owner is 
 thought of. The only right in water is found in the right to 
 conduct the same through their canals to their fields, there to 
 use the same in irrigation. The same was found to prevail 
 in Mexico among the Aztecs, the Toltecs, the Vaquis and 
 other tribes at the time of conquest, and remained undisturbed 
 in the jurisprudence of that country until now. It existed also 
 in Peru, though there the appropriation was by the state, which 
 constructed and maintained the canals for the use of the 
 tillers of the soil. The Spanish conquerors brought the same 
 idea with them from Spain where they prevailed then as now. 
 Escriche, tit ' Agua,' §§ III, IV., and ' Acequia.' 'The 
 Lombard kings following the Roman practice encouraged and 
 extended irrigation in Italy. From Lombardy the art 
 extended to France ; while the Moors encouraged it in Spain, 
 Sicily and Algeria.' Ency. Brit., 9th edition. 'Necessity 
 required it in the districts which comprise parts of the south 
 of Spain, Portugal and Italy, including Sicily and Greece.' 
 Id. 'Ruins of ancient irrigating works are found in Spain.' Id. 
 In Egypt and in some parts of Persia, India and some parts 
 of China, this form of husbandry has been practiced from time 
 immemorial and still continues. Under the civil law water 
 was publici Juris and by that law the ' first person who 
 chooses to appropriate a natural stream to a useful purpose 
 has title against the owner of the land below, and may 
 deprive him of the benefit of the natural flow of the water.' 
 Per Denman in Mason vs. Hill, 5 Barn. & Adol. i. Thus we 
 see that this is the oldest method of skilled husbandry and 
 probably a large number of the human race have ever
 
 § 16, 17.J IRRIGATION PAST AND PRESENT. 23 
 
 depended upon artificial irrigation for their food products. 
 The riparian rights of the common law could not exist under 
 such system ; 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." 
 
 § 17. The Skill with which Ancient Canals were Con- 
 structed.— The instances here cited of the use of natural 
 streams and lakes for the purpose of irrigation by the ancients 
 are but a few of the most prominent of those of the old and 
 new world. Many of these ancient canals have been utilized 
 for modern husbandry. But the very facility with which 
 they have been thus utilized have been the means of obliterat- 
 ing the opportunities of tracing back their history and that of 
 the people who constructed them. Once an old ditch is repaired 
 or restored it ceases to be of interest from an antiquarian 
 standpoint, and soon even its prehistoric origin is forgotten. 
 The question often arises, how great was the skill and inge- 
 nuity these prehistoric nations possessed in their day ? 
 Never has the skill of the best modern engineers been able to 
 improve on the lines of the ruined canals which they left 
 behind them. In the selection of locations at which to take 
 the water from the rivers the prehistoric race have always 
 exhibited the greatest skill and intelligence. It was these 
 ruins left in Arizona that early in the seventies first gave 
 the settlers of the territory the idea of reclaiming the valleys 
 where now are towns and cities surrounded by a large popu- 
 lation of agriculturists. The first canals simply followed the 
 line of the prehistoric ones. How extensive the system of 
 irrigation in the Salt River Valley alone was, may be inferred 
 from the fact that the amount of land practically covered by 
 the canals was over a quarter of a million of acres. The 
 population supported must have been very great. And it is 
 estimated that from the amount of ground probably culti- 
 vated, and the ruins of houses and remains of fragments of 
 pottery, shell ornaments and stone implements found every- 
 where over the lands, the population supported by the ditches
 
 24 IRRIGATION PAST AND PRESENT. [§ 17, 18. 
 
 would not fall short of 500,000 people — an estimate that the 
 best authorities consider conservative. 
 
 III. Value of Irrigation to Modern Civilization. 
 
 § 18. British India. — The art of irrigation in India was 
 practiced for many centuries, first by utilizing small streams, 
 and then the great rivers. As population increased a new 
 system for the storage of water was developed. In that land 
 a rainy season prevails, when great quantities of water are 
 precipitated, but during the season of growing crops the 
 country is hot and dry. Under these conditions the people 
 learned to store the storm waters in reservoirs constructed 
 by erecting dams- across gulches, and hundreds of thousands 
 of these storm tanks were ultimately made. Since the British 
 have held control of India irrigating works have been con- 
 structed on stupendous plans. The hydraulic engineering 
 practiced in their construction vies with the best in the 
 world; and no longer is irrigation precarious, for the streams 
 and storms waters are controlled by the highest human art. 
 In that country, according to the recent statistical reports, 
 $360,000,000 have been invested for that purpose and more than 
 35,000,000 acres of land have been reclaimed during the last 
 thirty years. The problems of irrigation in that country com- 
 mand the broadest imperial statesmanship. They involve the 
 humane government of a dependent and conquered population 
 of over 50,000,000 of people. The\' involve the feeding of vast 
 communities heretofore liable to the horrors of famine. They 
 mean the reclamation of vast tracts of land otherwise unoccu- 
 pied, and the creation of a vast revenue from land rent to the 
 government, which is practically the sole landlord in that 
 great empire. Let us examine some of the canals of this 
 period. The greatest of all these works is the Ganges canal. 
 This cost 15,000,000 dollars and controls 10,000,000 acres, 
 of which it irrigates 1,000,000 acres, and has 456 miles 
 of main canals, 2,599 i^iles of distributaries, 895 miles of 
 escapes and drainage cuts, and its total mileage is 3,910. 
 Each distributary would be a large canal in America, and has 
 numerous masonry bridges, regulators and aqueducts along its
 
 § 18.] IRRIGATION PAST AND PRESENT. 25 
 
 line. Another great system is that of the Sirhind Canal in 
 Punjab. The diversion works consist of the usual weir 
 with under sluices in it, and regulators at the canal head. In 
 the first few miles the fall is great and there are a number of 
 drainage works, of which the Siswan superpassage carries 
 20,000 second-feet, and the Budki superpassage 30,000 
 second-feet of water. The main canal and principal branches 
 are in all 4,950 miles in length, of which 503 miles are main 
 navigable canals. Its discharge is estimated at 7,000 second- 
 feet, though it generally carries only from 3,700 to 4,000 
 second-feet. The gross area commanded by the canal is 
 4,520,000 acres, of which 800,000 acres are irrigable. The 
 above examples are sufficient to show to what an enormous 
 extent irrigation is carried in that countr3\ A great many 
 of the canals are built so large that the}^ not onh' serve for the 
 purpose of irrigation, but also of navigation. The total length 
 of canals and distributary channels included in the major 
 works amounts to 27,532 miles, and of these 2,840 miles are 
 navigable. But the navigation is only of secondary importance 
 to irrigation. The irrigation works are constructed and 
 maintained by the officers of the Irrigation Branch of the Pub- 
 lic Works Department. According to official reports there 
 were in 1890 under cultivation in India by means of irrigation 
 about 35,000,000 acres, and it is estimated that 80,000,000 
 acres in addition can be reclaimed. Thus in a thickly popula- 
 ted country, scorched by a tropical sun, the famine daj-s of the 
 past are fading away before the productive fields. 
 
 A writer in giving the history of irrigation in Bombay, 
 concludes with the following: " A husbandman who irrigates 
 needs to be upon his plot early and late. He must work in it at 
 night time in some seasons. In point of fact he must live upon 
 it. By these necessities communities have been dispersed over 
 their fields, to enjoy more freedom, more light, and fresh air 
 as well as water, a better housed people have been better occu- 
 pied, better fed, and better clothed, rendered more contented, 
 and in other ways more civilized: the whole of their life has 
 been lifted a little by raising its material base. This has been 
 accomplished under the very eyes of all ()l)servers, in the
 
 2 J IRRIGATION PAST AXD PRESENT. [§ 18, 19. 
 
 present generation, bj- means of irrigation in the Maratha 
 countr}-."^ 
 
 § 19. Africa. — Irrigation in modern Egypt involves the 
 security of the Mediterranean and the safety of the Snez Canal. 
 Although in that country it is not practiced in modern 
 times to anything like the extent to which it was carried by 
 the ancients, yet in many parts it is kept up on quite a large 
 scale. And by this means the whole evil of a nomad and 
 uncivilized population is being now checked and will eventu- 
 ally be rooted out. The population of the Soudan is not more 
 addicted to wandering or war than any otherof their cogeners 
 in Africa, but in that hot, dry climate they are under the fatal 
 necessity of moving in search of food, water, pasture and 
 shade. When these are permanently obtainable they settle 
 down into civilized pursuits of life, own property, pay taxes, 
 choose rulers and buy from manufacturers. The ever advanc- 
 ing boundary of irrigation has always been found in that 
 country to be the boundary of civilization and comfort. The 
 formerly ever present famine of that region is passing away 
 and the people are gradually becoming more and more con- 
 tented, and in a few years extensive armies will no longer be 
 required to keep them in order. 
 
 Even in that part of Africa which was at one time con- 
 sidered the most dangerous, desolate waste upon the face of 
 the globe — the great Sahara Desert — this art of irrigation 
 within the last few years has brought about changes which 
 fifty years ago would have been regarded as absolutely 
 impossible. This desert is far from flowing streams, and the 
 water is obtained by boring artesian wells. For the purpose 
 of this work we will select but one section of that country, 
 which is the most remarkable example of reclamation by 
 means of artesian well w^ater that can be found in the world, 
 but which is found in the Desert itself, in the provinces or 
 departments of Algeria, under French rule. The area offici- 
 ally given of French Algeria is 184,465 square miles. The 
 outlaying portion is put at 135,000 square miles. In this 
 
 1 3 Irrigation Age 178.
 
 §19,20.] IRRIGATION PAST AND PRESENT. 27 
 
 total of over 359,415 square miles, one half belongs to the 
 Sahara or desert portion. The European population in 1887 
 was about 250,000; the natives and naturalized were 3,228,- 
 549, making a total of 3,578,549. Cultivation b}' means of 
 flowing well waters has been sedulously fostered by the French 
 colonial government, for both political and economic reasons. 
 Such wells, as a means of reclamation, began s^'stematically 
 to be bored in 1857, the French engineer, M. Jus, having 
 demonstrated in 1856 that the Desert was endowed with 
 large supplies of under-ground water. The total number 
 of wells bored since that date in the departments of Algiers, 
 Oran and Constantine is stated at 13,135. These wells 
 range from seventy-five to four hundred feet in depth, and 
 the low pressure common to the majority of them forces 
 the water over the small board casings to a height of about 
 two feet above the ground. The waters are then collected in 
 small ditches which convey them to the vineyards, date trees 
 and fields of millet, wheat and other grain which comprise the 
 chief products of that country. In all, about twelve million 
 acres have been reclaimed in this way. The government 
 bores at least one tenth of the whole number. As an illus- 
 tration of the reclamation brought about by this method of 
 irrigation by artesian wells, the following figures from a 
 report in 1885 will be of value, but they relate solely to the 
 cultivation of the grape for wine-making purposes: In the 
 Province of Algeria there are 60,382 acres ; in Constantine 
 25,021 acres; in Oran 26,114 acres. Thus when we see 
 what irrigation has done in Africa, notwithstanding its burn- 
 ing winds and scorching sun, its possibilities seem to be 
 almost limitless. 
 
 §20. Irrijjjalion in oilier ( omit ries.— Irrigation in Italy, 
 with its densely populated communities, means the pros- 
 perity of the Italian Kingdom. The great plains and val- 
 leys of the Po and other rivers of that country are almost 
 entirely subjected to a systematic irrigation, which prodig- 
 iously increases their fertility. The extent of irrigated lands 
 in the valley of the Po is estimated at over five million 
 acres. Piedmont, Lombardy and Venitia are networks of irri-
 
 28 IRRIGATION PAST AND PRESENT. [§ 20, 21. 
 
 gating canals, crossing over and under each other, threading 
 their way in all directions, bringing water to almost every field. 
 
 In France and Spain irrigation is an insurance on an 
 ancient agriculture and the prosperity of great agronomic 
 interests. It is as much an important feature to agriculture 
 in those countries to-day as it was in the time of the ancient 
 Romans, many of whose works still exist, and some of which 
 are still in use. 
 
 In British Australia the irrigation interests were only 
 actively begun in r88i, but they have already become a very 
 important feature of agriculture in that country. Several 
 large canals have recently been completed, and now something 
 over ten million acres are under cultivation, which, without 
 irrigation, owing to the hot dry climate, would have remained 
 in its barren state. The works are constructed both by the 
 government and by private enterprise. 
 
 Enough has been said to show that in a hot, dry country 
 like Africa, and in as thickly populated countries as Egypt 
 and India, the art of irrigation is a matter of great national 
 importance to ward off famine, which would surely follow its 
 abandonment. The waters of the rivers, which would natur- 
 ally waste themselves in the sea, are diverted from their 
 courses and conducted over the land to aid in saving starving 
 humanity. 
 
 §21. Irrigation in the United States— The Arid Rei^ion.— 
 
 So far as the practice of irrigation is concerned in the United 
 States, no such serious questions as those last mentioned have 
 ever entered into the American consideration of the subject. 
 All the people of this country could exist, and live in a 
 prosperous condition if the art was not practiced at all in the 
 United States. The question of warding off famine has never 
 yet been considered as a national issue. The part of this 
 country included within what is commonly called the rain 
 belt is large enough and productive enough to support our 
 present population and more besides. So, from this fact it 
 follows that up to the present time, irrigation has never 
 in this country taken a part in the life and death struggle 
 for existence, as it has in the more densely populated
 
 § 21, 22.] IRRKJATIOX PAST AND PRESENT. 29 
 
 countries of the old world. But as the country becomes 
 more thickly populated, it remains for future generations to 
 see what part irrigation will take in the struggle of humanity. 
 So far its employment in the United States has been more 
 from a .speculative standpoint than from a great national 
 necessity. To be sure it is practiced to make barren lands 
 bring forth crops ; and also to make other lands more pro- 
 ductive, but the persons who cultivate these lands might 
 have selected others within the rain belt of the country or 
 have followed .some other occupation. And so there has never 
 arisen in this country any question as to whether the people of 
 the United States can exist upon the products of their own soil 
 without the aid of irrigation. Is it an absolute necessity to 
 this nation ? Almost silently, without the knowledge of the 
 other fifty-six millions, a population of seven millions have 
 gone upon that portion of the United States lying outside of 
 what is known as the rain belt, west of the looth meridian, 
 and into what is known as the great Arid Region. In that 
 part of the country the artificial application of water to the 
 soil for irrigation is in a greater or less degree, according to 
 the locality, a necessity for agriculture or horticulture. Thus, 
 the "Irrigation Empire" has grown up before us, without its 
 magnitude and its vast possibilities oeing known until within 
 the last five years. Although many of the rivers of the Arid 
 Region of the United States are large, and rise to a height 
 sufiScient to insure a grand system of irrigation, no great 
 national movement towards that end has ever been attempted 
 by this government, such as the Indian government has 
 carried into eiFect. Take for instance the Ganges canal with 
 a total length of 3,910 miles, and the Sirhind with a total 
 length of 4,950 miles, built by the government of India out 
 of the very necessities of the case. What may not our govern- 
 ment also do, when necessity urges it to action in this line ? 
 
 § 2'-i. The Stall's iiicludiMl within the Ariil llei^ion.— 
 
 The Arid Region of the United States covers an area of 
 fifteen hundred miles from East to West, and one thousand 
 miles from North to Soutli. It lies between the looth 
 meridian and the coast ran.^c, and extends from the British
 
 30 IRRIGATION PAST AND PRESENT. [§ 22, 23. 
 
 possessions to Mexico. It has one million square miles or 
 six hundred million acres, upon which nothing can be grown 
 without irrigation. Its area comprises one-third of the entire 
 United States. All of Arizona, New Mexico, Utah, Wyoming, 
 Idaho, Colorado and Nevada, and portions of North and 
 South Dakota, Nebraska, Kansas, Texas, Montana, California, 
 Oregon and Washington lie within this region. The Secre- 
 tary of the Interior, Hon. John W. Noble, in his report 
 for the year 1891, estimates that 120,000,000 acres now desert 
 may be redeemed by the various methods of irrigation. The 
 states above named have now a population of between eight and 
 nine millions of inhabitants, which can be increased many fold; 
 and it is estimated that these new arid lands will in the course 
 of a century sustain inhabitants to the number of nearly the 
 whole of the present population of the United States . The pro- 
 duction of this vast region in cereals will be practically unlim- 
 ited under a system of irrigation to which this entire region with 
 its numerous streams, steepacclivities,deepsnows, natural drain- 
 age, and great extent of rich valley lands is naturally adapted. 
 
 § 23. The First of Modern Irrij^atiou in the United 
 
 StJltes.— Irrigation has been practiced in the State of Califor- 
 nia ever since the establishment of the missions by the Padres, 
 nearly a century ago. The mission at San Diego was estab- 
 lished in 1769, and one of the first things done was to construct 
 a canal or acequia, for the purpose of conveying water to the 
 growing crops and the orchards and vineyards that were 
 planted from seeds and cuttings brought from Mexico. To this 
 day about many of the old missions may be seen the ruins 
 of the systems of reservoirs and acequias which were built 
 by the Indians under the instructions of the Catholic mission- 
 aries, who had learned the value of irrigation in Mexico, as 
 well as the best manner in which to divert the waters from the 
 natural streams and convey it to the point where it was to be 
 used. There is no question but that modern irrigation, as 
 known in the arid region of the United States by white Eng- 
 lish speaking people, was begun by the Mormon pioneers in 
 Utah, in 1847. They, by force of circumstances, had been led 
 to make their homes in the very midst of the great arid west.
 
 § 23.] IRRIGATION PAST AND PRESENT. 31 
 
 The President of that people, Wilford Woodruff, in his speech 
 before the Irrigation Congress which met in Salt Lake City 
 on the 15th to 17th of September, 1S91, related the circum- 
 stances of the practice of the art which has reclaimed so many 
 thousands of acres of barren lands in the west, and is destined 
 to play such an important part in the future of this country. 
 He stated the circumstances of this beginning as follows: 
 "Fifty-one years ago, the twenty-fourth of last July, I entered 
 this valley with one hundred and forty-three emigrants, or in 
 other words, pioneers. We were led by President Young. 
 This country that we arrived upon was called the great 
 American Desert, and certainly, as far as we could see, it did 
 not deviate from that in the least. We found a barren desert 
 here. There was no mark of the Anglo-Saxon race, no mark 
 of the white man— everything was barren, dry and desert. 
 We pitched our camp a little to the southeast from here, about 
 eleven o'clock in the day. We had a desire to try the soil, to 
 know what it could produce. Of course all this company^ 
 nearly the whole of us — were born and raised in the New Eng- 
 land States, Vermont, Maine, Massachusetts, Connecticut, and 
 had no experience in irrigation. We pitched our camp, put 
 some teams on to our plows and undertook to plow the earth, 
 but we found that neither wood nor iron was strong enough to 
 make furrows in this soil. It was like adamant; of course we 
 had to turn water on it. We would have done anything. 
 We went and turned out City Creek; we turned it over our 
 ground. When we came to put our teams upon it, of course 
 they sank down in the mud. We had to wait until this land 
 dried enough to hold our teams up. We put in our crops and 
 staid here In the meantime President Young laid out this 
 city, as you see it to-day, in tlie midst of sage brush, with- 
 out a house within hundreds of miles of us. Now, what I 
 wish to say is this: You gentlemen come here to-day, you see 
 the city, you go through the country. Here are thousands of 
 miles, I might say, through these mountains filled with cities, 
 towns, villages, gardens and orchards, and the produce of the 
 earth that sustains the people. Without this water, this irri- 
 gation for which you have met here to-day, this country would 
 be as barren as it was in 1847, as we found it. Whoever
 
 32 
 
 IRRIGATION PAST AND PRESENT. [§ 23, 24. 
 
 occupies these lands, lias got to have the water to perform the 
 work. We have had to learn by experience, and all that we 
 have obtained in these mountains has been by irrigation." 
 
 § 24. Same.— The Mormons. — Thus, on the 24th day of 
 July, 1847 this art of irrigation was first introduced by 
 English speaking people in the arid region of the United 
 States. From that time on the Mormons realized that they could 
 succeed only by building ditches and diverting the streams of 
 water from their natural channels upon their arid lands. As 
 time progressed their work became more and more systema- 
 tized, and better methods were obtained. Their policy caused 
 them to spread out and colonize, and for more than thirty 
 years their settlements have extended for hundreds of miles 
 from the central point at Salt Lake City. The showing in 
 the recent United States Census Bulletin, prepared by Mr. F. 
 H. Newell, Special Agent of the Census Bureau for the collec- 
 tion of statistics upon the subject of irrigation, gives a fair 
 conception of what the Mormons have accomplished within 
 Utah, and the following table is taken from his report: 
 
 Beaver 
 
 Boxelder . . . 
 
 Cache 
 
 Davis 
 
 Emery .... 
 
 Garfield 
 
 Grand 
 
 Iron 
 
 Juab 
 
 Kane 
 
 Millard 
 
 Morgan.:. . . 
 
 Piute 
 
 Rich 
 
 Salt Lake . . . 
 San Juan. . . 
 
 Sanpete 
 
 Sevier 
 
 Summit 
 
 Tooele 
 
 Uinta 
 
 Utah 
 
 Wasatch.. . . 
 Washington 
 Weber 
 
 Total 
 
 Number of irri- 
 gators. 
 
 Total irrigated 
 
 acreage in 
 
 crop. 
 
 359 
 908 
 
 585 
 
 264 
 82 
 56 
 
 193 
 «5 
 
 107 
 
 304 
 233 
 143 
 184 
 
 1,264 
 38 
 
 1. 155 
 311 
 276 
 267 
 186 
 
 1,161 
 
 259 
 176 
 928 
 
 9.724 
 
 7,682 
 10,472 
 
 30,923 
 12,866 
 
 7.344 
 2,234 
 1,139 
 3.539 
 1,946 
 
 1,798 
 8,199 
 5,298 
 
 5,299 
 17,266 
 
 25.392 
 
 777 
 
 30,938 
 
 11,547 
 
 10,140 
 
 5.766 
 
 7,611 
 
 25,236 
 
 6,475 
 
 2,251 
 
 21,335 
 
 263,473 
 
 Average size of 
 
 irrigated farms 
 
 in acres. 
 
 38 
 29 
 34 
 22 
 28 
 27 
 20 
 18 
 23 
 17 
 27 
 23 
 37 
 94 
 20 
 20 
 27 
 37 
 37 
 22 
 
 41 
 22 
 
 25 
 13 
 23 
 
 27
 
 § 24, 25.] IRRIGATION PAST AND PRESENT. 33 
 
 It will be noticed that the average size of irrigated farms is 
 very small. In fact it is the smallest of any state or terri- 
 torj^ of the arid region. This shows that irrigation in this 
 territory- has been systematized and a high grade of cultiva- 
 tion attained. 
 
 §25. Same. — Continued. — It was not until 1870 and 1871 
 that the first co-operative and associative eflforts in the 
 direction of irrigation outside of Utah were accomplished, 
 although it had been carried on upon a small scale in 
 sections of every western state and territorj- prior to those 
 dates. These were successfully initiated at Greely, Colo- 
 rado, and at Fresno, California. In the early part of the 
 year 1875 Congress ordered the first investigation to be 
 made, which involved the examination of the San Joaquin 
 Valley and its capacity for reclamation and irrigation purposes. 
 About the same time Riverside, the first citrus growing 
 community, was established in southern California. For 
 ten years following 1875 no notice was taken of the irri- 
 gation growth by Congress or by the country' at large, and 
 very little by the states interested. In 1885 the Department 
 of Agriculture employed Richard J. Hinton to prepare a 
 report on irrigation in the United States, and having made a 
 careful investigation of the subject Mr. Hinton in 1886 
 reported that the area of land reclaimed by irrigation and 
 under ditch at that time was about 5,500,000, and a large 
 proportion of that "under ditch" was only used to water 
 natural grass for forage and cattle feeding. 
 
 In 1888 Congress enacted the first irrigation legislation, 
 providing for what is known as the " Irrigation Survey," 
 under the direction of the United States Geological Survey. 
 It also ordered through the Senate an inquiry by a special 
 committee into the condition of the arid lands and their 
 possible reclamation by irrigation. A change in policy 
 occurred in 1889, by means of which appropriations were 
 withheld from the irrigation survey so called, and a small 
 appropriation of $20,000 was made for an investigation into the 
 artesian and under-flow waters of the great plains region east 
 of the foot hills and west of the 97th meridian. From the
 
 34 
 
 IRRIGATION PAST AND PRESENT. [§ 25, 26. 
 
 time of the report of Mr. Hinton in i886 to the present year, 
 irrigation projects in the arid west, without any direct con- 
 gressional movement in that direction, but by state and 
 private enterprise, have advanced with amazing rapidity, and 
 during this period another important method has been added 
 whereby the supply of water has been increased. I refer to the 
 artesian wells, which subject will be discussed in a later section. 
 
 § 26. Census Irrigated Land in 1889 — Talue of Water. — 
 
 According to the extra Census Bulletin No. 23, issued Sep- 
 tember 9th, 1892, the following table gives the number of 
 irrigators, actual area irrigated and the average size of irrigated 
 farms in the arid region in i88g: 
 
 states and Territories . 
 
 Arizona 
 
 California 
 
 Colorado 
 
 Idaho 
 
 Montana 
 
 Nevada 
 
 New Mexico 
 
 Oregon 
 
 Utah 
 
 Washington 
 
 Wyoming 
 
 Sub-humid Region 
 
 Total , 
 
 Number of 
 
 irrigators in 
 
 1889. 
 
 1,075 
 13,732 
 9>659 
 4,323 
 3,706 
 1,167 
 3,085 
 3,150 
 9,724 
 1,046 
 
 1,917 
 1,552 
 
 Area irrigated 
 in ISSy, 
 in acres. 
 
 Average size of 
 irrigated farms 
 in acres, in 1889 
 
 54,136 
 
 65,821 
 1,004,233 
 
 890,735 
 217,005 
 350, 5«2 
 
 224,403 
 
 91,745 
 
 177,944 
 
 263,473 
 
 48,799 
 
 229,676 
 
 66,965 
 
 3,631,381 
 
 61 
 
 73 
 92 
 
 50 
 
 95 
 
 192 
 
 30 
 56 
 27 
 47 
 119 
 
 43 
 
 67 
 
 Also the same in what is known as the Sub-humid Region, 
 between the 97° and the 100° longitude. 
 
 states. 
 
 Number of Area irrigated Average size of 
 
 irrigators in in 1889, irrigated farms 
 
 1889. in acres. in acres, in 1889 
 
 North Dakota 
 
 i 
 7 1 445 64 
 189 1 15,717 i S3 
 214 , 11,744 ; 55 
 519 20,818 ' 40 
 623 18,241 29 
 
 South Dakota 
 
 
 Kansas 
 
 Texas 
 
 
 Total 
 
 1,552 66,965 j 43 

 
 § 26, 27, 28.J IRRK4ATI0N PAST AND PRESENT. 35 
 
 The preceding tables were made up from statistics gathered 
 and prepared bj- Mr. F. H. Newell, special agent of the 
 Census Office for the collection of statistics of irrigation, under 
 the direction of Mr. John Hyde, special agent in charge of 
 statistics of all branches of agriculture. And it must be borne 
 in mind that owing to the tendenc)^ to describe as irrigated 
 all land to which water has been applied within an}' recent 
 period bj- artificial means, or which is merely under ditch, 
 and even land for which water rights are claimed but upon 
 which perhaps no water had at that time been actually 
 applied, the Census Office absolutely restricted itself in its 
 official bulletins to land on which crops were actually raised 
 by the artificial application of water during the year i88g. 
 That the above is a very conservative estimate there can be 
 no question, onl}- the irrigated acreage in crop being included, 
 and not acreage irrigated from which crops were not obtained 
 in 1889. 
 
 §27. Estimate of tlie Department of Agriculture iu 1891. 
 
 The area under ditch for 1891 was estimated in the report 
 of the office of irrigation inquiry at 18,533,107 acres. The 
 area under actual cultivation for the same year at 8,049,000 
 acres. A farther estimate was made of the area to be covered 
 by works projected, then partiall}^ constructed, at a total of 
 about 6,000,000 additional acres. The figures given, though 
 necessarily estimates, are well within the facts. The statistics 
 were gathered b)' means of circulars, correspondence and 
 personal inquiry, and may be depended upon as reliable. It 
 shows an enormous growth of the practice of irrigation in the 
 western country. Of course this last estimate is not confined 
 to the lands alone upon which a crop was raised in the year 
 1891, but to all lands that were then, or liad been, under 
 cultivation b}' means of the artificial application of water, by 
 the diversion of the natural streams, or by artesian wells. 
 
 The canals were constructed and the water was diverted 
 from the natural streams entirely by private enterprise, no 
 government or state aid having been given. 
 
 § 28. The Water Supply. — The acreage at present under 
 irrigation may be regarded as approaching the maximum
 
 36 IRRIGATION PAST AND PRESENT, [§ 28. 
 
 possible limit with the present supply of water and the 
 method of utilizing it. As a general statement it may 
 be said that throughout the arid region there is hardly 
 a stream of small size, from which water can be conducted 
 readily upon arable land, that is not utilized to its full 
 capacity during the summer season. To be sure, in a great 
 many parts irrigation is still in the first steps of devel- 
 opment, not having advanced beyond the simple and wasteful 
 method of flooding the ground. The irrigators do not take 
 into consideration the fact that by this means not only is a 
 great portion of the water wasted, but the results obtained 
 are often of less value than would have been the case if better 
 methods were adopted. For by the use of too great an amount 
 of water some of the most valuable species of grasses and 
 other vegetation are drowned out, coarse swamp grasses and 
 weeds taking their places. Thus the employment of too much 
 water by one man not only diminishes the supply for other 
 persons desiring its use, but also injures the property of the 
 user. Be this as it may, the fact remains that the w^ater supply 
 for the area of land to be irrigated is each year becoming 
 smaller and smaller all over the arid region, and taking the 
 country as a whole there are very few localities, if any, where 
 as in the past a farmer can divert water unclaimed by others, 
 and b}' means of a simple ditch constructed by his own labor 
 and that of his neighbors bring his farm under a system of 
 irrigation. It is, under this state of circumstances, becoming 
 a very serious question as to where the additional supply of 
 water to meet future requirements is to come from. In 
 1888 and 1889 there was a deficiency of the water supply for 
 the land then under cultivation along most of the streams. 
 By a comparison of all the facts it is evident, taking the past 
 decade as a whole, that there was an unusually large suppl}' in 
 the streams in 1885 and 1886, and that this amount decreased 
 vear by year, although by no means constantly or at the same 
 rate in all localities throughout the arid region. Thus it 
 happened during the very period of time while the area under 
 irrio"ation was rapidly increasing the water supply as a whole 
 was decreased, and during the years of drought, viz., 1888 
 and 1889, and in some localities in 1890, there was a general
 
 § 28, 29.] IRRIGATION PAST AND PRESENT. 37 
 
 loss of crops upon irrigated lands, due to the fact that a larger 
 acreage was under cultivation than could be irrigated by the 
 supply of water of those years, by means of the methods then 
 in use. Not only was there loss of crops in many parts, but 
 the areas which were irrigated and from which crops were 
 obtained did not in many instances receive a sufficient amount 
 of water to produce large or satisfactory results. And as a 
 result, owing to the insufficiency of water during the latter 
 part of the season, some of the cereal j>lants were cut for forage, 
 or were so poor that they were hardly worth gathering for any 
 purpose. 
 
 § 29. Same. — Increase in Supply. — The simple but very 
 important fact that the area which can be irrigated is dependent 
 upon the amount of water flowing in the streams, is often 
 ignored in the general discussions of irrigation and its possi- 
 bilities. It is often taken for granted that simply because 
 there are vast areas of fertile land along a river some of which 
 has been irrigated profitably, larger and larger areas will, 
 with the progress of settlement, be btought under cultivation 
 to an indefinite extent. The assumption cannot be correctly 
 made that since a river of a certain locality drains a large 
 area its waters must be proportionately abundant. It is 
 unfortunately the case that many rivers of the arid region 
 occupy a prominent place upon the map but carry a very 
 small amount of water for at least the cropping period of 
 the year, and then the water is all utilized or needed for 
 the land now wholly or in part under cultivation. There are 
 four methods by which the present su])ply may be increased, 
 so that an additional acreage can be irrigated. First, it will 
 be necessary to enact stringent laws to compel the greatest 
 economy in employing the water and to prevent waste in 
 order to cover larger areas; second, to store the flood and 
 waste waters of the non-irrigating season so that it can be 
 used when required ; third, iiKjre artesian wells must l)e dug 
 so as to irrigate certain lands that are now l)arren, and to 
 help out the irrigation of others only partially irrigated ; 
 fourth, the greatest increase in acreage cultivated by irriga- 
 tion can be brought about l)y the construction of vast systems
 
 38 IRRIGATION PAST AND PRESENT. [§ 29, 30 
 
 of canals to divert the water of the larger rivers of the coun- 
 try upon lands which are not watered. This last of course, 
 can be accomplished only by the construction of large works, 
 involving the expenditure of a vast amount of capital. At 
 present the water is taken from only the smaller streams, 
 for the reason that it requires less capital and can be taken 
 out much easier. The great streams of the country remain 
 comparatively untouched for the purpose of irrigation. But 
 the time is coming when their forces will be called in to 
 assist in this enterprise as one of the great necessities of the 
 country. 
 
 § 30. Suppression of Wastliii^ Waters. — There is no doubt 
 as to the power of the legislatures of states and territories to 
 enact laws, as many have done, for controlling and supervising 
 the distribution of water from the streams running within 
 their respective boundaries, and used for the purpose of irriga- 
 tion, either by appropriators or those claiming the right to the 
 use of the waters by virtue of being riparian owners, and thus 
 preventing parties from causing wastage by diverting more 
 than is actually needed for the purpose for which the appro- 
 priation was made. In fact all the states affected by whole 
 or partial aridity in their agricultural development have taken 
 some action in the direction of regulating and controlling the 
 use of the waters required for the purpose of irrigation . State 
 Engineers, Boards of Public Control, or Irrigation Commission- 
 ers, are provided for this purpose either by the constitutions 
 of the respective states or by enactments of their legislatures, 
 the duties of which officers are, as their names indicate, to 
 control, supervise, and in some states adjudicate, all questions 
 relating to waters and water rights. Any one dissatisfied with 
 the decisions of the board can have recourse to the courts. 
 But especially of late years, when every year the area of 
 land for which water is needed is increasing and the 
 supply is constantly diminishing, it has been the policy of 
 legislatures and courts as far as possible to suppress all 
 wastefulness or wasteful methods in the use of waters. In 
 the early da3's a prior appropriation was esteemed to cover 
 all water in sight, whether it was needed or not. But the
 
 § 30, 31.] IRRIGATION PAST AND PRESENT. 39 
 
 priuciple of "beneficial use " as the population increased 
 soon put an end to that conception. More stringent 
 regulations may still be made in places, which will benefit 
 not only those who have at present water rights in a certain 
 stream, but also those desiring to divert water from the 
 same. There are many appropriators who still demand the 
 amount of water claimed by them at first, although that 
 amount is many times more than is actually needed by them 
 for the purpose to which they apply it. Having no know- 
 ledge whatever of the proper use of water as an aid to agri- 
 culture when they first made the appropriation, and there 
 being at that time an entire absence of any written authority 
 on the subject from which they could learn, and water then 
 being plentiful, it followed as a matter of course that settlers 
 adopted very wasteful methods in the use of it. Many of 
 them still keep up those methods notwithstanding the fact 
 demonstrated b}' practical experience that by so doing they 
 are raising smaller and poorer crops than they could raise by 
 using the water more sparingly. In many places it has been 
 shown that from a given stream five or six times as much 
 land could be irrigated as had been thought possible in early 
 days. But even with the present various enactments for the 
 prevention of these wasteful methods the natural flow of 
 streams is becoming daily more and more inadequate to 
 meet the demand, and finally it has become apparent that 
 if the progress of the irrigation development is not to be 
 seriously checked more stringent measures will have to be 
 enacted, or other sources of suppl}' must be sought.^ 
 
 § 31. Storage Reservoirs. — The adoption of systems of 
 storage for the conservation of the flood waters now annually 
 going to waste has been agitated for some time past. Irri- 
 gators look forward to this method as one of most effectual 
 means of obtaining relief from present troubles and uncer- 
 tainties. Progress in this direction will, however, be 
 necessarily slow, from the fact that in an undertaking of 
 
 1 See Chapter VI., Section 165, cases cited, Wliceler vs. Northern 
 Colorado Irr. Co., 10 Colo. 5S2; 17 Pac. 487.
 
 40 IRRIGATION PAST AND PRESENT. [§ 31, 32. 
 
 this kind the outlay of capital before an^^ return can be 
 realized must be very large. Efforts have been made to 
 have Congress build these reser^^oirs, but as yet without 
 avail; and nothing has been done by the general govern- 
 ment beyond a few surveys and measurements made by 
 the Geological Survey (whose operations were discon- 
 tinued) and the enactment of the law of March 3d, 1891, 
 sections 18-21, which provides for, among other things, a 
 reservation for rights of way for canals, and for sites for 
 reservoirs. 
 
 Quite a number of private reservoirs have been built with 
 varying success throughout the west. In some sections of 
 the country, such as parts of Arizona and New Mexico, owing 
 to the phj^sical features of the territor)^ irrigation must depend 
 absolutely upon the storage of the water supplies. Also there 
 are certain sections upon the great plains where this can be 
 successfull}' done. But this system has been most satisfactorily 
 applied upon small mountain streams which flow down into 
 valleys where irrigation is needed. Without a storage S5^s- 
 tem water enough to irrigate thousands of acres runs to waste 
 in the winter and spring, instead of being hoarded up for the 
 summer season, when it becomes of inestimable value at a 
 time when the stream itself is so reduced in volume as to be 
 insufficient to supply perhaps two or three farmers who lay 
 claim to its waters b}' prior appropriation. 
 
 § 32. Same. — Legal (/Ontemplation. — There are necessarily 
 legal complications that must be decided before any large 
 scheme of this kind can be successfully projected. On nearly 
 every stream throughout the arid region more water is 
 claimed than is available, and were a man or a corporation to 
 store any of the flood waters, and restore these to the stream 
 in time of drought, the question would at once arise: to whom 
 do these waters legally belong, and how are they to be dis- 
 tinguished from those which flow naturally into the stream 
 and which have all formerly been appropriated ? And if these 
 questions were satisfactorily solved, then come other and more 
 difficult problems as to the practicability or possibility of the 
 owners of this stored water actually recovering it, especially
 
 § 32.] IRRIGATION TAST AND PRESENT 41 
 
 if to bring it upon new desert lands and out in the valleys 
 the stream by which this stored water was conveyed flowed 
 by the headworks or over the diverting dams of a number 
 of ditches, the several owners of which were in need of 
 water and claimed an appropriation of the waters of the 
 stream to an extent much greater than thej' were then using. 
 Before any such scheme can be successful it will be necessary 
 to ascertain not onl}^ the amount of water naturally flowing 
 in the stream day by day and year by year, and all the legal 
 claims to the water, but also the actual usage of the same by 
 the respective individuals, and the different amounts which 
 each should justl)^ receive. There is a wide discrepancj'' 
 between the quantit}' of water which a man claims by virtue 
 of his appropriation and that which he usually actually 
 receives, for his recorded claim may apparently give him more 
 water than flows in the stream, while he actually receives only 
 a small portion. If, therefore, the company storing the water 
 were compelled to suppl}^ all those having claims to the stream 
 there would be none left for the companj^'s use, and conse- 
 quently the storage enterprise would be a failure. 
 
 Agricultural development, therefore, bj' the use of stored 
 water, or even by the more economical use of present sup- 
 plies, must rest upon the cordial co-operation of all the 
 parties who are at present enjoying the use of water from the 
 same source. The difficulty of such co-operation is fully 
 appreciated by the people of the arid region, and many 
 plans have been discussed for bringing this about, either by 
 state control of all the waters, which plan, as we shall see, 
 has been adop,ted 1)}^ the states of Colorado and Wyoming, 
 or by the formation of districts exercising certain powers, 
 an example of which is the California district law ; or by 
 municipal corporations working towards the same end. The 
 great stumbling block is the fact that so many individuals of 
 different minds and opinions have property rights in the 
 waters of the streams, which must be extinguished amicably 
 or by the exercise of the right of eminent domain, which in 
 the recent district law of Nevada is forl)id(len. Tliat the 
 various owners of the waters do not at once co-operate in 
 some of these j^kins is not to be laid wlioll}- to individual
 
 42 IRRIGATION PAST AND PIIESENT. [§ 32, 33. 
 
 cupidity or lack of public spirit, but rather to the fact that 
 to each irrigator this matter is of most vital importance. The 
 value of each man's property appears to be at stake, and that 
 which he has acquired by long years of toil and hardship is 
 not to be given up at once on any plea of the good of the 
 community, especially if, to him, the benefits to be derived 
 seem doubtful and uncertain. The farmers also have a natu- 
 ral fear of being in some way imposed upon in making any 
 radical changes, and are harassed by the dread of falling into 
 the grasp of monopolies, and thus, perhaps, prefer to endure 
 present evils rather than to encounter those which are unknown. 
 
 § 33. Artesian Wells. — Artesian wells result usually from the 
 drilling or piercing of pervious strata filled with water, which 
 is held from escaping by impervious layers both above and 
 below. The hydrostatic pressure on this water, owing to the 
 inclination of the bed, is sufiicient to force it to the surface. 
 In general the use and value of water from artesian wells is not 
 so desirable for irrigation as is the water from rivers and creeks, 
 from the fact that the latter usually contains a larger amount 
 of silt, which serves to enrich the land and prevent loss of 
 fertility. Artesian well water, on the other hand, is almost 
 always clear, although it sometimes carries a quantity of 
 mineral salts in solution, ranging from those nearly as soft as 
 rain water to the strongest brine. But in spite of these facts 
 there are many wells the water of which may be used for 
 irrigation, and thousands of acres of land have been reclaimed 
 by this means. The following table gives the total number of 
 artesian wells, the average depth in feet, the average discharge 
 in gallons per minute, average area irrigated per well, and 
 total area irrigated in June, 1890, according to Census 
 Bulletin, No. 193, issued June nth, 1892, prepared by Mr. 
 F. H. Newell, Special Agent:
 
 .4 33.] 
 
 IRRIGATION PAST AND PRESENT. 
 
 43 
 
 
 Total 
 Number. 
 
 Average 
 depth in feet. 
 
 Wells used in Irrigation. 
 
 states aud 
 Territories. 
 
 Average 
 disch in gal. Average area 
 per minute, ; i^g^ited 
 per well in 
 1 acres. 
 
 Total area 
 
 irrigated in 
 
 acres. 
 
 California . . . 
 
 Colorado 
 
 Idaho 
 
 Kansas 
 
 Montana 
 
 Nebraska .... 
 
 Nevada 
 
 N. Dakota. . . . 
 
 Oregon 
 
 S. Dakota. . . . 
 
 Texas 
 
 Utah 
 
 Washington. . 
 Wyoming 
 
 3,2IO 
 
 596 
 28 
 
 59 
 
 '4 
 
 33 
 461 
 
 6 
 
 527 
 
 534 
 
 2,524 
 
 9 
 
 5 
 
 248.00 
 250.00 
 
 83.00 
 202.00 
 366.00 
 247.00 
 215.00 
 196.00 
 
 70.00 
 216.00 
 292.00 
 146.00 
 127.00 
 210.00 
 
 164.00 j 18.63 
 39.00 18.01 
 11.00 13.21 
 44-00 13-71 
 28.00 3.00 
 13.00 1 1. 00 
 
 6.00 i 1. 00 
 21.00 2.00 
 15.00 4.00 
 51.00 6.68 
 19.00 3.00 
 26.00 4.73 
 89.00 
 
 8.00 
 
 38,378 
 
 6,213 
 
 185 
 
 329 
 
 18 
 
 7 
 
 20 
 
 20 
 
 12 
 
 474 
 
 438 
 
 5,802 
 
 Total 
 
 8,097 
 
 210.41 
 
 j " ■ 
 54.43 1 13.21 
 
 51,896 
 
 The report of the office of irrigation inquiry published in 
 January, 1892, estimates the total number of wells in 1891 to 
 be 13,690, the greatest number being sunk in the years of 
 iSgo-'gi in Colorado, New Mexico and South Dakota. In 
 California the number is placed at 3,500. Many of the wells 
 in that state are very large, and discharge without ceasing 
 from a half to two millions and a half gallons daily. This 
 .is sufficient to irrigate 640 acres of land. When it is known 
 that without these works the land is practically^ valueless, 
 worth at most $2 or $3 an acre, and with it worth from $100 
 to $200 an acre, an idea may be formed of the importance and 
 value of the artesian system in helping out the water supply 
 for irrigation in this country. There are many advantages 
 also in a farmer owning his own source of water supply, 
 instead of having to depend upon ditches or canals owned 
 by others. Ikit the waters of artesian wells must not be 
 allowed to run to waste. It is found from experience that 
 when there are a great many of tliese wells in the same region 
 many have gone dry, wliik- the How of otliers has been 
 materially lessened; whicli proves conclusively that they
 
 44 IRRIGATION PART AND PRESENT. [§ 33, 34, 35. 
 
 obtain their suppl}' from the same source. The legislatures 
 of several states have enacted laws providing that when the 
 flow is not necessary for use the well must be shut off, and 
 prescribes severe penalties in case of failure to do so. 
 
 § 34. Supply from the Large Rivers. — The last method 
 for adding to our supply of water in order to increase 
 the acreage that may be cultivated by its artificial applica- 
 tion is the construction of large and expensive works, to 
 divert the w^ater from large rivers upon the lands. Although 
 in the arid region there are a great number of small canals 
 which take the waters from the inferior streams, there are no 
 large canals that take the waters from the large rivers. These 
 works can only be constructed at immense cost, and eventually 
 the government will either have to undertake them, or offer 
 some special advantage to induce private enterprise to do so. 
 Although we have no such rivers in the arid region as the 
 Ganges in India, still a few, such as the Columbia, Missouri, Rio 
 Grande and Sacramento, discharge large volumes of water, 
 much of which may at some future time be utilized. There 
 is no doubt but in the matter of irrigation we are behind 
 Europe, Asia, and even Africa, not only in the extent of our 
 works, but in their cost and engineering features. We are 
 not only behind the marvelous nations of antiquity, but also 
 behind the people of modern India, Algeria, Itah- and Spain. 
 The explanation of this is, as before stated, that the time has 
 not yet arrived when the subject of irrigation has become a 
 great national question or national necessity as it has in the 
 more densely populated countries of the old world. 
 
 § 35. The Present t'oiidition of the Art of Irrigation in 
 the different States and Territories.— The laws concerning 
 water and water rights var}' exceedingly. In some of the 
 states the common law rights of a person who owns land ad- 
 joining a stream or through which it runs are abolished; in 
 others they are allowed. This of course brings about a conflict 
 between those who claim the water b}- right of appropriation 
 and the riparian owners who claim by virtue of ownership the 
 right to have the stream flow as it was wont, in its natural 
 channel, undiminished in quantity, and undeteriorated in
 
 §35.] IRRIGATIO^• PAST AND I'RESENT. 45 
 
 quality. Then again, in the construction of irrigating ditches 
 a ver}- small proportion are constructed by outside capital, 
 but are dug by the irrigators themselves, acting individ- 
 ually and taking the water directly from the natural streams, 
 or in co-operation, by several farmers joining their rights and 
 digging a ditch, and then each individual taking from the 
 canal to the extent of his right. Thus the ownership is almost 
 wholly within the hands of the farmers, and the administra- 
 tion of water, if the general lack of system can be called such, 
 is wholly within the control of men who are directly bene- 
 fitted. Owing to the multiplicity of ditches deriving water 
 from the same source or stream, and the many separate inter- 
 ests involved, there constantly arise conflicts between irriga- 
 tors as to the distribution of the water, especially during 
 seasons when the supply is scanty. Disputes of this character 
 are settled sometimes by private arrangement, but more often 
 by recourse to the courts. The expense of lawsuits for the 
 maintenance of water-rights is a heavy burden to the farmer, 
 and there is a wide spread complaint of the unstability of the 
 value of the property. As the land is absolutely worthless in 
 portions of the arid region without water, the commencement 
 of a lawsuit involving perhaps his entire water right causes the 
 value of the land to fluctuate to a greater or less degree, and 
 as the practice of irrigation increases and there is each year a 
 greater demand for water, this is more and more likely 
 to occur. The necessity for better methods of settling 
 disputes and of conferring titles to use of water is beginning 
 to be strongly insisted upon by the farmer, for he now 
 appreciates that the whole value of his land depends upon an 
 absolutely unimpeachable claim to sufficient water to raise 
 his crops. There arises in the minds of all who are 
 cognizant of the facts in the case, a question as to why this 
 condition of insecurity has been allowed to exist, and why the 
 magnificent water resources of many of the rivers have been 
 allowed year after year to go to waste? There are also reservoir 
 sites in abundance, plenty of flood waters to fill them, vast 
 tracts of fertile land needing this water. Besides these, there 
 are a legion of irrigators quarrelling with each other for the 
 possession of the small amount of water available during the
 
 46 IRRIGATION PAST AXD PRESENT. [§ 35, 36. 
 
 critical season of the year. Why do not these men devote 
 their energies to saving the flood waters, thus improving their 
 own lands and making possible the development of vast 
 additional tracts? The answer to the question is plain. It is 
 all due to the fact that irrigation has grown up without any 
 order or system, each man or group of irrigators taking all 
 the water to be had and caring little for the needs of others. 
 The chief interest of the various states of the arid region 
 has been in mining, and little attention has been given by 
 public opinion or legislation to the needs and development 
 of agriculture, so that wasteful systems of water distribution 
 have grown up and fostered themselves upon the communities, 
 preventing free action and even obscuring the clear view of 
 greater benefits to be derived b}- radical improvements. It 
 will now take years to eradicate this evil, owing to the law of 
 vested rights, whereas if the United States government had 
 taken the matter in hand when the water of streams first 
 began to be used for this purpose, undoubtedly a better and 
 at least a uniform s^^stem would have been adopted. 
 
 It seems strange in looking back over the history of 
 irrigation that the Congress of the United States should have 
 enacted such uniform and explicit laws in relation to the dis- 
 posal of public lauds, and to have allowed this indispensable 
 incident to those lands to remain wholly unprovided for. If a 
 uniform system had at first been adopted by the government 
 for the disposal of the waters of the natural streams flowing 
 over the public domain the difficult question that now arises 
 would have been avoided. 
 
 § 36. Tlie Future of Irrigation in the United States.— 
 
 The da}^ is certainly fast approaching when the public will 
 understand that irrigation is not onlj' the concern of the arid 
 region, but of the whole United States. That it is not only 
 necessary in order to render a part of the countr}^ habitable, but 
 is indispensable as a means of supporting the rapidly increasing 
 population of the arid region itself, as well as aiding in sustain- 
 ing the population of the east. Instead of a narrow sectional 
 question, irrigation is becoming more and more each j'ear a 
 broad national problem.
 
 § 36.] IRKiaATION PAST AND PRESENT. 47 
 
 It is the question of our water resources that is now of the 
 most vital importance. And Congress will be compelled before 
 many j-ears to take steps for the construction of storage reser- 
 voirs, and for the great works necessar}- to add to the supply 
 of water from the great rivers, either for and on behalf 
 of the government itself, or by aiding and protecting private 
 enterprises which would spring up on all sides, if the trouble- 
 some questions concerning waters and water rights were 
 in a more uniform and settled condition. The states also 
 ought to take action by adopting more uniform provisions 
 for the protection, regulation and control of water rights. 
 Capitalists, before the}'^ embark in any of these enormous 
 enterprises, have to be reasonably sure that their interests 
 will be protected. Several of the states, notably California, 
 Colorado and Wyoming, have already taken such steps, and 
 enacted laws that will undoubtedly be highly beneficial. 
 Others will presumably follow soon. That the laws enacted 
 by the legislatures of California, Colorado and Wyoming 
 differ greatly from each other is true. But they are uniform 
 in each individual state and a great improvement over the 
 old lack of system. They are probably the best that could 
 have been adopted out of the necessities of users of the water 
 in their respective localities. (These various systems will be 
 discussed in a later portion of the volume.) 
 
 In concluding this chapter, I will only add that it has 
 been sufficiently demonstrated in past 3^ears that the art of 
 irrigation is an absolute necessity to a great portion of the 
 arid region; and that in the course of a few years it will be 
 equally recognized as a national necessity .
 
 CHAPTER II. 
 Classilicatiou of Waters. 
 
 I. PUBLIC OR NAVIGABLE 
 WATERS. 
 Section — 
 •^7. Division of Waters. 
 
 38. The Sea— Great Inland Lakes. 
 
 39. Rivers. 
 
 40. Navigable Rivers. 
 
 41. Same — Right to use waters of 
 
 42. Right to Navigation. How 
 
 Acquired. 
 
 II. RIVERS AND WATER COURSES 
 
 NON-NAVIGABLE. 
 Section — 
 
 43. Non-navigable Rivers and 
 
 Water Courses. 
 
 44. Same — continued. 
 
 45. Same— Authorities Discussed. 
 
 46. Small Lakes and Ponds. 
 Ponds. 
 Subterranean or Underground 
 
 Water Courses. 
 Percolating Waters. 
 
 47- 
 48. 
 
 49 
 
 Public 
 
 or 
 
 Navigable. 
 
 § 37. Division of Waters. — For the purposes of this work 
 waters may be divided into the following classification . 
 I' Sea. 
 
 J Great Inland Lakes. 
 
 [ Rivers Actually Navigable. 
 
 [ On Public Do- 
 { Rivers and | main of United 
 
 Water ! States, 
 courses non- | 
 
 navigable. | Owned by a 
 
 [ State. 
 
 Waters. 
 
 Private 
 or 
 Non-navi- 
 gable. 
 
 Surface. 
 
 Subterra- 
 nean. 
 
 Small 
 
 Lakes 
 
 and 
 
 Ponds. 
 
 Under 
 Ground 
 Water- 
 courses. 
 
 Percolat- 
 I Water. 
 
 C On Public Do- 
 I main of United 
 J States. 
 
 I, Owned by a 
 i State. 
 
 With defined 
 channels. 
 
 With undefined 
 
 or unknown 
 
 channels.
 
 § 37, 38.] CLASSIFICATION OF WATERS. 49 
 
 We will now proceed to take them up in their natural order 
 and discuss their special peculiarities. 
 
 T. Public or NaYi2;aljle ^Valers. 
 
 § 38. The Sea— Great lulaiid Lakes.— As the present work 
 will have very little to do with the sea, a simple definition will 
 suffice. The sea or ocean is the g-reat mass of water which 
 surrounds the land, and which probably extends from pole to 
 pole, covering nearly three quarters of the globe. ^ 
 
 A lake has been defined as a large and extensive collection 
 of water contained in a cavity or hollow of the earth. ^ 
 
 Lakes are distinguished from rivers chiefly by the fact that 
 they have no current. But the mere fact that there is a cur- 
 rent from a higher to a lower level does not make that a 
 river which otherwise would be a lake.^ 
 
 In this country the great navigable lakes are regarded as 
 public property and are not susceptible of private ownership 
 more than the sea.^ 
 
 In England and Ireland all lakes are considered private 
 property, owing undoubtedly to the fact that they are all 
 small. ^ But in this country this principle is not sufficiently 
 broad to embrace our large fresh water lakes and inland seas, 
 
 iBouvier Law Die. sub. Sea; I. sons, were by the colony ordinance 
 
 Kent Com. 26-27 ; Angell on Tide made public to lie in common for 
 
 Waters, 44. public use. In the case of 
 
 2Webster's Die. sub. Lake. Bradley vs. Rice, 13 Me. 201, and 
 
 SCallis on Sewers, 82; Woolrych Waterman vs. Johnson, 13 Pick, 
 
 on Sewers, 81 ; State vs. Oilman- 261, it was held that where the 
 
 ton, 14 N. H. 467 ; g N. H. 461. land in a conveyance was bounded 
 
 4 3 Kent Com. Note 429 (a) ; by a pond of water the grant ex- 
 States vs. Franklin Falls Co., 49 N. tended only to the margin of the 
 H. 240; West Roxbury vs. Stod- pond. 
 
 dard, 7 Allen 158 ; State vs. Gil- SDevonshire vs. Pattinson, 20 Q. 
 
 manton, 9. N. H. 461; Canal vs. B. D. 263; Holford vs. Bailey, 8 Q. 
 
 People, 5 Wend. 447; Great ponds, B. 1000 ; Pery vs. Thornton, 23 L. 
 
 containing more than ten acres, R. Ir. 402 ; See remarks of Gray, 
 
 which were not before the year J., in Pain vs. Woods, 108 Mass. 
 
 1647 appropriated to private per- 160, 169 (1871), citing Duke (ed.
 
 50 
 
 CLASSIFICATION OF WATERS. 
 
 [§ 38, 39. 
 
 which are wholly unprovided for by the common law of 
 England.^ 
 
 Hence it follows that lands under the waters of great navi- 
 gable lakes require a specific grant to enable the riparian 
 owner to go beyond the shore. - 
 
 § 39. "Rivers. — A river is a running stream of water, pent 
 in on either side by banks, shores or walls, usually flowing in a 
 particular direction, in a definite channel, and discharging 
 into some other stream or body of water. ^ 
 
 Every river consists of the bed, shores or banks, the water, 
 and also a current.^ The term river applies where the waters 
 flow and reflow with the tide as well as where the current is 
 
 1805) 8, 129 ; Marshall vs. Ulles- 
 water Steam Navigating Co., 3 B. 
 & S. 732 ; 113 Kng. C. L. 732, 742, 
 citing Hale, De Jure Maris, ch. I ; 
 Hunt on Boundaries and Fences 
 (2d ed.), 19 ; Grej'es' Case, Owen, 
 20 ; Somerset vs. Fogwell, 5 B. & C. 
 875, (E. C. L. R. vol. II.); Pollenfen 
 vs. Crispin, i Vent. 122; Bell's Law 
 of Scotland, 171 ; Com. Dig. Pre- 
 rogative (D 50); 3 App. Cas. 641; 
 s. c. R. 10 C. L. 398, 412 ; 2 L. R. 
 Ir. 118. 
 
 1 Canal Corn's et al vs. People, 5 
 Wend. 423, 446 ; Canal Appraisers 
 vs. People, 17 Wend. 571, 597, 616, 
 621 ; 3 Kent. Com. 429, note (a) 
 430 ; Kingman vs. Sparrow, 12 
 Barb. 201 ; King vs. Smith, Doug. 
 441 ; Ledyard vs. Ten Eyck, 36 
 Barb. 102; In Fletcher vs. Phelps, 
 28 Vt. 257; Jakeway vs. Barrett, 
 38 Vt. 316, 323, and Austin vs. 
 Rutland Railroad Co., 45 Vt. 215; 
 17 Fed. Rep. 466, it was held that 
 lands bounded on Lake Champlain 
 extend to the edge of the water at 
 low water mark; State vs. Frank- 
 lin Falls Co., 49 N. H. 240, 250; 
 State vs. Gilmanton, 9 N. H. 461; 
 
 14 N. H. 467; Waterman vs. John- 
 son, 13 Pick. 261; Hogg vs. Bee- 
 man, 41 Ohio St. 81; Sloan vs. 
 Biemiller, 34 Ohio St. 514; Hardin 
 vs. Jordan, 16 Fed. Rep. 823; 140, 
 U. S. 371; Paine vs. Woods, 108 
 Mass. 160, 169; Commonwealth vs. 
 Vincent, 108 Mass. 441, 445; An- 
 gell on Water Courses, see's 41, 
 42; Gould on Waters, sec. 84; 12 
 Amer. & Fng. Enc. of Law, tit. 
 " Lakes and Ponds." 
 
 2 Post, Chap. III. sees. 86-88. 
 
 3 Gould on Waters, sec. 41; An- 
 gell on Water Courses, sec. 4. 
 
 ^Callis on Sewers, 77; Woolrych 
 on Waters, 31; Tenterden, C. J., in 
 Rex vs. Oxfordshire, I. B. & Ad., 
 289; 20 Eng. C. L. 389; Rex vs. 
 Trafford, I. B. & Ad. S74; 20 Eng. 
 C. L. 389; 8 Bing. 204; 21 Eng. C. 
 L. 272; Queen vs. Derbyshire, 2 Q. 
 B. 745; Rex vs. Whitney, 3 Ad. & 
 El. 69; 30 Eng. C. L.33; 7C. &P. 
 208; Abraham vs. Great Northern 
 Railway Co., 16 Q. B. 586, 597; 71 
 Eng. C. L. 584; Menzies vs. Brea- 
 dalbane, 3 Wilson & Shaw, 234, 
 243; In Benson vs. Connors, 63
 
 §39.] 
 
 CLASSIFICATION OF WATERS. 
 
 51 
 
 always in one direction, but it does not include surface water 
 convej'ed from a higher to a lower level for limited periods, 
 during the melting of snow or during or soon after the fall of 
 rain, through hollows or ravines which at other times are 
 dry.^ However, a river or water-course may be sometimes 
 drs', but in order that it come within the definition it must 
 appear that the water usually flows in a particular direction, 
 
 Iowa, 670, it was where the court 
 finding that there was a "water 
 channel," a "natural channel"and 
 the "natural flow of water there- 
 in" held conclusive that it was a 
 natural stream and not a mere sur- 
 face channel; McHardy vs. Ellice, 
 
 I Can. App. 628; 39 Q. B. (Can.), 546; 
 37 Id. 580; Palmer vs. Waddell, 22 
 Kansas, 352; Ashley vs. Wolcott, 
 
 II Cush 192; Gibbs vs. Williams, 25 
 Kans. 149; Serrin vs. Grefe, 25 N. 
 W. Rep. 228; Chicago R. R. Co. vs. 
 Morrow, 42 Kansas 339. The bed 
 is the soil so occupied by the 
 stream as to be wrested from vege- 
 tation: Houghton vs. Chicago Ry. 
 Co., 47 Iowa 370. The bank of a 
 stream is the continuous margin 
 where vegetation ceases, and the 
 shore is the pebbly, rocky space 
 between that and the low water 
 mark. McCullough vs. Wainright, 
 14 Pa. St. 171. The banks are those 
 elevations which contain the river; 
 its natural channel when there is 
 the greatest flow of water. Bouvier 
 Law. Diet.; Howard vs. Ingersoll, 
 13 How. 426; Gould on Waters, 
 Sec. 41; Starr vs. Child, 20 Wend. 
 149; State vs. Gilmanton, 9 N. H 
 461; 14 N. H. 467. 
 
 lAngell on Waters, Sec. 4; 
 Gavit's Adm'rs vs. Chambers, 3 
 Ohio 496; Weis vs. Madison, 75 
 Ind. 241:39 Am. Rep. 135; Iloytvs. 
 
 Hudson, 27 Wia. 656, 661; 9 Am. 
 Rep. 472; in which Mr. Chief 
 Justice Dixon of the Supreme 
 Court in the opinion said: " The 
 term 'water course' is well defined. 
 There must be a stream usually 
 flowing in a particular direction, 
 though it need not flow contin- 
 ually. It may sometimes be dry. 
 It must flow in a definite channel 
 having a bed, sides, or banks, and 
 usually discharge itself into some 
 other stream or body of water. It 
 must be something more than a 
 mere surface drainage over the 
 entire face of a tract of land, 
 occasioned by unusual freshets or 
 other extraordinary causes. It 
 does not include the water flowing 
 in the hollows or ravines in the 
 land, which is the mere surface 
 water from rain or melting snow, 
 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 
 water courses." Washburn on 
 Easements, 209, 210; Howard vs. 
 Ingersoll, 54 U. S. 381; Shields vs. 
 Arndt, 3 Green's Ch. 234; Rice vs. 
 Evansville, 6 West Rep. 244; 
 Luther vs. Winnissimet Co., 9 
 Corp. 171; Reynolds vs. Mc.\rthurs 
 2 Peters 417.
 
 52 
 
 CLASSIFICATION OF WATERS. 
 
 [§39. 
 
 and has a regular channel with bed, banks, or sides. ^ And 
 whatever may be its source, as soon as the water becomes a 
 part of a natural stream it belongs to him in whom is the 
 property of the stream itself.^ 
 
 In the case of Reynolds vs. Mc. Arthur, ^ Mr. Chief 
 Justice Marshall in rendering the opinion of the Court upon 
 the proposition advanced by some that the source of a 
 river must be considered as commencing at that point in 
 its channel from which water flows at all seasons of the 
 year, in opposition thereto, said, " Is this proposition so 
 invariably true as to become a principle of law? We think 
 it is not. A stream may acquire the name of a river, in 
 the channel of which at some season of extreme drought 
 no water flows. For a great portion of the year, part of a 
 stream may flow in great abundance, in which during a very 
 
 1 Chasemore vs. Richards, 7 H. 
 L. Cas. 349; 5 H. & N. 983; 2 H. & 
 N. 168; Rawstrom vs. Taylor, 11 
 Exch. 369; Broadbent vs. Rams- 
 botham, 11 Exch. 602; Luther vs. 
 Winnessimet Co., 9 Cush 171: 
 Ashley vs. Wolcott, 11 Cush. 192, 
 195; Parks vs. Newbarryport, 10 
 Gray 28. In which the court held 
 that the passage of water from 
 rain and melting snows for twenty 
 years gives no right to its continu- 
 ance, as no action will lie for the 
 interruption of mere surface drain- 
 age. Flagg vs. Worcester, 13 Gray, 
 601; Dickinson vs. Worcester, 7 
 Allen, 19: Wheeler vs. Worcester, 
 10 Allen, 591; Gannon vs. Harga- 
 don.io Allen, 106; Bates vs. Smith, 
 100 Mass., 181; Emery vs. Lowell, 
 to4 Mass., 13; Morrill vs. Hurley, 
 120 Mass. ,99; Bassett vs. Company, 
 43 N. H., 578; Coffman vs. Griese- 
 mer, 26 Penn. St., 407; Earle vs. 
 Hart, I Beas'l, 280, 283; State vs. 
 Gilmanton, 14 N. H., 467; Bangor 
 vs. Lansil, 51 Maine, 521; Greeley 
 
 vs. Maine Central Ry. Co., 53 
 Maine, 200; Morrison vs. Bucks- 
 port Ry. Co., 67 Maine, 353; Buffum 
 vs. Harris, 5 R. I., 243; Earl vs. 
 De Hart, i Beas'l, 280; Bowlsby 
 vs. Speer, 31 N. J. L., 351; Gillham 
 vs. Madison Ry. Co., 49 111., 484; 
 Shields vs. Arndt, 3 Green Ch., 
 234; Beard vs. Murphy, 37 Vt., 99; 
 Swett vs. Cutts, 50 N. H., 439; 
 Hoyt vs. Hudson, 27 Wis., 656; 
 Eulrich vs. Richer, 37 Wis., 226; 
 41 Wis., 318; Barnes vs. Sabron, 
 10 Nev., 217; Eddy vs. Simpson, 
 3 Cal., 249; Shively vs. Hume, 10 
 Ore., 76; Geddis vs. Parrish, i 
 Wash. St., 587; 21 Pac. Rep., 314; 
 New Albany Ry. Co. vs. Peterson, 
 14 Ind., 112. Greencastle vs. Haze- 
 lett, 23 Ind., 186; Schlichter vg. 
 Phillipy, 67 Ind., 201; Crewson vs. 
 Grand Trunk Ry. Co., 27 Q. B. 
 (Can.) 68. 
 
 2 Washburn on Easements, 210 
 and cases cited. 
 
 3 2 Peters 417.
 
 § 39, -40.] CLASSIFICATION OF WATERS. 53 
 
 dry season we may find only standing pools. It would be 
 against all usage to say that the general source of the river 
 was at that point in its channel from which the water always 
 flows." The bed which is a definite and permanent channel 
 is the characteristic which distinguishes those waters from 
 mere surface drainage flowing without a definite course in 
 certain limits.^ Rivers are distinguished from lakes and 
 ponds chiefly by the fact that they have a current. ^ But 
 the mere fact that a river broadens into a pond-like sheet, 
 does not deprive it of its character as a river. -^ 
 
 § 40. Navigable Rivers. — Under the common law only 
 those rivers and parts of rivers in which the tide ebbs and 
 flows are known as navigable rivers. The term " navigable" 
 was used in a technical legal sense, and was held to be almost 
 synonymous with the word tidal when applied to rivers.^ 
 
 However the tidal test of navigability was onl}^ a prima 
 facie one, even at common law, tidal waters in many instances 
 being held as non-navigable.''^ 
 
 Above the ebb and flow of the tide, no rivers are by com- 
 mon law deemed navigable.*^ 
 
 1 Ibid. Eulrich vs. Riclither, 37 vs. Montague, 4 B. & C. 598, in 
 Wis. 226; 41 Wis. 318. which Mr. Justice Bailey says : 
 
 2 Callis on sewers 82; .\iner. & "The strength of \h\s prima/acie 
 Rng. Ency. of Law Sub. " Lakes evidence must depend upon the 
 and Ponds." situation and nature of the chan- 
 
 SBassett vs. vSalisbury Mfg. Co., nel. If it is a broad and deep 
 
 43 N. H. 569; Bassett vs. Salisbury channel calculated for the purpose 
 
 Co., 28 N. H. 451. of commerce, it would be but 
 
 43 Kent 13th ed. 413, 414; Miles natural to conclude that it has 
 
 vs. Ro.se, I Marsh. 313, 5 Taunt been a public navigable one, but 
 
 705, I Eng. C. L. 240; Royal Fish- if it is a petty stream navigable 
 
 eries vs. Banne, 2 Davis 149. only at certain periods of the tide, 
 
 ij Mayor of Lynn vs. Turner, and then only for a short time, 
 
 Cowper 86. In Miles vs. Rose. and by very small boats, it is 
 
 Supra, Mr. Chief Justice (^ibbs difficult to suppose that it ever 
 
 said: "The flowing of the tide, has been a public navigable chan- 
 
 though not absolutely inconsistent nel." vSee also McMannus vs. Car- 
 
 with the right of private property michael, 3 Iowa i. 
 
 in the creek, is ^.iron^ prima facie '' Ibid. Chicago vs. McGinn, 51 
 
 evidence of its being a puljlic 111., 272. 
 navigable river." vSee also Re.K
 
 54 
 
 CLASSIFICATION OF WATERS. 
 
 [§40. 
 
 But in this country the fact that rivers are or are not subject to 
 the ebb and flow of the tide is no longer a test of navigability. 
 Rivers must be regarded as navigable in law which are navi- 
 gable in fact.^ 
 
 Tidal waters and rivers above tide water, which are in fact 
 navigable the entire year, without reference to the manner or 
 degree in which they are afiected by the season, are presump- 
 tively public and navigable.'-^ 
 
 It has been settled by a long line of decisions that the 
 navigable rivers of the United States are such as are actually 
 navigable in fact, and which by themselves or their connec- 
 tion with other waters form a continuous channel for com- 
 merce with foreign countries or among the States. Vessels 
 larger than any which existed in England when the common 
 law test was established, now navigate rivers and inland lakes 
 of this country for more than a thousand miles beyond the 
 reach of any tide. However, what constitutes the test of naviga- 
 bility becomes important when considering the rights of 
 
 1 The common law rule, making 
 the ebb and flow of the tide the 
 test of navigability is not now 
 applicable to the United States. 
 Weise vs. Smith, 3 Ore. 446 ; 
 Hodges vs. Williams, 95 N. C. 331; 
 Compare Felger vs. Robinson, 3 
 Ore. 455; The Daniel Ball, 77 U. S. 
 557; 19 Lawyers' Ed. 999; The 
 Moutello II Wall 411; 20 Lawyers' 
 Ed. 191; Chicago vs. McGinn, 51, 
 111., 272; McManus vs. Carmichael, 
 3 Iowa i; Bucki vs. Cone (Fla.) 6 
 So. Rep. 160. 
 
 2The following have been judici- 
 ally pronounced navigable rivers: 
 The Androscoggin (Thompson vs. 
 Androscoggin Co., 54 N. H. 514; 
 Gerrish vs. Brown, 51 Maine 256); 
 The Allegheny (Dallrymple vs. 
 Meade, i Grant Cas. 197); The 
 Delaware and Lehigh (McKeen vs. 
 Delaware Canal Co., 49 Pa. 424; 
 The Falia{Ingram vs. St. Tammany 
 
 Police Jury, 20 La. Ann. 226); Hog 
 Bayou (Sullivan vs. Spotwood, 82 
 Ala. 163); The Mohawk (People 
 vs. Canal Appraisers, 33 N. Y. 461; 
 Crill vs. Rome, 47 How. Pr. 398); 
 The Monongahela, (The Monon- 
 gahela Bridge Co. vs. Kirk, 46 Pa. 
 112); The Ohio (Porter vs. Allen, 
 Bind, i; Baker vs. Lewis, 33 Pa. 
 301); The Passaic (Newark Acque- 
 duct Board vs. Passaic, 45 N. J. 
 Eq. 393); The Pond Branch (Witt 
 vs. Jefcoat; 10 Rich, i, S. C, 389); 
 The Savannah (Lawton vs. Comer, 
 Ga., 7 L. R. A. 55 and note); The 
 St. Joseph (The St. Joseph Co. vs. 
 Pidge, 5 Ind. 13 ; Williams vs. 
 Beardsley, 2 Ind. 591); The Taultin 
 and the St. Mary (Weiss vs. Smith, 
 3 Or. 445); The Wallamet (Walla- 
 met Iron Bridge Co. vs. Hatch, 19 
 Fed. Rep. 347; Escanaba Co. vs. 
 Chicago, 107, U. S. 678).
 
 § 40, 41.] CLASSIFICATION OF WATERS. 55 
 
 riparian owners to the bed of the stream, and also the rights 
 of claimants to the waters of the same.^ 
 
 In quite a recent case in Massachusetts, ^ Mr. Justice 
 Gray defined the word navigable as commonly used in legal 
 phraseology as follows: "The term 'navigable waters' as 
 commonly used in the law, has three distinct meanings: ist, 
 as synonymous with ' tide waters,' being waters, whether salt 
 or fresh, whether the ebb and flow of the tide from the sea 
 is felt; or 2d, as limited to tide waters which are capable of 
 being navigated for some useful purpose; or 3d (which has 
 not prevailed in this commonwealth), as including all waters, 
 whether within or beyond the ebb and flow of the tide, which 
 can be used for navigation."^ 
 
 § 41. Same— Right to use Waters of— In many of the 
 States inland rivers navigable in fact are, like tidal rivers 
 under the common law, public property. Hence, the public 
 owns the soil under them, and the riparian owners' bound- 
 aries are limited by the banks, and such streams have the 
 general characteristics of public waters.^ Especially is this 
 true where the lands have been surveyed and patented under 
 
 1 Miller vs. Mayor of N. Y., 109 this subject is towards the adop- 
 
 11.8.385; Escanaba Co. 107 U. S. tioii of the civil law doctrines. See 
 
 67S; Commonwealth vs. Vincent, on the subject Institutes Just. lib. 
 
 108 Mass. 441. 2 tit. i; Digest lib. 43, tits. 12, 13, 
 
 SCommonwealth vs. Vincent, 108 14; Domat Civil Law, Preliminary, 
 
 Mass. 441. bk. i, tit. 3 j; i, arts, i, 2; Code 
 
 3 Commonwealth vs. Chapiii, 5 Napoliau, bk. 2 tit. ch. 2, arts 556, 
 
 Pick. 199; Rowe vs. Granite IJridge 560-63; yiy. i, ch. 3 art. 538. 
 
 Co. 21 Pick. 344; Murdock vs. -iThis is true iJi all the states 
 
 Stickney, 8 Cush. 113, 115; Attor- which go to make up the arid re- 
 
 ney General vs. Woods, 108 Mass. gion in which there are navigable 
 
 436; Waters vs. Lilley, 4 Pick. 145, rivers. Packer vs. Bird, 71 Cal. 
 
 147; Genessee Chief vs. Fitzhugh, 134; Lux vs. Haggin, 69 Cal. 135; 
 
 12 How. 443; The Daniel Hall, 10 People vs. Gold Run, etc., Co., 66 
 
 Wallace 557. By the civil law Cal. 138; Shoemaker vs. Hatch, 
 
 waters navigable in fact are such 13 Nev. 261; Minto vs. DeLancy, 
 
 in law, a navigable river being 7 Org. 337; Moore vs. Willimclte 
 
 defined as " Statioitinere navigo " Transp. Co., 7 Ore. 355; Johnson 
 
 aplace or way fornavigation. The vs. Knott, 13 Ore. 308; Parker vs. 
 
 development of American Law on West Coast Packing Co., 17 Ore.
 
 56 CLASSIFICATION OF WATERS. [§ 41. 
 
 the Federal laws.^ Hence it follows that as the public is the 
 owner of the river it has a perfect right to the clear and 
 unobstructed navigation upon all such rivers as are navi- 
 gable in fact. So, one who obstructs materially a navi- 
 gable river, without the consent of the legislature, is liable 
 for the consequences.^ But whether a river can be called a 
 public river or not the public have the paramount right of 
 passage upon all streams which afford capacity for that purpose. 
 This right includes not only the navigation of vessels and 
 boats, but also floatage.^ So also, as to the smaller rivers 
 which are not navigable for large boats, it is held that where 
 a stream is naturally of sufiicient size to float small boats, mill 
 logs and timber, the public have a right to its free use for that 
 purpose; nor is it essential that such capacity continue 
 throughout the year, but it may only last for a few weeks in 
 the spring, or at times of especially high water. In the case 
 of Shaw vs. Oswego Iron Co.,"* it was held in reference to the 
 small river Tualatin, that though it was capable of floatage 
 there were not the same reasons for departing from the com- 
 mon law rule as in the case of the large rivers of the 
 country, and that the bed of the stream was the property of 
 the riparian owners. But it was also held that although the 
 riparian owners were the owners of the bed of the stream they 
 
 510; Wood vs. Fowler, 26 Kans. Cliristiancy, J., says: "Nor do we 
 
 682; 40 Am. Rep. 330. think the right of navigation in a 
 
 1 Haight vs. Keokuk, 4 Iowa, 199; public river can with propriety 
 
 Tonibden vs. Bldg. Co., 32 Iowa, be treated as real estate vested in 
 
 106. the public or the vState for the 
 
 2 The Imperial, etc., 3 L. R. A. benefit of every individual who 
 234; 38 Fed. Rep. 614; Atlee vs. may have occasion to use it. It is 
 N. W. Union Packet Co., 88 U. S. a public right, but we see no rea- 
 389; Philadelphia, etc., 64 U. S. son to call it real estate; it is some- 
 209. times called a 'public easement,' 
 
 3 While the term "easement" is but we do not think it comes with- 
 used quite generally in books as in the meaning of the term ease- 
 applied to the right of the public ment, as used to designate an 
 to navigation upon all streams incorporal hereditament, as a right 
 capable of the same it must be of way belonging to one person or 
 understood rather in the popular estate, over the lands of another." 
 than in a strictly legal sense. In 4io Ore. 371; 45 A. M. Rep. 146. 
 Barnard vs. Hinkley, 10 Mich. 459;
 
 § 41, 42.] 
 
 CLASSIFICATION OF WATERP. 
 
 57 
 
 had no right to divert the waters, from the fact that at certain 
 seasons of the year logs could be floated down, and for that 
 purpose it had the character of a public stream. Nor was it 
 essential to the public "easement" that such a capacit}' con- 
 tinue through the year. The right of passage is paramount 
 to all other rights and interests in and to rivers and streams.^ 
 
 §42. Ri^ht to Navigation, liow Acquired.— How is this 
 right of passage acquired by the public ? There are three 
 methods: First, at common law the right to navigate waters 
 above the reach of the tide was acquired by user or prescrip- 
 tion.^ This view is consistent with the holding of the common 
 
 iMusservs. Hershey, 42 Iowa, 
 356,361; McMannisvs. Carmicliael 
 3 Iowa, I, Delaware, etc., R. Co. 
 vs. Stump, 8 Gill. & J. (Md.), 479, 
 510; 29 Am. Dec. 561; Post vs. 
 Munn, 4 N. J. Iv. 61; 7 Am. Dec. 
 570; Davis vs. Jenkins, 5 Jones, 
 (N. C.) 290; Hodges vs. Williams, 
 95 N. C. 331; 59 Am. Rep. 242; 
 Flannagan vs. Philadelphia, 42 Pa. 
 St. 219, in which was held the 
 right of navigation in all rivers 
 actually navigable is the para- 
 mount right of every citizen. Cobb 
 vs. Bennett, 75 Pa. St. 326; 15 Am- 
 Rep. 752. In England, the right 
 of navigation is paramount to any 
 right of property in the Crown, 
 and the latter cannot make a grant 
 inconsistent with it. Colchester 
 vs. Brooke, 7 Q. B. 339; 15 L. J., 
 Q. B., N. S., 59; 9 Jur. 1090; Wil- 
 liams vs. Wilcocks, 8 A. & K. 314; 
 So also the right is superior to that 
 of fishery. .Anonymous, i Camp, 
 517, and note; Lewis vs. Keeling, 
 I Jones, (N. C.) 299; 62 .'\ni. Dec. 
 168; Moulton vs. Libby, 37 Me. 
 472; 59 Am. Dec. 57; Mason vs. 
 Mansfield, 4 Cranch, 580: Com- 
 monwealth vs. Chapin, 5 Pick. 
 
 41; 16 Am. Dec. 386; Steamboat 
 "Globe" vs. Kurtz, 4 Greene 
 (Iowa) 433; Babcock vs. Herbert, 
 3 Ala. 392; 37 Am. Dec. 695) The 
 Vancouver, 2 Sawyer, 381, iu 
 which the court held a wire cable 
 laid across the Wallamet River, as 
 a guy on which to run a ferry boat 
 is not an unlawful obstruction to 
 navigation unless it actually pre- 
 vent or render hazardous the 
 navigation of the river by others. 
 Milwaukee Gas Light Co. vs. 
 "Gamecock," 23 Wis. 144; Scott 
 vs. Chicago, i Biss. 510; Castello 
 vs. Landwehr, 28 Wis. 522; Gates 
 vs. Northern Pac. Ry. Co., 64 
 Wis. 64; Chicago vs. McGinn, 51 
 in. 266; 2 Am. Rep. 295; I'elger 
 vs. Robinson, 3 Ore. 458; Treat vs. 
 Lord, 42 Maine, 55S; Davis vs. Win- 
 slow, 51 Me. 297; Gerrish vs. 
 Brown, 51 Me. 256; Brown vs. 
 Scofield, 8 Barb. 243; Morgan vs. 
 King, 18 Barb. 288; Deidrich vs. 
 N. W. Ry. Co., 42 Wis. 203; Wise 
 vs. Smith, 3 Ore. 446; Thunde. 
 Bay vs. vSpeechly, 31 Mich. 342. 
 
 - Delaney vs. Boston, 2 Ilarr. 
 (Del.) 489; Brubaker vs. Panl, 7 
 Dana, (Ky.) 428; 32 .Am. Dec. in;
 
 58 OLASSIFICATIO:^ OF WATERS. [§ 42. 
 
 law rule as applied in England, that non-tidal waters are 
 private property, and would seem to be applicable to the 
 states of the Union where that doctrine prevails. It may 
 also be granted by the express act of the legislature of any 
 State. 1 But it is generally regarded as an inherent public 
 right, needing no legislative sanction. " Nature is competent 
 to make navigable rivers without the help of legislation. "^ 
 Hence as a conclusion of the above, whether a stream is 
 subject to the tidal changes or not, but is actually navigable 
 for large vessels, boats, or floatage for saw logs, all or a 
 certain portion of the time, no one has a right to divert the 
 water for any purpose, if in so diverting the same it in any 
 way obstructs, hinders, or prevents the public Jrom using the 
 stream when it shall be navigable for any of the above pur- 
 poses,^ unless the right to so divert the water has been author- 
 ized by the legislature of the State where the diversion is 
 sought to be made.^ But on the other hand, if the diversion 
 of the waters in these rivers in no way impairs the rights 
 that the public have to the easement of navigation there is 
 
 Ingram vs. Police Jury, 20 La. An. 1 Rivers made navigable by leg- 
 
 126; Berry vs. Carle, 3 Me. 269; islative enactments. — Ellis vs. 
 
 Binney's Case, 2 Bland Ch. (Md.) Carey, 30 Ala. 725; Harold vs. 
 
 124; Scott vs. Wilson 3 N. H. 321; Jones, 86 Ala. 274; Minturn vs. 
 
 State vs Gilmanlon, 14 N. H. 467, Lisle, 4 Cal. 180; People vs. St. 
 
 478; Sliaw vs. Crawford, 10 Johns Louis, 10, in, 351; Attorney Gen- 
 
 236; Canal Appraisers vs. People, eral vs. Del. etc. R. Co., 27 N. J- 
 
 5 Wend. 423, 444; Pearsall vs. Eq. i, 7; People vs. Gutchess, 48 
 
 Post, 20 Wend, in; 22 Wend 425; Barb. (N. Y.) 656; State vs. Dibble; 
 
 Wheeler vs. Spinola., 54 N. Y. 4 Jones (N. Car.) 107; Walker vs. 
 
 377; State vs. Thompson, 2 Strob. Board of Public Works, 16 Ohio 
 
 (S. C.) 12; Stump vs. McNarry, 5 540, 545; Coover vs. O'Connor, 8 
 
 Humph. (Tenn.) 363; 42 Am. Dec. Watts (Pa.) 470; Deddrick vs. 
 
 437. But it has been held that user Woods, 15 Pa. St. 9; Baker vs. 
 
 alone is not sufficient to establish Lewis, 33 Pa. St. 301; S. C. Am. 
 
 the fact of dedication to the public. Dec. 589; Witt vs. Jefcoat, 10 Rich. 
 
 Munson vs. Hungerford, 6 Barb. (S. Car.) 398; Selman vs. Wolfe, 
 
 265; Curtis vs. Kessler, 14 Barb. 27 Tex. 68. 
 
 511. In England, prescription is 2 Martin vs. Bliss, 5 Blackf (Ind.) 
 
 considered to be the true founda- 35, 32 Am. Dec. 52. 
 
 tion of the right of passage above ^Chap. III. sees. 53-54- 
 
 tide water. Woolrych on Waters ^ The Passenger Cases, 7 How. 
 
 (2nd Ed.) 40. 283; The Bright Star. Woolw, 266.
 
 § 42, 43.] CLASSIFICATION OF WATERS. 59 
 
 no doubt but that the water may be diverted from a navi- 
 gable river for irrigation or any other useful purpose. 
 Although any other obstruction in navigable waters is a 
 public nuisance,^ such waters may be appropriated for irri- 
 gation, and it follows of course that it must be by an open 
 and physical act, for a valuable use, and properly applied.^ 
 No individual can maintain an action for daijiages, for a 
 public nuisance for the diversion of the waters of a navi- 
 gable stream, unless he has sustained an injury which is 
 special in its character or which is not common to others 
 affected by the nuisance.-' 
 
 II. Rivers uiid Water Courses Non-Navipible. 
 
 § 43. Non-Navigable Rivers and Water Courses.— To this 
 class of water courses belong that vast number of inland fresh 
 water rivers and streams that are to be found in every portion 
 of this country, emptying their waters into larger rivers and 
 streams and finally carried to the sea. It is with this class of 
 rivers and streams that our subject has now to do. They 
 are the feeders and sources of the large rivers, and their 
 general characteristics are the same in all respects. They 
 have the alveus, or bed, and the water; but they have 
 banks instead of shores. The banks are more definitely 
 marked and usually elevated to a greater height than in the 
 
 275; Sears vs. Warren Co. 36 Ind. Co., 22 Barb. 297; Osborne vs. 
 
 367, p. 237, n. I;, Case of vState Brooklyn City Ry. Co. 5 Blatchf. 
 
 Freight Tax, 15 Wall, 232; s. c, 366; Currier vs West vSide E. P. R. 
 
 Com. vs. Phila. & Reading R. Co. Co., 6 Blatchf. 487. In Seely vs. 
 
 62 Penn. vSt. 286; i Pearson (Pa.). Bishop, 19 Conn. 128; where the 
 
 379; Com. vs. Erie Ry. Co, id. 345; grievance complained of consisted 
 
 Wilson vs. Blackbird Creek Marsh in the erection by the defendant 
 
 Co., 2 Pet. 245. of a dam in a navigable creek, by 
 
 I Georgetown vs. AlexanderCaiial means of which the plaintiff 
 
 Co. 12 Pet. 91. was prevented from passing along 
 
 -Clough vs. Wing, 17 Pac Rep. such creek from his residence to 
 
 453. his land I)clow, and in the con- 
 
 SDougherty vs P>uuliug i San<lf. verse, it was held that this obstruc- 
 
 1; Mills vs. Mall, 9 Wend. 315; lion was not the subject of private 
 
 Davis vs. Mayor of N. V. 14 X. V. action. 
 506; Carharl vs. Aulnirn Cias I.iglil
 
 60 CLASSIFICATION OF WATERS. [§ 43. 
 
 case of the shores of tidal rivers. The current always flows 
 in the same direction, which is different in a river whose current 
 is influenced by the tide. And, except in times of great 
 freshets or extraordinary floods, the water does not rise high 
 enough to overflow its banks, unless the river flows through 
 low marshy or swampy- lands. Fresh water rivers, although 
 not subject to the daily fluctuations of the tide, may rise and 
 fall periodically at certain seasons of the year, and thus have 
 defined high and low water marks. The low water mark is 
 the point at which the river or stream recedes at its lowest 
 stage; and the high water mark is the line which the river 
 impresses upon the soil by covering it for sufficient periods to 
 deprive it of vegetation and to destroy its value for agricul- 
 ture. Mr. Justice Wayne in delivering the opinion of the 
 Supreme Court, of the United States, in the case of Howard 
 vs. Ingersol' said upon this subject : "When the commissioners 
 used the words ' bank ' and ' river,' they did so in the popular 
 sense of both. When the banks of rivers were spoken of 
 those boundaries were meant which contained their waters at 
 their highest flow^ and in this condition they make what is 
 called the bed of the river. They knew that rivers have 
 banks, shores, w^ater and a bed; and that the outer line on the 
 bed of a river, on either side of it, may be distinguished upon 
 every stage of its water, high or low, at its highest or lowest 
 period. It neither takes in overflowed land be3^ondthe bank, 
 nor includes swamps nor low grounds liable to be overflowed, 
 but reclaimable for meadows or agriculture or which being too 
 low for reclamation, though not always covered with water, 
 may be used for cattle to range upon as natural or uninclosed 
 pasture. But it may include spots lower than the bluff" or 
 bank, whether there is or is not a growth upon them, not form- 
 ing a part of the lands, w^hether low or high, we know^ to be 
 upland or fast low land, if such spots are within the bed of 
 the river. Such a line ma}" be found upon the bed of every 
 river, from its source to its mouth. It requires no .scientific 
 exploration to find or mark it out. The eye traces it in going 
 either up or down a river in any stage of water. With such 
 
 1 13 Howard 381.
 
 § 43, 44.] 
 
 CLASSIFICATION OF WATERS. 
 
 61 
 
 an understanding of what a river is as a whole, from its parts, 
 there is no difficulty in fixing the boundary line in question. "^ 
 
 § 44. Siiiue. — Coutiuued. — We have stated before that a 
 river does not include surface water conveyed from a lower to a 
 higher level, for limited periods during times of extraordinary 
 high water, but that at times a river or a stream may be drj"-. 
 Now in the arid region it often happens that the character 
 of a stream determines the rights of those claiming interest 
 in and to the waters of the same, either by virtue of an 
 appropriation of the waters, or from the fact that their land 
 
 1 In Stover vs. Jack, 6o Peuu. vSt. 
 339, the Court held that ' ' low 
 water mark" as the limit of a 
 riparian owner's title is the ordi- 
 nary low water mark unaffected 
 by drought. In West vs. Taylor, 
 i6 Ore. 163; 13 Pac. Rep. 665, Mr. 
 Justice Straham, in his opinion in 
 this case upon the subject as to 
 what is a water course of this class 
 collects the authorities as follows: 
 " In McUmber vs. Godfrey, 108 
 Mass. 219, it is said: ' But the de- 
 fendant contends because at a 
 point on his land about five rods 
 above the plaintiff's lands the water 
 spreads out over the surface, cov- 
 ering a space of a few rods in 
 width, and thus runs upon and 
 across the plaintiff's land, which 
 is a level meadow, and covers the 
 same for several rods in width, 
 irrigating it in a valuable manner 
 through its whole length, being 
 about seven rods, and during this 
 whole length of twelve rods has 
 no defined channel, it ceases to be 
 a water-course, and is to be re- 
 garded as surface water, to the 
 flow of which the plaintiffs have 
 no right. If the whole of the 
 stream had sunk into defendant's 
 
 soil, and no water remained to 
 pass to plaintiff's land except un- 
 der the surface, it would have 
 ceased to be a water-course, and 
 the plaintiff would have had no 
 right to it (Broadbent vs. Rams- 
 bothan, 11 Exch. 602; Buffoon vs. 
 Harris, 5 R. I. 243), or, if the 
 water had only flowed in tempo- 
 rarj- outbursts, caused by melting 
 snow" or rain, it would have been 
 surface water, as in Ashley vs. 
 Woolcott, II Cusli. 192. The de- 
 fendant might have diverted it, 
 and the plaintiffs might have raised 
 barriers on their land to prevent 
 its flowing on their lot below. 
 Gannon vs. Hargadon, 10 Allen 
 106; Franklin vs. Fiske, 13 Allen 
 211. But where owing to the level 
 character of the land, it spreads 
 out over a wide space without any 
 apparent banks, yet usually flows 
 in a continuous current, and passes 
 over the surface to the land l)elow, 
 it still continues to be a water- 
 course. Gillett vs. Johnson, 30 
 Conn. 180; so, in a somewhat 
 analogous case (Palmer vs. Wad- 
 dell, 22 Kan. 352) it is said: 'If the 
 face of the country is such as 
 neces.sarily collects in one body
 
 62 
 
 CLASSIFICATION OF WATERS. 
 
 [§44, 
 
 adjoins the water course — whatever it may be called — and it 
 becomes necessary for us to determine exactly what consti- 
 tutes under the law a natural stream from which an appropri- 
 ation can be made, or to which riparian rights attach. And 
 in general, I will say that to maintain either of those rights 
 to a stream it must be made to appear that the water flows in 
 a certain direction, and by a regular channel with banks and 
 sides. It need not be shown to flow continually, and indeed 
 at times it may be dry, but it must have a well defined and 
 substantial existence. Those who are acquainted with the 
 streams and water-courses of the arid region know that it 
 would be plainl}' impracticable to require that the flow of 
 water should be continuous, uninterrupted and perennial, 
 during the entire year, and from year to year, in order that 
 either of the rights above named should attach. It is very 
 well known that some of the most important and well defined 
 
 so large a quantity of water, after 
 the heavy rains or melting snows, 
 as to require an outlet to some com- 
 mon reservoir, and if said water 
 is regularly discharged through 
 a well-defined channel which the 
 force of the water has made for 
 itself, and which is the accustomed 
 channel through which it flows 
 and has flowed from time imme- 
 morial, such channel is a natural 
 water-course,' and Gould on Wa- 
 ters, § 264 is to the same effect. 
 It is there laid down as an elemen- 
 tary principal that ' a stream does 
 not cease to be a water-course and 
 become mere surface water be 
 cause at a certain point it spreads 
 over a level meadow several rods 
 in width, and flows for a distance 
 without defined banks before flow- 
 ing again in a definite channel.' 
 So, also, in Shields vs. Arndt, 4 
 N. J. E. 245, the same principle 
 in effect was thus stated : ' A 
 spring on the defendant's land. 
 
 sixteen rods from the land of the 
 plaintiff, supplied a small stream 
 of water that ran to the plain- 
 tiff's land ; the water as it came 
 from the spring being sufficient 
 to fill a half-inch pipe, and the 
 flow being constant and nearly 
 uniform, except in very dry times, 
 when it failed to run. For seven 
 rods the stream descended rapidly 
 in a well-defined course, to a piece 
 of marshy ground, when it spread 
 out so that its flow was slight and 
 not sufficient to break the turf, 
 but it was generally sufficient to 
 form a continuous sluggish cur- 
 rent along this surface in a natu- 
 ral depression to a watering place 
 within the plaintiff's line.' This 
 was adjudged to be a water-course 
 within the meaning attached in 
 law to that term." See also Gibbs 
 vs. Williams, 25 Kan. 210; 37 Am. 
 Rep. 241; Barnes vs. Sabron, 10 
 Nev. 217; Angell on W. C. §4; 
 Shively vs. Hume, 10, Ore. 76.
 
 § 44, 45.] CLASSIFICATION OF WATERS. 63 
 
 streams of the arid region become almost, and sometimes 
 entirely, dry during a portion of the year. All of them never- 
 theless have well defined beds, channels, banks and cur- 
 rents of water, and are in every respect natural streams 
 to which water rights may attach. At certain periods of 
 the year water flows on the surface in a well defined 
 course, and there is at all times what is known as the under- 
 flow. This is the broad and deep subterranean volume of 
 water which slowly flows through the sand and gravel 
 underlying the most if not all the streams which traverse 
 the countrj^ adjacent to the mountain systems of the arid 
 region. These underground streams are probably much 
 greater in volume in some cases than the water upon the sur- 
 face; and are, as far as rights of appropriation or riparian 
 rights are concerned, but a valuable portion of the well 
 defined surface stream.^ 
 
 § 45. Same — Authorities Discussed. — The question as to 
 what constitutes a water course is of great importance, and 
 the subject has been discussed by several Courts of last 
 resort, not only of the States and Territories of the arid 
 region, but also of the eastern States. In Barnes vs. 
 
 iThe laws governing subter- complaint alleging that the de- 
 
 ranean waters will be discussed in fendant had overflowed the waters 
 
 a future part. Post sees. 78, 79 of said water-course, to the damage 
 
 298, 299. of said premises, coupled with an 
 
 Water- course- Channels. An instruction that if one diverts the 
 
 instruction, that if a jury found waters of a stream by artificial 
 
 that the waters of a particular means he is bound to take care of 
 
 stream flowed through a certain the same until it returns to its 
 
 slough, ditch or channel, on the natural bed. Held to be correct 
 
 land of the plaintiff during the in Tucker vs. Salem Mills, 15 Ore. 
 
 two years preceding the com- 5S1; 16 Pac. Rep., 426. 
 mencement of the action, that But see vSimmonds vs. Winters, 
 
 they had been running for twenty 21 Ore., 35; 27 Pac. Rep. 7, where 
 
 years before that time, then such the Court held, that a water-course 
 
 slough, ditch or channel was for is a stream of water usually flowing 
 
 the purposes of the action the in a particular direction, with well 
 
 channel of a water course, and its defined channel and banks, but 
 
 banks the banks of the water- the water need not flow continu- 
 
 course, within the meaning of a ously, as the channel may some-
 
 64 CLASSIFICATION OF WATERS. [§ 45. 
 
 Sabron,^ which is a leading case upon the subject, Mr. 
 Chief Justice Hawley, in rendering the opinion of the Court, 
 said: "It appears from the testimony that Current Creek is 
 partly supplied, at certain seasons of the year, from springs 
 having their rise and flow along its banks and bed, but mostly 
 from melting snow on the mountain. There is no regularity as 
 to the quantity of water, for to quote the language of several of 
 the witnesses, 'no two seasons are alike,' the amount of water 
 flowing being dependent upon the character of weather during 
 the preceding winter. After a cold winter, when deep 
 snows have fallen, the water flows in greater quantity and for 
 a longer time than after an open winter with but little snow; 
 hence, the amount of water varies in the summer season — 
 according to difi'erent statements made by different witnesses — 
 from nothing to five thousand inches. There is a conflict of 
 evidence as to the real character of this stream; the conflict, 
 however, is principally confined to the question, whether the 
 water therein 'continuously flows.' The fact that should 
 have been found by the Court below was, whether or not 
 Current Creek was a natural watercourse and a surface stream. 
 To ascertain that fact it was not necessary to determine 
 whether the water was continuouslj^ flowing. 'A watercourse, ' 
 says Angell, 'consists of bed, banks and water; yet, the water 
 need not flow continually, and there are many watercourses 
 which are sometimes dry. There is, however, a distinction to 
 be taken in law between a regularly flowing stream of water, 
 which at certain seasons is dried up, and those occasional 
 bursts of water which in times of freshets or in times of 
 
 times be drj-; but this does not and in its onward flow cuts out 
 
 include the water descending from through the soil a well defined 
 
 the hills without any definite channel which bears the unmistak- 
 
 channel, only in times of melting able impress of the frequent action 
 
 snows and ice. But the Court also of running water, and through 
 
 held, where water owing to the which it has flowed from time im- 
 
 hilly or mountainous configuration memorial during such seasons, 
 
 of the country accumulates in such a stream is to be considered a 
 
 large quantities from rains and watercourse, and governed by the 
 
 melting snows, and at regular same rules, 
 
 seasons descends through gullies i lo Nev. 217. 
 or ravines upon the lands below
 
 § 45.] CLASSIFICATION OF WATERS. 65 
 
 melting of ice or snow, descend from the hills and inundate 
 the country. ***** The finding 'that the same is sup- 
 plied at certain seasons of the year from the snows on the 
 mountains above the valley, and from the springs having their 
 rise and flow along the banks and bed of the same,' (being 
 sustained by the evidence) gives to this creek the character of 
 a natural watercourse, in so far as finding one is involved. 
 It is well settled that in order 'to maintain the right to a 
 watercourse or brook it must be made to appear that the 
 water usually flows in a certain direction, and by a regular 
 channel with banks or sides. It need not be shown to flow 
 continual]}', * * * * and it may be dry; but it must have a 
 well defined and substantial existence.' "^ On the other 
 hand, in the case of Green vs. Carotta, the findings in the 
 case were that the owner of certain lands upon which there 
 was a lagoon situated having no natural outlet, cut a ditch 
 for irrigating purposes. He afterwards conveyed part of the 
 land upon which the lagoon was situated to the defendants, 
 and the rest to the plaintiffs; and it seems that the ditch ran 
 between the tracts convej^ed. Upon the question as to 
 whether the ditch was a watercourse to which the plaintiffs 
 
 1 Angell on Water Courses sec. Parks vs. Newburyport, lo Gray, 
 
 4; Shively vs. Hume, lo Ore., 76; 28; Flagg vs. Worcester, 13 Gray, 
 
 Lux vs. Hagin, 69 Cal., 255; 10 601; Eulrich vs. Richter, 41 Wis., 
 
 Pac. Rep., 770; Gibbs vs. Williams, 318; Hoyt vs. City of Hudson, 27 
 
 25 Kan., 214; 37 Am. Rep., 241; Wis., 664; 22 Am. Rep., 714; Kelly 
 
 Palmer vs. Waddell, 22 Kan., 352; vs. Dunning, 39 N. J. Eq. 482; 
 
 Geddis vs. Parish, i Wash., 587; Pyle vs. Richards, 17 Neb., 180; 
 
 21 Pac. Rep., 314; Hanson vs. 22 N. W. Rep., 370; Jones vs. 
 
 McQue, 42 Cal., 303; Dickinson vs. Wabash, etc., Ry. Co., 18 Mo. App. 
 
 Worcester, 7 Allen, 19; Shields vs. 251. 
 
 Arndt, 4 N. J. Eq., 234; Gillettvs. A stream does not cease to 
 
 Johnson, 30 Conn., 180; L/Uther vs. be a water course, and become 
 
 Winnisimmet Co., 9 Cush., 71; mere surface water, because at 
 
 McUmber vs. Godfrey, 108 Mass., certain points it spreads over a 
 
 219; Ashley vs. Wolcott, 11 Cush., level meadow several rods in width 
 
 I92; Gannon vs. Hargadon, 10 and flows for a distance without 
 
 Allen, 106; Swett vs. Cutts, 50 N. defined banks before flowingagaiti 
 
 H., 439; 9 Am. Rep., 276; Ikif- in a definite channel. West vs. 
 
 foom vs. Harris, 5 R. I., 243; ICarl Taylor, 16 Ore, 165; 13 Pac. Rep. 
 
 vs. Dellart, 12 N. J. Ivq., 2S0; 665. In the case of Taylor vs.
 
 66 CLASSIFICATION OF WATERS. [§ 45, 46. 
 
 had acquired riparian rights, the Court said } "From the find- 
 ings which were made on all the material issues contained in 
 the pleadings, and are supported by the evidence, it appears 
 that there never was, in fact, any stream of water flowing in a 
 natural channel where the plaintiffs claimed, that originally 
 the water in dispute was contained in a lagoon or lake fed by 
 a spring located on the land of the defendant from which no 
 natural stream flowed or existed; * * * * that said ditch ran 
 down to the border of the plaintiff's lands, and that by leave 
 of the defendants and their predecessors, not in writing, the 
 plaintiffs had used 'waste water' of said ditch, but had no 
 further right or claim therein. ***** To us it seems that 
 the defendants and their predecessors owned the water in 
 dispute as absolutely as if it had been drawn from a well 
 located on their land, and overflowing the same or not at their 
 election, and that the plaintiff's never acquired any riparian 
 right to the water, because it never flowed to or over their 
 land in an}^ natural channel whatsoever, that the only water 
 which came to them was 'waste water' which they got through 
 the revocable license of the defendants and their predecessors 
 in interest."^ 
 
 As to the distinction made in our diagram between 
 this class of rivers and streams flowing over the Public 
 Domain of the United States and those upon State Lands, 
 I will say, the only distinction between the two arises as 
 regards the difference in laws regulating the appropriation of 
 the waters, which will be discussed in a subsequent portion of 
 this work. 
 
 § 46. Small Lakes and Ponds. — Small lakes are distin- 
 guishable from rivers, chiefly by the fact that they have no 
 current. The distinction between a stream and a pond or lake 
 
 Welch, 6 Ore., 199, it was held: a well defined and constant stream 
 
 That every proprietor of land in a subterranean channel, but not 
 
 through which flows a stream of to water percolating through the 
 
 water has a right to the use of soil or even flowing through an 
 
 the water flowing in its natural unknown or undefined channel, 
 
 channel without diminution or 1 72 Cal., 267. 
 
 obstruction. And that the same 2 See also Gillett vs. Johnson, 30 
 
 rule applies to water that flows in Conn., 180.
 
 § 46.] CLASSIFICATIOX OF WATERS. 67 
 
 is, that in the one case the water has a natural motion or 
 current, while in the other the water is in its natural state, 
 substantially at rest. This is so, independent of the size of 
 the one or the other. The existence of some current in a body of 
 water is not of itself, in every instance, sufficient to make it 
 a stream; nor will the swelling of a stream into a broad water 
 sheet make it a lake.^ Small lakes are distinguishable from 
 large lakes only in size; yet, the laws which govern them and 
 the soil under their waters are radically different.^. The 
 distinction in this country between public and private lakes 
 depends in most states entirely upon the size and navigability 
 of the particular lake and its relation to other waters which 
 flow into it, or with which it is connected. Hence, it follows, 
 that a lake or pond which is not really useful for navigation, 
 although of considerable size compared with ordinary bodies 
 of fresh water, may be private property.-'' Upon a close 
 examination of the authorities upon this subject it will be 
 found that they hold differently in different states; some 
 holding that the riparian owner whose lands adjoin an inland 
 lake or pond takes only to the water's edge at low water mark, 
 and others that he takes to the centre of the lake or pond. 
 
 But with lakes of this class, as with rivers, the public 
 have the right of navigation, paramount to all other rights 
 of riparian owners, if they are needed and used for that pur- 
 pose. And this right of navigation must not be disturbed, 
 either by drainage of the lake or by obstructions in the same. 
 
 As a part of the common law of the country, arising 
 out of public necessity, convenience and common con- 
 sent, the public have the right to use rivers and lakes and 
 parts of them, although not strictly public waters. If they be 
 
 1 Trustees vs. SchroU, 120 111. 509, has no current, is a lake and not 
 
 where it was also held that a body a stream of water. 
 
 of water five or six miles lonjj, and 2 See following Chapter, section 
 
 in some places a mile in width, 6b. 
 
 which is fed by springs, and has no 3 Hodges vs. Williams 95 N. C. 
 
 connection with a river or other 331; Ledyard vs. Ten. Eyclc, 35 
 
 stream except a slough which is Barb. 125, disapjjroved in Gouver- 
 
 dry during the summer, and the neur vs. National Ice Co. .57 Ilun. 
 
 body of water in its natural state 474; School Trustees vs. Schroll
 
 68 
 
 CLASSIFICATION OF WATERS. 
 
 [§ 46, 47. 
 
 actually navigable in fact they are subject to this right of 
 the public for the purpose of highway and navigation when 
 they can be employed in travel, trade or commerce. Such' 
 waters are treated as pzcblici juris in so far as they may be 
 properl}^ used for such purposes in their natural state. The 
 public right, however, arises only in case of their navigability. 
 And whether they are navigable or not depends entirely upon 
 their capacity for a substantial use for that purpose.^ 
 
 § 47. Ponds. — Ponds are of two kinds, natural and artificial. 
 A natural pond has all of the characteristics of a small lake, 
 and the terms " lake "or " pond " are frequently used inter- 
 changeably. But the word pond is at best indefinite. It 
 may mean a natural or an artificial body of water, constructed 
 for any purpose, either permanent or temporary. In both 
 cases the limits of such bodies of water may vary at different 
 times and seasons, bj^ use or b}^ natural causes. ^ 
 
 I20 111., 509; Atwood vs. Caiiaii- 
 daigua, 56 Hun., 293; Smith vs. 
 Rochester 92 N. Y., 463; Smith vs. 
 York, by statute, the State's title 
 to its navigable waters is in trust 
 for the owners of the upland as 
 well as for the public, and the 
 State can only convey the soil 
 under such water, whether they 
 are lakes or tide-waters, to the 
 owner of the adjoining land. Rum- 
 sey vs. N. Y. Ry. Co. 114 N. Y., 
 423; Right vs. Eldred 46 Hun., 
 12. In Cobb vs. Davenport 32 N. 
 J. L/., 369, 380, it was held that the 
 soil under the waters of fresh 
 water lakes within the State of 
 New Jersey, is in the riparian pro- 
 prietors, and not in the State. In 
 Pennsylvania a pond is not a "pri- 
 vate pond " which covers the soil 
 of a person who stocks it with fish 
 and also the soil of others. It is an 
 entirety, and the whole or none is 
 private. Rejmolds vs. Common- 
 wealth 93 Penu. St,, 458. See also 
 
 Heath vs. Williams 43 Am., Dec. 
 269 and note. 
 
 1 The title to the bed of the 
 river, lake or sound in such cases, 
 and all special privileges and ad- 
 vantages incident thereto may vest 
 and remain in the owner thereof, 
 subject onl)' to their public right 
 of navigation. He may use the 
 land and whatever is incident to 
 it, including the water over it in 
 such lawful ways as he will, if in 
 so doing he does not impede or 
 interfere with navigation. The 
 limited right of the public is para- 
 mount and must not be abridged. 
 State vs. Narrows Island Club, 
 100 N. C, 477; 6 Am. St. Rep., 
 618; Broadax vs. Baker, 94 N. C, 
 678; 55 Am. Rep., 655; Hodges vs. 
 Williams, 95 N. C, 331; 59 Am. 
 Rep., 242, distinguishing State vs. 
 Glenn, 7 Jones (N. C.) 321; Gould 
 on Waters sections 86, 87, 90, no. 
 2 Waterman vs. Johnson, 13 Pick. 
 261. Pond: A body of stagnant 
 water; a pool. Bouvier's Law Die.
 
 § 48.] CLASSIFICATION OF WATERS. 69 
 
 § 48. Subterranean or Underj^ronnd Water-Coui-ses.— Sub- 
 terranean or underground water-courses are, as their names 
 indicate, those water currents that flow under the surface of 
 the earth. A large portion of the great plains and valleys of 
 the mountainous regions of the west is underlaid by a 
 stratum of water-bearing sand and gravel, and fed by the 
 water from the mountain drainage. This water-bearing 
 stratum is of great thickness, the water is moving freely 
 through it, is practically inexhaustible, and, if it can be 
 brought to the surface, will irrigate a large portion of the 
 countr>' overlying it. In and near the mountains many 
 streams have a bed which was originally a rock}^ canyon, but 
 has been filled up with boulders and coarse gravel. In this 
 debris a large portion or all of the water sinks from sight, 
 to reappear only when some rocky reef crosses the channel and 
 forces the water to the surface. The movement of this water 
 through the porous gravel, owing to the declivity of the 
 stream, is often quite rapid, and a considerable volume may 
 thus pass down the channel hidden from sight. 
 
 These water-courses are divided into two distincf classes; 
 those whose channels are known or defined, and those 
 unknown and undefined. It is necessary to bear this 
 distinction in mind in our discussion, as they are governed 
 by entirely different principles of law. And in this connec- 
 tion it will be well to say that the word " defined " means a 
 contracted and bounded channel, tliough the course of the 
 stream may be undefined by human knowledge; and the 
 word "known" refers to knowledge of the course of the 
 stream by reasonable inference.^ Regarding the laws 
 governing these two classes, it must be known that if under- 
 ground currents of water flow in well defined and known 
 channels, the course of which can be distinctly traced, 
 they are governed by the same rules of law that govern 
 streams flowing upon the surface of the earth. '-^ 
 
 • Hlack vs. Ballyniera Commis- - Dickinson vs. Ciraiid Jnnction 
 
 sioners, 17 L. R. Ir. 456; Roalli vs. Can. Co., 7 ICxch. 2S2; Chaseniore 
 
 Driscoll, 20 Conn. 533; IJrown vs. vs. Richards, 2 Hurl. & N. 186; 
 
 Illius, 25 Conn. 594; Haldeinan vs. Cole S. M. Co. vs. Vir^^inia W. Co., 
 
 Bruckhart, 45 I'enn. St. 51S. i vSawycr 470; vSniilh vs. Adams, 6
 
 70 CLASSIFICATION OF WATERS. [§ 48, 49. 
 
 The owner of land under which a stream flows can, there- 
 fore, maintain an action for the diversion of it if such 
 diversion takes place under the same circumstances as would 
 enable him to recover if the stream had been wholly above 
 ground. But for this purpose the underground water must 
 flow in known and well defined channels, so as to con- 
 stitute regular and constant streams, in order that the 
 riparian owner or appropriator may invoke the same rules as 
 are applied to surface streams, or otherwise the presump- 
 tion will be that they have their sources in the ordinary 
 percolations through the soil.^ This rule practically disposes 
 of the second class of subterranean waters, — those whose 
 channels are unknown and undefined — although there are 
 undoubtedly a great many underground streams whose waters 
 flow in confined channels but whose courses are not known, 
 and following the above rule, these are all classed with 
 percolating waters. 
 
 § 49. Percolating Waters. — Percolating waters are those 
 which pass through the ground beneath the surface without 
 definite channels, although the same rules of law govern those 
 which have definite channels, but the course of which is 
 unknown and unascertainable.^ Where there is nothing to 
 
 Paige 435; Wheatley vs. Baugli, 25 build as high as he please, and 
 Peun. St. 528; Whetstone vs. Bow- hence the waters were not gov- 
 ser, 29 Penn. St. 59; Saddler vs. erned by the same laws that per- 
 Lee, 66 Georgia 45; 42 Am. Rep. tained to running streams. No 
 62; Action vs. Blundell, 12 Mees. distinction exists between waters 
 & W. 324; Haldeman vs. Bruck- running under the surface, in de- 
 hart, 45 Penn. St. 514; Hanson vs. fined channels, and those running 
 McCue, 42 Cal. 303 ; Hale vs. in distinct channels upon the sur- 
 McLea, 53 Cal. 578- face. The distinction is made 
 In the case of Strait vs. Brown, between all waters running in dis- 
 16 Nev. 317, the Court held that the tinct channels whether upon the 
 distinction between running water surface or subterranean, and those 
 and water percolating through oozing or percolating through the 
 the soil was that percolating waters soil in varying quantities and un- 
 were a part of the soil, and upon certain directions, 
 the principle that the owner has 1 Ibid; Hanson vs. McCue, 42 
 the land, even to the sky and to Cal. 303. 
 
 the lowest depths, the courts have 2 wheatley vs. Baugh, 25 Penu. 
 
 permitted him to dig as deep and 528.
 
 §49.] 
 
 CLASSIFICATION OF WATERS. 
 
 71 
 
 show that the waters of a spring or well are supplied by any- 
 defined flowing stream the presumption will be that they 
 have their source in the ordinary percolations of water through 
 the soil.^ Percolating waters, and those whose sources are 
 unknown, belong to the realty in which it is found. '^ The 
 reason for this rule is that, as percolations spread themselves 
 in every direction through the earth it is impossible to avoid 
 disturbing them without relinquishing the necessary enjoy- 
 ment of the land the law does not therefore forbid their 
 disturbance.^ 
 
 1 Hanson vs. McCue, 42 Cal. 303. 
 
 2 Mosier vs. Caldwell, 7 Nev. 
 363; Wheatley vs. Baugh, 25 Penn. 
 St., 528; 64 Am. Dec. and note; 
 Chasemore vs. Richards, 7 H. L. 
 Cas., 349; Dickinson vs. Grand 
 June. Canal Co., 7 Exch. 282; 
 Action vs. Blundell, 12 Mees. & 
 W., 324; Taylor vs. Welch, 6 Ore., 
 198; Hammond vs. Hall, 10 Sim., 
 552; Chase vs. Silverstone, 62 Me., 
 175: Taylor vs. Fickas, 64 Ind., 167, 
 
 Delhi vs. Youmans, 45 N. Y., 362; 
 5 Barb., 316; Colmanvs. Chadwick, 
 80 Penn. St., 81 ; Trout vs. McDon- 
 ald, 83 Penn. St., 126; Frazier vs. 
 Brown, 12 Ohio St., 294; Chatfield 
 vs. Wilson, 28 Vt., 49: Emporia 
 vs. Soden, 25 Kan., 608, 612. 
 
 3 Ibid; Colman vs. Chadwick, 80 
 Penn. St., 81; Angell on Water- 
 courses, § 109; 2 Am. I^. Reg. 65; 
 3 Am. L. Reg., 223; Post sees. 
 298, 299, cases cited.
 
 CHAPTER III. 
 The Common Law Tlieories. 
 
 Sections— 
 
 50. Nature and extent of subject 
 
 treated. 
 
 51. Tide waters. 
 
 52. Property in fresh water or 
 
 private streams and rivers. 
 
 53. Same — Fresh v/ater navigable 
 
 rivers. Rule in England. 
 
 54. Same — Same — Rule in the 
 
 United States. 
 
 Same — Same — United States 
 Survey. 
 
 Nature of ownership in a water 
 course. 
 
 Rights of riparian proprietors 
 in general. 
 
 Same — Continued. 
 
 Same — Right to natural flow 
 of water. 
 
 Right of diversion. Authori- 
 ties. 
 
 Riparian rights — Obstructing 
 flow. — Accelleration of cur- 
 rent. 
 
 Riparian rights. — Pollution of 
 a watercourse. 
 
 63. Right to flow of whole stream. 
 
 64. Right of access to and from 
 
 estate. 
 
 65. Right of riparian owner to the 
 
 use of water. — In general. 
 
 66. Ordinary use of water. 
 
 67. Same — Extraordinary use of 
 
 water. 
 
 Same — Use of water for irri- 
 gation. 
 
 Same — Same. 
 
 Same — English doctrine. 
 
 55- 
 
 56. 
 
 57- 
 
 58. 
 59- 
 
 60. 
 61. 
 
 62 
 
 68 
 
 69. 
 70. 
 
 Sections.— 
 
 71. Same — Continued. 
 
 72. Same — Early American doc- 
 
 trine. 
 
 73. Same — Later American doc- 
 
 trines. — Authorities discus- 
 sed. 
 
 74. Same — Chancellor Kent's 
 
 opinion. 
 
 75. California construction of 
 
 above. — Conclusions. 
 
 76. Same — "Reasonable use" dis- 
 
 cussed. 
 
 77. Same — Conclusion. 
 
 78. Same— Diversion of subterra- 
 
 nean waters. 
 
 79. Same — Authorities discussed. 
 
 80. Priority of appropriation at 
 
 common law. 
 
 81. Same — Authorities discussed. 
 
 82. Accretions and relictions. 
 
 83. Same — Fishery. 
 
 84. Same — Authorities discussed. 
 
 85. Other miscellaneous riparian 
 
 rights. 
 
 86. Lakes and ponds, property in. 
 
 87. Same — Rule in the United 
 
 States. 
 
 88. Same — Riparian rights con- 
 
 cerning. 
 
 89. Public grants. 
 
 90. Private grants . 
 
 91. Same — Continued. 
 
 92. Prescription. 
 
 93. License. 
 
 94. Eminent domain. 
 
 95. Summary.
 
 § 50, 51.] COMMON LAW THEORIES. 73 
 
 § 50. Nature and extent of Subject Treated.— It is not the 
 
 intent of the present work to enter into an extended discussion 
 of all the Common Law Theories upon the subject of waters 
 and water-courses, but simply to go so far as to show how far 
 the Common Law is applicable, or rather inapplicable, to the 
 subject of irrigation in the States and Territories of the Arid 
 Region of the West. 
 
 § 51. Tide Waters. — At common law the bed and soil of 
 all rivers subject to the ebb and flow of the tide, to the extent 
 of such ebb and flow, belongs to the Crown or Public. This 
 is the present law of England.^ They are the arms of the 
 sea, and the King has them because they partake of its 
 nature. This ownership is for public benefit, and in this 
 country each State as sovereign has succeeded to the right 
 which the King formerly possessed in such rivers and in the 
 soil beneath. 2 Mr. Gould in his work on waters says upon 
 this subject :3 "At the time of the Revolution when the 
 people became sovereign the respective States succeeded to 
 the title of the Crown in the tide waters within their territorial 
 limits, and to such rights therein as has been previously 
 granted to the local governments established under the royal 
 sanction. Public rights in navigable waters were not affected 
 or impaired by this change of title, and the powers acquired 
 by the States were those which in England, and in this 
 country previous to the Revolution, could have been exercised 
 by the King alone, or by him in conjunction with Parlia- 
 ment."^ 
 
 1 Gould on waters, sections 4, 5. 3 Gould on waters, section 32, 
 10, and cases cited; Regina vs. cases cited. 
 
 Keyn,2 Ex. D.,63; Royal Fishery ' Howard vs. Ingersoll, 13 How- 
 
 of the Banne, vSirJohn Davis, 149; ard, 381, 431; Pollard vs. Hagan, 
 
 Bulstrode vs. Hall, vSid., 149; Fitz- 3 How., 212. In which the 
 
 waiters Case, i Mod., 105; Col- .Supreme Court of theUnitedStates 
 
 Chester vs. Brooke, 7 Q. B., 339; i .said: The " .State's rights of sover- 
 
 Black. Com., 264. eignty and jurisdiction are not 
 
 2 Martin vs. Wadell, 16 Peters, governed by the Common Law of 
 367. l^ngland as it prevailed in the
 
 74 
 
 COMMON LAW THEORIES. 
 
 [§52. 
 
 § 52. Property in Fresh Water or Private Streams and 
 Rivers. — Fresh water streams which are not a common 
 passage way are private property, and the title to the bed of 
 the river, ad Jiliim aquae, is in the proprietors of the banks 
 bordering upon the streams, in severalty and not in common, ^ 
 This is true whether their tenure is freehold, copy hold or 
 lease hold.^ And if the banks on both sides of the stream are 
 owned by the same person he owns the whole of the bed, accord- 
 ing to the extent of his lands in length. If, however, his 
 land is bounded by the stream he owns to the thread of the 
 same; or as it is termed in common law, ad filum aquae r" 
 unless from prior grants from himself, his vendors, or the 
 State, before his land became private property, such a 
 construction can be negatived.^ There is but one difiference 
 between a stream running through a man's land, and one that 
 
 colonies before the Revolution, 
 but as modified by our own. con- 
 stitutions." 
 
 1 Gould on Waters, Section 46, 
 and cases cited; Rex vs. Wharton, 
 Holt 499; 12 Mod., 510; Devonshire 
 vs. Pattinson, 20 Q. B. D., 263; 
 Tyler vs. Wilkinson, 4 Mason's 
 Cir. Ct., 397; Hay vs. vSterritt, 2 
 Watts, 327; Ball vs. Slack, 2 Whar- 
 ton (Pa.), 508; 25 Cent. L. J., 539, 
 and cases cited in notes; Hatch vs. 
 Dwight, 17 Mass., 2S9; Mead vs. 
 Haynes, 3 Rand, 33; Morrison vs. 
 Keene, 3 Greenl, 474; Middleton 
 vs. Pritchard, 3 Scam., 510; Jones 
 vs. Soulard, 24 How., 41; in which 
 the Court held that a riparian 
 proprietor upon .the Mississippi 
 was entitled to all the accretions 
 as far out as the middle of the 
 stream; Canal Corn's vs. People, 
 5 Wend., 423; People vs. Canal 
 Appraisers, 13 Wend., 358; King 
 vs. King, 7 Mass., 496; Lunt vs. 
 Holland, 14 Mass., 149; Coovert vs. 
 O'Conner, 8 Watts, 470; Hoh-oke 
 
 Watei Power Co., vs. Lyman, 15 
 Wall., 500; Stolp vs. Hoyt, 44 111., 
 219; Berry vs. Snyder, 3 Bush, 266. 
 
 2 Gould on W^aters, Section 46, 
 Tilbury vs. Silva, 45 Ch. D., 98. 
 
 3 Ibid. Tyler vs. Wilkinson, 4 
 Mason's Cir. Ct., 397; Hay vs. 
 Sterritt, 2 Watts, 327; 2 Cooley's 
 Blackstone 18, and note 3; Angell 
 on Water Courses, Sec. 10; Lord 
 Hale's Treatise, De Jure Maris; 
 The Latin term, ad filiiin aquae, 
 is defined by Bouvier, as meaning, 
 " To the thread of the stream; to 
 the middle of the stream." The 
 word thread is defined by Johnson 
 " a small line, any thing continued 
 in course," Jones vs. Soulard, 24 
 How., 41; Wadsworth vs. Smith, 
 II Maine, 278, 281; in which the 
 Court said: "If a man be owner 
 of the land on both sides of the 
 stream or river, in common pre- 
 sumption he is the owner of the 
 whole river." 
 
 1 Hatch vs. Dwight, 17 Mass., 
 289.
 
 § 52, 53.] 
 
 COMMON LAW THEORIES. 
 
 75 
 
 ruus by the side of it ; in the former case he owns the whole 
 of the bed, and in the latter but half.^ 
 
 § 53. Same— Fresh Water Navigable Rivers.— Rule in 
 Englund. — Upon an examination it will be found that with 
 respect to the property in large rivers, which being navigable 
 in fact resemble tidal rivers, and being fresh partake of the 
 nature of small unnavigable streams, there is a great conflict 
 of both the early and more recent authorities as to whether 
 the river is to be held as private property or belonging to the 
 Crown, State or Public.^ Bracton, the Chief Justice of 
 England in the reign of Henry III, and one of the earliest 
 writers upon this subject, says that "all rivers are public, and 
 that the Crown or Public has the right of fishing therein and 
 the use of the banks. ' ' He makes no distinction between those 
 rivers which are navigable in fact and those which are not.^ 
 It is charged that Bracton follows the civil law, but from 
 whatever source this theory comes it is not the modern 
 law rule,** which is, as was held in the case of Murphy vs. 
 Ryan,^ that, beyond the point to which the tide ebbs and 
 flows, even in a river actually navigable and so used by the 
 
 1 Starr vs. Child, 20 Wend., 149; 
 in wbicli Mr. Justice Cowan in 
 construing the terms used in a 
 deed said: "But suppose we ex- 
 punge the words to the river, and 
 take the shores as the boundary; 
 the grantees become the proprie- 
 tors of the shore which when 
 applied to a fresh water river 
 means the bank." 
 
 Johnson's Dictionary, 5'//or^ and 
 Bank, signifies the earth aris- 
 ing on each side of the water. Id. 
 Bank. * * * "The bank and 
 the water are co-relative. YoU 
 cannot own one without touching 
 the other. But the bank is the 
 principal object; and when the 
 law once fixes the proprietorship 
 of that, the soil (jf the river 
 
 follows as an incident, or rather as 
 a part of the subject matter 
 usque filtitn aquae y * * * "It 
 is true that parts of the thing may 
 be excluded or excepted from the 
 grant, or it may exist in separate 
 bonds b}- prescription, or they 
 may be granted by some together 
 with the land; but in no case does 
 the mere omission to mention 
 them operate as an exclusion.^'' 
 See also ex parte Jennings 6 
 Cowan, 543, 551 and authorities 
 cited. 
 
 - (jould on Waters, Sec. 46-79. 
 
 •' I Ld. Kaym. 726; 6 Mod. 163; 
 Bracton, Lib. i Ch. 12, pp. 7 and 8. 
 
 1 Gould, Sec. 47; Angell, vSec. 551; 
 See Just Inst. L. 2 tit. Is. 4. 
 
 •>Ir. R. 2 C. L. T43.
 
 76 COMMON LAW THEORIES. [§ 53, 54. 
 
 public, the soil is prima facie in the riparian proprietors. 
 And the English law has become settled in accordance with 
 this view, that the title of the riparian owners extends to the 
 center of all non-tidal streams, whether the same are actually 
 navigable or not;^ but this title is subject to the general right 
 of navigation of the public. In respect to this right, the 
 common law authorities also differ, as to whether prescription 
 is the ground upon which the right of navigation in these 
 waters depends,^ or whether all tidal and fresh rivers which 
 are navigable in fact are common highways and prima facie 
 p2iblici juris. ^ But from whatever source the right of the 
 public to navigation is derived, this may be stated as the 
 common law rule, that all rivers entirely above the influence 
 of the tide, if they are so large as to be navigable in fact, 
 for the passage of vessels and boats, are, as well as the tidal 
 rivers, under the servitude of the public interest, and the 
 public have the paramount right to use the same as highways."* 
 
 §64. Same— Same— Rule in the Uiiiteil States.— In this 
 country the modern common law rule relative to the ownership 
 of fresh water navigable rivers has been followed as the law 
 
 I Price vs. Scotcher, g Q. B. D. 3 App. Cas. 641, 666; Bloomfield 
 
 162; Tilbury vs. Silva, 45 Cb. D. vs. Johnson, Ir. R. 8, C. L. 68; 
 
 98: Orr Ewing vs. Colquhoun, 2 Devonshire vs. Pattison, 20 O. B. 
 
 App. Cas. 839; Dwyervs. Rich, Ir. D. 263. 
 
 4, C. L. 424; Miller vs. Little, 2 King vs. Montigue,4B. & C. 
 
 2 L. R. Ir. 304; Lord Hale, De 598: Hargreave vs. Diddams, L. 
 
 Jure Maris et Portibus. In the case R. 10 O. B. 582; Coulson & Forbes 
 
 of Bath River Navigation Co. vs. on Waters Sees. 92, 93, 94. 
 
 Willis, 2 Cases of Ry. & Canals 7, :^ Hale De Jure Maris, Ch. i, 2, 
 
 where an act of Parliament had 3; Hargreaves Law Tracts, 6, 8, 9; 
 
 been passed, authorizing certain Williams vs. Wilcox, 8 Ad. & El. 
 
 persons to use a certain part of the 314, 332. 
 
 River Avon for navigation, and to ^ Royal Fishery of River Banne, 
 
 use the banks as towing paths, the Davies R. 149; Lord Hale explains 
 
 Court held that satisfaction should this question in his De Jure Maris, 
 
 first be given to the owners of the as follows: that all rivers above 
 
 land abutting on the river. Also the tidal point, are regarded as 
 
 see Ball vs. Herbert, 3 T. R. 253; public, not in reference to the 
 
 Hargreaves vs. Diddams, L. R. 10 property in the soil or the bed of 
 
 Q. B. 582; Bristow vs. Cormican, the river, but only in reference to
 
 § 54.] 
 
 COMMON LAW THEORIES 
 
 77 
 
 of many of the States, the State succeeding to the right of the 
 Crown, and the riparian owners owning the soil to the center 
 of the stream.^ In general this rule is in force in all of the 
 New England States, where the rivers of this class are com- 
 paratively unimportant, and navigable non-tidal rivers are 
 private p^opert^^'■^ 
 
 public use for navigation. Thus, 
 the riparian proprietors have 
 title to the bed of the rivers, 
 and the rights of fishery in rivers 
 of this class, subject to this right 
 of navigation. Gould, Chapter 
 IV; Colchester vs. Brooks, 7 Q B. 
 339; Callis on Sewers, 78, and 
 cases above cited. 
 
 1 Ingraham vs. Wilkinson, 4 Pick. 
 268; Consumers Canal Fund vs. 
 Keniphall, 26 Wend 404; Brown 
 vs. Chadbourne, 31 Me. 9; Adams 
 vs. Pease, 2 Conn. 481; Common- 
 wealth vs. Alger, 7 Cush. 53; Wal- 
 ker vs. Board of Public W'ks, 16 
 Ohio 540; Barnes vs. City of Racine, 
 4 Wis. 486. 
 
 2 Connecticnf. — Adams vs. Pease, 
 2 Conn. 481; Bissell vs.Southworth, 
 I Root. 269 ; Worner vs. South- 
 worth, 6 Conn. 471; Chapman vs. 
 Kimball, 9 Conn. 38, 41; Knfield 
 Bridge Co. vs. Hartford Ry. Co., 
 17 Conn. 40; Mill River Woolen 
 Mfg. Co. vs. Smith, 34 Conn. 463. 
 New Hampshire. — Scott vs. Wil- 
 son, 3 N. H. 321; Claremont vs. 
 Carlton, 2 N. H. 369, Rix vs. 
 Johnson, 5 N. H. 520; Norway 
 Plains Co. vs. Bradley, 52 N. H. 
 86; State vs. Gilmantbn, 9 N. H. 
 461; 14 N. H. 467; Greenleaf vs. 
 Kilton, II N. H. 530; vState vs. 
 Canterbury, 28 N. H. 195, 216; 
 Boscawan vs. Canterbury, 23 N. 
 H. 199: The limits of towns on a 
 stream extend to the center there- 
 
 of. Nicholls vs. Suncock Mfg. Co., 
 34 N. H. 345; Kimball vs. Schaff; 
 40 N. H. 190; Clement vs. Burns; 
 43 N.H. 609; Thompson vs. Andros- 
 coggin Co., 54 N. II. 548; 58 N. H. 
 108; Carter vs. Thuston, 58 N. 
 H. 104. VcrinoJit. — Fletcher vs. 
 Phelps, 28 Vt. 257, 262; Newton 
 vs. Eddy, 23 Vt. 319. Maine. — 
 Pejepsco Proprietors vs. Cushman, 
 2 Me. 94; Berry vs. Carle, 3 Me. 
 269; Morrisoji vs. Keene, 3 Me. 
 474; Lincoln vs. Wilder, 29 Me. 
 169; Spring vs. Russell, 7 Me. 273; 
 Simpson vs. Seavey, 8 Me. 128; 
 Wadsworth vs. Smith, 11 Me. 278; 
 26 Am. Dec. 525; Nickerson vs. 
 Crawford, 16 Me. 245; Brown vs. 
 Chadbourne, 31 Me. 9; 50 Am. 
 Dec. 641; Knox vs. Chaloner, 42 
 Me. 150; Moor vs. Veazie, 32 Me. 
 343; 31 Me. 360; 14 How. 568; 
 Bradford vs. Creesey, 45 Me. 9; 
 Strout vs. Millbridge Co., 45 Me. 
 76; Veazie vs. Diurnell, 50 Me. 
 479, 484. In Granger vs. Avery, 64 
 Me. 292, the Court held that the 
 owner of lands on both sides of a 
 river, above tide water, owned 
 also the islands therein. See also 
 Holden vs. Robinson Mfg., 65 Me. 
 215. Rhode Island. — Hughes vs. 
 Providence Railroad Co., 2 R. I. 
 508, 512; Olney vs. Fenner, 2 R. I. 
 211, 214. Afassachuscfis. — Ty\cx 
 vs. Wilkinson, 4 Mason. 397; King 
 vs. King, 7 Mass. 496; Stover vs. 
 Freeman, 5 Mass. 435, 438; 4 Am.
 
 78 
 
 COMMON LAW THEORIES. 
 
 [§54, 
 
 The English rule is also adopted in New Jersey, Delaware, 
 Maryland, Georgia, and in Michigan and Wisconsin, except 
 as to streams included in the original United States Survey, 
 and then the owners of the adjacent lands take at least to the 
 waters edge, subject always to the public right of navigation.^ 
 
 Dec. 155; Hatch vs. Dwight, 17 
 Mass. 289, 298; 9 Am. Dec. 145; 
 Ingrahani vs. Wilkinson, 4 Pick. 
 268; 16 Am. Dec. 342; Common- 
 wealth vs. Chapin, 5 Pick. 199; 
 Waterman vs. Johnson, 13 Pick. 
 261, 265; Bardswell vs. Ames, 22 
 Pick. 333, 354; Hopkins Academy 
 vs. Dickinson, 9 Cush. 544, 547; 
 Commonwealth vs. Alger, 7 Cush. 
 53. 9"> 97! McFarlin vs. Essex Co., 
 10 Cush. 304, 309; Blood vs. Nashua 
 Railroad Co., 2 Grey. 137, 139; 61 
 Am. Dec. 444; Barton vs. Richard- 
 son, 13 Allen. 146, 154; Common- 
 wealth vs. Vincent, 108 Mass. 441, 
 447; Knight vs. Nelder, 2 Cush. 
 199; 48 Am. Dec. 660. 
 
 1 Railroad vs. Schurmeir, 7 Wall., 
 272; Middleton vs. Prichard, 3 
 Scammon, 510; Wright vs. Day, 
 33 Wis., 260; Delaphine vs. Chi- 
 cago Ry. Co., 42 Wis., 214. Neiv 
 Jersey. — Arnold vs. Mundy, 6 N. 
 J. L. I; 10 Am. Dec. 356, 385 note; 
 Gough vs. Bell, 2 Zab., 441; Atty. 
 Gen. vs. Delaware Ry. Co., 27 N. 
 J. Eq., 18, 631; Bell vs. Gough, 3 
 Zab., 624; Martin vs. Wadell, 3 
 Harr., 495; 16 Peters, 367; Rundall 
 vs. Delaware Canal Co., i Wall., 
 Jr., 275; Atty. Gen. vs. Dela- 
 ware Ry. Co., 27 N. J., Eq. 
 I, 631; Society vs. Low 17 N. J. 
 Eq., 19; Cobb vs. Davenport, 32 
 N. J., 369;. Delaware. — Delaney 
 vs. Boston, 2 Harr., (Del.) 489; 
 Bickell vs. Polk, 5 Id., 325. il/ary- 
 /a«fi?. — Ridgley vs. Johnson, i 
 Bland Ch., 316, note; Baltimore vs. 
 
 McKim, 3 Id., 453; Brown vs. 
 Kennedy, 5 H. & J., 196, 205; 
 Binneys Case, 2 Id., 99; Casey vs. 
 Ingloes. I Gill, 430; Day vs. Day, 
 22 Md., 530, 537; Goodsell vs. Law- 
 son, 42 Md., 348; Chapman vs. 
 Haskins, 2 Md. Ch., 485. Georgia. 
 — Young vs. Harrison, 6 Ga., 130 
 141; Jones vs. Waterlot Co., 18 
 Ga., 539; Stanford vs. Mangin, 30 
 Ga., 355; Hendrick vs. Cook, 4 
 Ga., 241. 
 
 But in some of the above cases, 
 it does not seem clear whether the 
 term, "navigable" is used in its 
 common law sense, or not. Navi- 
 gable waters have been the sub- 
 ject of considerable legislative en- 
 actments in this state. See code 
 1882, section 2229, see also Moses 
 vs. Eagle Mfg. Co., 62 Ga., 455. 
 
 Michigan. — Lornian vs. Ben- 
 son, 8 Mich., 18; 77 Am. Dec, 
 435; Moore vs. Sanborne, 2 Mich., 
 519; 59 Am. Dec, 209; Norris vs. 
 Hill, I Mich., 202; Ryan vs. Brown, 
 
 18 Mich., 196; Clark vs. Campau, 
 
 19 Mich., 325; Watson vs. Peters, 
 26 Mich., 508; Bay City Gas Light 
 Co. vs. Industrial Works, 28 Mich., 
 182; Grand Rapids Booming Co. 
 vs. Jarvis, 30 Mich., 308; Thunder 
 Bay B. Co. vs. Speechly, 31 Mich., 
 336; Maxwell vs. Bay Citj' Bridge 
 Co., 41 Mich., 453, 466; Backus vs. 
 Detroit, 49 Mich., no; Lincoln vs. 
 Davis, 53 Mich., 375; Jones vs. 
 Lee, 77 Mich., 35; Turner vs. Hol- 
 land, 65 Mich., 453; Fletcher vs. 
 Thunder Bay B. Co., 51 Mich., 277;
 
 §54.] 
 
 COMMO^' LAW THEORIES. 
 
 79 
 
 The common law rule is also followed in Illinois where 
 no reservation is made by the Government.' Ohio also 
 holds that the owners of lands situated upon this class 
 of streams own the river beds subject to the public right 
 of navigation. 2 But in Penns3'lvania, North Carolina, Ten- 
 
 Webber vs. Pere Marquette Boom. 
 Co., 62 Mich., 626. Exception. — 
 Twogood vs. Hoj-t, 42 Mich., 609; 
 Rice vs. Ruddiman, 10 Mich., 125; 
 Pere Marquette Boom. Co. vs. 
 Adams, 44 Mich., 403; Ciute vs. 
 Fisher, 65 Mich., 48. 
 
 But see La. Plaisance Bay Har- 
 bor Co. vs. Monroe, Walk, (Mich.) 
 155, where the court held " that 
 the beds of all meandered streams 
 and navigable waters belong to 
 the state," which doctrine has 
 been overruled, and the doctrine 
 of the common law as to owner- 
 ship, is now the settled law of the 
 state, see Lorman vs. Benson, 8 
 Mich., 18. 
 
 Wisconsin. — ^Jamison vs. Petti- 
 bone, 2 Wis., 308; Stevens Point 
 Boom. Co. vs. Reilly, 44 Wis., 295; 
 46 Wis., 237; Cohn vs. Wausau 
 Boom Co., 47 Wis., 314; Walker vs. 
 Shepperdson, 4 Wis., 486; 2 Wis., 
 384; 60 Am. Dec, 423; Kimball 
 vs. Kenosha, 4 Wis., 321; Cobb vs. 
 Smith, 16 Wis., 692; Wood vs. 
 Hustis, 17 Wis., 429; Yates vs. 
 Judd, 18 Wis., 118; Wis. R. Imp. 
 Co. vs. Lyons 30 Wis., 61; Arimond 
 vs. Green Bay Co., 31 Wis., 316; 
 Olson vs. Merrill, 42 Wis., 203 
 Diedrich vs. N. W. Ry. Co., 42 
 Wis., 248; Jonesville vs. Carpenter, 
 46 N. W., 128. Exceptio7is. — 
 Wright vs. Day, 33 Wis., 260; 
 Delaphine vs. Chi. Ry. Co., 42 
 Wis., 214; 24 Am. Rep., 368; 
 Menasha Wooden Ware Co. vs. 
 Lawson, 70 Wis., 600. Indiana. — 
 
 Stenson vs. Butler, 4 Blackf., 285; 
 Gentile vs. State, 29 Ind., 409; 
 Gould on Waters, 150 note 2; Ross 
 vs. Faust, 54 Ind., 471, 475; 23 
 Am. Rep., 655; Dawson vs. James, 
 62 Ind., 162; Bainbridge vs. Sher- 
 lock, 29 Ind., 364; 95 Am. Dec. 
 644. It will be seen from an ex- 
 amination of the above authorities 
 that in this State the ownership of 
 the bed of a fresh water navigable 
 stream is somewhat in doubt. 
 
 '^Illinois. — Middleton vs. Prich- 
 ard, 3 Scam., 510; 38 Am. Dec. 112; 
 Eusigner vs. People, 47 111., 384; 
 95 Am. Dec, 494; Canal Trustees 
 vs. Haven, 5 Gilman, 548; Chicago 
 vs. McGinn, 51 111., 266; 2 Am. 
 Rep., 295; People vs. St. Louis, 5 
 Gilman, 351; Hubbard vs. Bell, 54 
 111., no; 5 Am. Rep., 98; St. Louis 
 vs. Rutz, 138 U. S., 226, 242; 35 
 Fed. Rep., 188; Illinois vs. 111. 
 Cent. Ry. Co., 33 Fed. Rep., 730; 
 Houck vs. Yates. 82 111., 179; 
 Washington Ice Co. vs. Shortall, 
 loi 111., 46; 40 Am. Rep., 196. See 
 Gould section 69 and 148, note i, 
 and as to system of navigation see 
 section 69 note 6. See also Hardin 
 vs. Jordin, 140 U. S., 371, in which 
 the Court held: " That it depends 
 upon the laws of each State to 
 what extent the prerogative of the 
 State to lands under the water 
 shall extend." 
 
 2Gavit vs. Chambers, 3 Ohio, 
 496; Lamb vs. Rickets, 11 Ohio, 
 311; Blanchard vs. Porter, 11 Ohio, 
 138; Walker vs. Board of Public
 
 80 
 
 COMMON LAW THEORIES. 
 
 [§ 54. 
 
 nessee.Iowa, Alabama and Virginia it has been determined that 
 the common law does not prevail, and that the ownership of 
 the bed or soil of all rivers which are navigable in fact for 
 any useful purpose of trade or agriculture, whether tidal or 
 fresh water, is in the State. ^ The ebb and flow of the tide 
 has been held not to be the real test of the navigability of a 
 river. If a river be deep enough for sea vessels to navigate 
 to and from the ocean, it is a navigable stream and held to be 
 public, and the boundary of the adjacent land is not the 
 thread or middle of the channel, but the edge of the water, at 
 low water mark.^ 
 
 Works, i6 Ohio, 540; Hickok vs. 
 Hine, 23 Ohio St., 523; 13 Am. 
 Rep., 255; Niehaus vs. Shepherd, 
 26 Ohio St., 40; Sloan vs. Bie- 
 railler, 34 Ohio St., 492, 512; Day 
 vs. R. R. Co., 44 Ohio St., 406, 
 
 419- 
 
 'i-Petmsylvania. — Carson vs. 
 
 Blazer, 2 Binney, 475; 4 Am. Dec, 
 463; Cooper vs. Smith, 9 S. & R., 
 26; Shrunk vs. Schuylkill Nav. 
 Co.; 14 S. & R. , 71 ; Hart vs. Hill, 
 I Whart. 124; Ball vs. Slack, 2 
 Whart., 5oy; 3° Am. Dec, 278; 
 Coovert vs. O'Conner, 8 Watts 470; 
 Bird vs. Smith, 8 Watts., 434; 34 
 Am. Dec, 483; Dalrymple vs. 
 Mead, I Grants Cas., 197; Zimmer- 
 man vs. Union Canal Co., I Watts. 
 & S., 346; Jones vs. Janney, 8 
 Watts. & S., 436, 443; 42 Am. Dec, 
 309; Bailey vs. Miltonberger, 31 
 Penn. St., 37; Baker vs. Lewis, 33 
 Penu. St., 301; Flanigan vs. Phila- 
 delphia, 42 Penn. St., 219; Monon- 
 gahela Bridge Co. vs. Kirks, 46 
 Penn. St., 112; 84 Am. Dec, 527; 
 McKeen vs. Delaware Canal Co., 
 4g Penn. St., 424; Tinacum Fish- 
 ing Co. vs. Carter, 61 Penn. St., 
 21; 100 Am. Dec, 597; Wainright 
 vs. McCullough, 63 Penn. St., 66; 
 Zog vs. Commonwealth, 70 Penn. 
 
 St., 138; Poore vs. McClure, 77 
 Penn. St., 214; Fisher vs. Halde- 
 man, 20 How., i86; Simpson vs. 
 Neill, 89 Penn. St., 183; Rundle 
 vs. Del. Canal Co., 14 How. 80; 
 Fulmer vs. Williams, 122 Penn. St., 
 191. North Carolina. — Authori- 
 ties Conflicting. — Wilson vs. 
 Forbes, 2 Dev., 30; Ingraham vs. 
 Threadgill, 3 Dev. 59; Collins vs. 
 Benbury, 3 Ired., 277, 5 Ired., 118; 
 Smith vs. Ingram, 7 Ired., 175; 
 Gillian vs. Bird, 8 Ired., 280, 284; 
 P'agan vs. Armistead, 11 Ired. 433; 
 Lewis vs. Keeling, i Jones Law., 
 299; State vs. Dibble, 4 Jones, 107; 
 Ward vs. Ellis, 6 Jones Law, 183; 
 State vs. Glen, 7 Jones Law, 321; 
 Cornelius vs. Glenn, 7 Jones Law, 
 512; Skinner vs. Hettick, 73 N. C. 
 53; State vs. Pool, 74 N. C, 402, 
 407; State vs. Tomlinson, 77 N. C. 
 528; 
 
 2 State vs. jWaddington, i Me. 
 Cord, 580; In State vs. Narrow 
 Island Club, 100 N. C. 477, 481; the 
 Court said, in speaking of waters, 
 "The public right arises only in 
 case of their navigability; whether 
 they are navigable or not, depends 
 upon their capacity for substan- 
 tial use, as indicated. They can be 
 so used for the free passage of
 
 §54.j 
 
 COMMON LAW THEORIES. 
 
 81 
 
 In the following States the authorities are divided upon the 
 subject. In New York the earlier decisions hold that the 
 common law rule does not apply •} but the later decisions adopt 
 
 vessels; the public have only the 
 right of navigation. The title of 
 the bed of the river, lake or sound 
 in such case, and all special privi- 
 leges and advantages incident 
 thereto vest and remain in the 
 owner thereof, subject only to the 
 public easement." Tennessee. — 
 Elder vs. Burrus, 6 Humph. 358, 
 367; in which Mr. Justice Thorley 
 said: "Shall it be held that the 
 interest of the cammunity of Eng- 
 land requires that their navigable 
 streams should belong to the 
 Crown as public property, but 
 that in all the States bordering on 
 the Mississippi and its mighty 
 tributaries, these great and impor- 
 tant highways, by which such an 
 amount of merchandise of every 
 kind and description is annually 
 sent to market, shall belong to 
 private individuals because the 
 tide does not ebb and flow in 
 them? Surely not unless we are 
 compelled by positive law to so 
 maintain." Roberts vs. Cunning- 
 ham, Martin & Yerg. 67; Stuart 
 vs. Clark, 2 Swan, i; 58 Am. Dec. 
 49; Sighs vs. State, 7 Baxter 493; 
 Martin vs. Mance, 3 Head 649; 
 Memphis vs. Overton, 3 Yerger 
 387; Holbert vs. Edens, 5 Lea. 204; 
 40 Am. Rep. 26; Irwin vs. Brown, 
 Tenn. 12 S. W. 340; Goodwin vs. 
 Thompson, 15 Lea. 209; 54 Am. 
 Rep. 410. In those of the above 
 cases in which a definite boundary 
 line of riparian lands is fixed, it is 
 placed at low water mark. Iowa. 
 — McMannus vs. Carmichael, 3 
 Iowa I ; Leading Case; Haight vs. 
 
 Keokuk, 4 Iowa 199, 212; Grant 
 vs. Davenport, 18 Iowa 179, 185; 
 Tawlin vs. Dubuque Ry. Co. 32 
 Iowa 106, 7 Am. Rep. 176; Kraut 
 vs. Crawford, 18 Iowa 549; Musser 
 vs. Hershey, 42 Iowa 356; Hough- 
 ton vs. C. D. & M. R. Co., 47 Iowa 
 370; Barney vs. Keokuk, 94 U. S. 
 324; Renwick vs. D. & N. W. Ry. 
 Co., 49 Iowa 664, 669; Moffatt vs. 
 Brewer, 2 G. Greenq^ 348. Ala- 
 bama. — Bullock vs. Wilson, 2 Por- 
 ter 436; Hagan vs. Campbell, 8 
 Porter 9; Lewen vs. Smith, 7 Por- 
 ter 42S; Mobile vs. Eslava, 9 
 Porter 577; 16 Peters U. S. 234; 
 Magee vs. Hallett, 22 Ala. 699; 
 Stein vs. Ashby, 24 Ala. 521; 30 
 Ala. 363; Ellis vs. Carey, 30 Ala. 
 725; Rhodes vs. Otis, 33 Ala. 578; 
 Peters vs. New Orleans Ry. Co., 
 56 Ala. 52S; Williams vs. Glover, 
 66 Ala. 189; Walker vs. Allen, 72 
 Ala., 456; Sullivan vs. Spotwood 
 82 Ala. 163. Virginia. — i Rev. 
 Code pp. 142, 143; also tit. I9, ch. 
 62, sec 1; Norfolk City vs. Cook, 
 27 Gratt. 430; Mead vs. Haynes, 3 
 Rand 33, 36; Home vs. Richards, 
 4 Call 441; 2 Am. Dec. 571; French 
 vs. Bankhead, 11 Gratt 136; Rich- 
 ards vs. Home, 2 Wash. 36; Martin 
 vs. Beverly, 5 Call. 444. 
 
 1 Palmer vs. Mulligan, 3 Caines 
 307; 2 Am. Dec, 270; People vs. 
 Piatt, 17 Johns 195; Hooker vs. 
 Cummings, 20 Johns 90; 11 Am. 
 Dec. 549; Canal Appraisers vs. 
 People, 5 Wend. 423; People vs. 
 Canal Appraisers, 13 Wend. 355; 
 17 Wend. 571; People vs. Seymour, 
 6 Cowan 579; Ex parte Jenkins 6
 
 82 
 
 COMMON LAW THEORIES. 
 
 [§54. 
 
 the rule, even as to such rivers as the Hudson/ with the 
 exception of the Mohawk^ and the Niagara rivers.^ In South 
 Carolina also the earlier cases held that the common law rule 
 was inapplicable to the condition of the State, ^ but in the 
 later cases the Court held that the rule does apply. ^ The 
 same can be said of Kentucky.*^ In Mississippi also there 
 seems to be a difference of opinion." 
 
 Cowan 518, and note; People vs. 
 Seymour, 6 Cowan 580; Authur vs. 
 Case, I Paige 447 ;Varick vs. Smith, 
 5 Paige 137; 9 Paige 547; 28 Am. 
 Dec. 417; Stars vs. Child, 20 Wend. 
 149; 5 Deiijo. 599, 4 Hill 369; 
 Jackson vs. Holstead, 5 Cowan 216. 
 1 Chenango Bridge Co. vs. Paige, 
 83 N. Y. 178; 8 Hun. 292, in which 
 the Court held that a fresh water 
 stream is the private property of 
 the riparian owners, in which the 
 public have an easement only for 
 navigation and for floating logs 
 and timber, a right of passage, 
 and nothing more, as in a common 
 highway, and the proprietor has a 
 right to use the land and water of 
 the stream in any way not incon- 
 sistent with the easement. Pier- 
 pont vs. Loveless, 72 N. Y. 211; 4 
 Hun. 696; Mottvs. Mott, 68 N. Y. 
 246; 8 Hun. 474; Morgan vs. King, 
 35 N. Y. 454; 18 Barb. 277; 30 id. 
 9; Buffalo Pipe Line Co. vs. N. Y. 
 R. Co., 10 Abb. N. Cas. 107, 116, 
 note. As to the Hudson see Smith 
 vs. Rochester, 92 N. Y. 463; 44 
 Am. Rep. 393. 
 
 2 Canal Appraisers vs. People, 
 17 Wend. 571; People vs. Canal 
 Appraisers, 33 N. Y. 461; Crill vs. 
 Rome, 47 How. P. 398; People 
 vs. Gutchess, 48 Barb. 656, 667; 
 Fort Plain Bridge Co., vs. Smith, 
 
 3N. Y. 44- 
 
 3 Kingman vs. Sparrow, 12 Barb. 
 
 201; Canal Appraisers vs. People, 
 17 Wend. 591, 597. 
 
 4 In Kates vs. Waddington, i 
 McCord 580, 10 Am. Dec. 699; it 
 was held that a river merely cap- 
 able of being navigable, was pri- 
 vate. In Jackson vs. Lewis, Clieves, 
 S. C. 259, the law is considered in 
 doubt. 
 
 5 McCullough vs. Wall, 4 Rich. 
 68, 86; Boatwright vs. Bookman, 
 Rice 447, Noble vs. Cunningham, 
 McMull Cli. 289; Jackson vs. Lewis, 
 Cheves, 259; State vs. Hickson, 5 
 Rich. 447; State vs. Columbia, 27 
 S. Car. 137, 146; Shands vs. Trip- 
 let, 5 Rich. Eq. 76, 79. 
 
 t' .'\s to early cases see Louis- 
 ville vs. U. S. Bank, 3B. Mon. 138, 
 143, Thurman vs. Morrison, 14 B. 
 Mon. 367; Morrison vs. Thurman, 
 17 B. Mon. 249; 66 Am. Dec. 153: 
 Hawksville vs. Lander, 8 Bush. 
 679; Trustees vs. Wagnon, i A. K. 
 Marsh. 243; Cockrell vs. McQuinn, 
 4 Mon. 61; Bruce vs. Taylor, 2 J. 
 J. Marsh 160; Hart vs. Rogers, 9. 
 B. Mon 418, 422. Late Cases: 
 Berry vs. Snyder, 3 Bush. 266, 274; 
 96 Am. Dec. 619; Williamsburg 
 Boom. Co. vs. Smith, 84 Ky. 372; 
 Kentucky Lumber Co. vs. Green, 
 87 Ky. 257; Louisville Bridge Co. 
 vs. Louisville, 81 Ky. 189; Miller 
 vs. Hepborn, 8 Buch. 326. 
 
 "Gould sec. 63 and 64; The 
 Magnolia vs. Marshall, 39 Miss.
 
 55.] 
 
 COMMON LAW THEORIES. 
 
 83 
 
 §55. Sjiine — Same— United States Survey.— In those 
 States in which the rule extending the riparian owner's title 
 to the center of the stream had not been previously adopted, 
 and in which the lands were originalh- surveyed under the 
 laws of the United States, the riparian owners take at least to 
 the waters edge, regardless of the lines run by the surveyors 
 along the river banks. i This gives the owners all the 
 incidents of riparian proprietorship to the use of the water, 
 including river frontage, with right of access to and from the 
 adjoining land -^ and gives them the right to accretions, so 
 
 109; Morgan vs. Reading, 3 S. & 
 M. 366; Commissioners vs. Withers, 
 29 Miss. 21. 
 
 1 Railroad vs. Schurmeier, 7 
 Wall, 273; 10 Minn., 82; in this 
 case Chifford J. says: " Congress, 
 in making a distinction between 
 streams navigable and those not 
 navigable, intended to provide 
 tliat the common law rules of 
 riparian ownership, should apply 
 to lands bordering on the latter, 
 but that the title to the lands 
 bordering on navigable streams, 
 should stop at the stream, and 
 that all such streams should be 
 deemed to be and remain public 
 highways. Although such riparian 
 proprietors are limited to the 
 stream, still they also have the 
 right to construct suitable land- 
 ings and wharves, for the con- 
 venience of commerce and navi- 
 gation, as is accorded riparian 
 proprietors, bordering on naviga- 
 ble waters, affected by the ebb and 
 flow of the tide." In Packer vs. 
 Bird, 137 U. S., 661 ; the Court held 
 "that the undoubted rule of the 
 common law that the title of 
 owners of land bordering on navi- 
 gable rivers, above the ebb and 
 n jw of the tide, extends to the 
 
 middle of the stream, having 
 been adopted in some of the 
 States, Federal Courts must con- 
 strue grants of the general gov- 
 ernment without reference to the 
 rules of construction adopted by 
 the States for such grants by 
 them." 
 2 Yates vs. Milwaukee, 10. Wall, 
 497; where the Court held : A 
 riparian proprietor, whose land is 
 bounded by a navigable river, has 
 the right of access to the navigable 
 part of the river, and the right to 
 make a landing, wharf or pierfor his 
 own use or for the use of the public. 
 
 The riparian right is property, 
 and is valuable, and the owner 
 can be deprived of it only if 
 necessary that it be taken for the 
 public good, upon due compensa- 
 tion. 
 
 A municipal corporation can 
 not, by its mere declaration that 
 a structure is a nuisance, to re- 
 moval by any persons supposed to 
 be aggrieved, or even by the city 
 itself. 
 
 A city cannot by creating a 
 mere artificial and imaginary dock 
 line, deprive riparian owners of 
 the right to avail themselves of 
 the advantage of the navigable
 
 84 
 
 COMMON LAW THEORIES. 
 
 [§ 55. 
 
 that they are not separated from the water of the river. ^ The 
 States of Missouri, Minnesota, Arkansas, Oregon, Nevada, 
 Kansas, Florida and California follow this rule and riparian 
 owners upon a navigable stream take at least to the waters 
 edge.^ 
 
 channel, by building wharves and 
 docks to it. Dutton vs. Strong, i 
 Black, 23; Sherlock vs. Bainbridge, 
 41 Ind., 35. 
 
 1 Banks vs. Ogden, 2 Wall., 57; 
 Kraut vs. Crawford, 18 Iowa, 549; 
 in which the Court held that a 
 patentee of land which is situated 
 upon the banks of a navigable 
 stream, is entitled to all the land 
 adjacent to his grant to the waters 
 edge. Benson vs. Morrow, 61 Mo., 
 345; Lamme vs. Bush, 70 Mo., 463; 
 
 2 Missouri. — Benson vs. Morrow, 
 61 Mo., 345; Lamme vs. Bush, 70 
 Mo., 462; Jones vs. Soulard, 24 
 How., 41. "In Missouri the 
 riparian proprietor owns only to 
 the waters edge," Blackwell, J. in 
 Myers vs. St. Louis, 8 Mo. App., 
 272. Minnesota. — Schurmeier vs. 
 St. Paul Ry. Co., 10 Minn., 82, 
 102; 88 Am. Dec, 59; 7 Wall., 272; 
 Union Dep. Co. vs. Brunswick, 31 
 Minn., 297. In the opinion of 
 Castner vs. The Dr. Franklin, i 
 Minn., 73, the Court said: "The 
 navigation of small streams has 
 been embarrassed and impeded b}' 
 individual ownerships and im- 
 provements. Lands bounded by 
 navigable rivers have carried, as 
 incidents of this circumstance, the 
 exclusive right to the soil to the 
 middle of the stream, and where 
 they were united in the same 
 person on both sides of the river, 
 such person has exercised exclu- 
 sive control of the entire channel 
 adjacent. * * * From this view. 
 
 however we have taken of the law 
 in this case, we have not deemed 
 it necessary to declare judicially 
 that the principle of the common 
 law we have been discussing is not 
 applicable to our situation." Ore- 
 gon. — Minto vs. Delancy, 7 Oreg., 
 337, where the court held that 
 where a navigable river was mean- 
 dered, in making the public 
 sur\'ey, and the United States has 
 granted land bounded by the 
 meandered line, the grantee takes 
 the river. The stream and not 
 the meander line, is the true 
 boundary of the riparian owner. 
 Weise vs. Or. Iron Co., 13 Oreg., 
 496; Moore vs. Williamette Transp. 
 Co., 7 Ore., 355; Johnson vs. 
 Knott, 13 Oreg., 308, 311; Parker 
 vs. West Cost Packing Co., 17 
 Oreg., 510, 515; Shaw vs. Oswego 
 Iron Co., 10 Oreg., 371, 45 Am. 
 Rep., 146. Nevada. — Shoemaker 
 vs. Hatch, 13 Nev. 261 ; where it was 
 held that the water-course, and 
 not the meander line by which it 
 surveyed, is the boundary of the 
 fractional sub-division of land. 
 Kansas. — Woods vs. Fowler, 26 
 Kan., 682; 40 Am. Rep., 330; was 
 an action by the owner of lands 
 bordering on the Kansas River, 
 to restrain certain parties from 
 cutting and removing ice formed 
 opposite his land. The stream 
 had once been used for navigation, 
 but had been subsequently de- 
 clared non-navigable by the legis- 
 lature ; and the Court by Brewer, J.,
 
 § 56.] COMMON LAW THEORIES. 85 
 
 § 5(). Nature of Ownership in a Watereoni-se.— Under the 
 
 common law. as decided in the ancient Kn.i?lish cases, "a 
 watercourse begins ex jure naturae, and having taken a 
 certain course naturally, cannot be diverted."^ But all ripar- 
 ian owners, through whose land a stream naturally flows, may 
 enjoy the privilege of using it. The property in the water 
 itself, therefore, by virtue of this ownership, is in its nature 
 usu-fructuary, and the riparian proprietor has no title to the 
 water itself."^ As Blackstone tersely 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, usu-fructuary property therein; where- 
 fore, if a body of water runs out of my pond into another 
 man's, I have no right to reclaim it. But the land which 
 that water covers is permanent, fixed and immovable, and, 
 therefore, in this, I may have a certain substantial property, 
 of which the law will take notice, and not of the other. "^ 
 The rights of all of the riparian proprietors upon a stream 
 are equal, therefore, one proprietor, though he has an 
 undoubted right to use the waters for hydraulic purposes as 
 it passes his land, yet he must so use it, as to do no injury 
 to any other proprietor.^ This is the necessary result of the 
 perfect equality of right among all the proprietors. Thus, 
 each proprietor upon the stream may insist that its 
 
 <lelivering the opinion, declared decided that the vSacrain«>nto Riv- 
 
 that "the act of the Legislature did er being navigable in fact, a title 
 
 not extend to the riparian owners upon it extends no farther than 
 
 title to the thread of the river, and the edge of the stream, the Court 
 
 that the title to the soil being in accepts that decision as expressing 
 
 tlie State, and the stream being in the law of that State. 32 Cent. L. 
 
 a public highway, ownership of J. 294, 297. 
 
 the ice would rest in the general l Shury vs. Piggot, Bulstrode's 
 
 public, or in the State, as the Rep. 339; Merritt vs. Parker, i 
 
 representative of the public." Coxe's (N. J.) 460. 
 
 l-'lorida. — Rocki vs. Cone, 25, 2 See Gould on Waters, 395, note 
 
 I-la., I. California. — Lux vs. 2. 
 
 Haggin, 69 Cal., 255; Packers vs. •' 2 Blackslone, Com. 18. 
 
 Bird, 71 Cal., 134, 137, U. S., 661; •» 2 Hen. IV, II B.; 22 Hen. VI; 
 
 in which the Supremo Court of 11 Rol. Al)r. 107; Tyler vs. Wil- 
 
 the United Stales lieM, Uial the kinson, .1 Mason's Cir. Ct. Rep. 
 
 highest Court of California having .(oo.
 
 86 
 
 COMMON LAW THEORIES. 
 
 [§56. 
 
 waters shall flow to his land in the usual quantity, at its 
 natural place and height, and that it shall flow ofif his land to 
 his neighbor below, in its accustomed place and at its usual 
 level. ^ From the above principles, it may be seen that the 
 right of private property in a stream of water is derived as a 
 corporal right or hereditament from, or is embraced by, the 
 ownership of the soil over which it naturally passes.^ This 
 right is a part of the freehold of which no man can be dis- 
 
 1 Shury vs. Piggot, 3 Bulst, 339; 
 Brown vs. Best, i Wilson, 174; 
 Miner vs. Gilmour, 12 Mo. P. C. 
 156; Wright vs. Howard, i Sim. & 
 Stu. 190, in which was held that 
 every owner of land on the hanks 
 of a river, has, prima facie ^ an 
 equal right to use the water, and 
 cannot acquire a right to throw 
 the water back on the proprietor 
 above, or to divert it from the 
 proprietor below, without a grant 
 or twenty years enjoyment, which 
 is evidence of a grant. Dickinson 
 vs. Grand Junction Canal Co., 7 
 Exch. 282; Rex vs. Traford, i B. 
 & Ad. 259; 20 Enc. C. L. Rep. 498; 
 Saunders vs. Newman, i B. & Ad. 
 258; 4 Eng. C. L. Rep. 123; Wood 
 vs. Waud, 3 Ex. Ch. 748; Embrey 
 vs Owen, 6 Ex. Ch. 353; Lyon vs. 
 Fishmongers, Co. i App. Cas. 662; 
 Chaseraore vs. Richards, 5 H. & N. 
 989; Mason vs. Neil, 3 B. & Ad. 
 304; Crossley vs. Lightowler, L. R. 
 3 Eq. 296; Atchinson vs. Peterson, 
 20 Wall. 507, in which it was held 
 that "on the mineral lands of the 
 public domain, in the Pacific States 
 and Territories, the doctrine of the 
 common law, declaratory of the 
 rights of riparian proprietors, re- 
 specting the use of running waters, 
 are inapplicable, or applied only 
 to a very limited extent, to the 
 necessities of miners, and inade- 
 
 quate for their protection. Their 
 prior appropriation gives the bet- 
 ter right to running waters, to the 
 extent in quantity and quality 
 necessary for the use to which the 
 water is applied." Davis vs. Get- 
 chell, 50 Maine, 602 ; 79 Am. 
 Dec. 636, and note; I'illsbury vs. 
 Moore, 44 Maine, 154; 69 Am. Dec. 
 91; Johns vs. Stevens, 3 Vt. 308; 
 Anthony vs. Laphani, 5 Pick. 175; 
 Cary vs. Daniels, 8 Met. 466; Pratt 
 vs. Lamson, 2 Allen, 275, 285; 
 Tourtelot vs. Phelps, 4 Gray, 370; 
 Cowles vs. Kidder, 24 N. H. 365; 
 Buddington vs. Bradley, 10 Conn. 
 213; 26 Am. Dec. 386; Gillett vs. 
 Johnson, 30 Conn. 180; Taylor vs. 
 Welch, 6 Ore. 199; King vs. Tif- 
 fany, 9 Conn. 162; Coffman vs. 
 Robbins, 8 Ore. 278; Hutchinson 
 vs. Coleman, 5 Hoi. (N. J.) 74; 
 Bowman vs. Wether, 2 McLean, 
 376; Dilling vs. Morey, 6 Ind. 324: 
 63 Am. Dec. 385; Evans vs. Merri- 
 weather, 3 Scan. 492; 38 Am. Dec. 
 106: Rhodes vs. Whitehead, 27 
 Texas, 304; Davis vs. Fuller, 12 
 Vt. 178; 36 Am. Dec. 334; Adams 
 vs. Barne)', 25 Vt. 225; Howe 
 Scale Co. vs. Terry, 47 Vt. 109; 
 3 Kent's Com. 439, side paging; 
 Angell on W. C, Sec. 95-97; Gould 
 on Waters, Sec. 204-213. 
 - Reynolds vs. McArthur, 2 Peters 
 417.
 
 § 56, 57.] COMMON LAW THEORIES. 87 
 
 seized but by the lawful judgment of his peers, or by due 
 process of law.^ Still no action will lie to recover the 
 possession of a watercourse, by that name, or for the re- 
 covery of the water itself, as for so many cubical yards or for 
 so many acres of water; but as Blackstone states, the action 
 must be brought for so many acres of land covered by water. ^ 
 
 § 57. Riijhts of Riparian Proprietors in General.— The 
 
 rights of riparian proprietors are such as grow out of, or are 
 connected with, their ownership of the banks of the vStreams 
 and rivers. And for the purpose of this work no distinction 
 will be made in the discussion of those rights as to whether 
 they relate to public or navigable streams, or private or non- 
 navigable, since riparian rights proper depend upon the 
 ownership of the land contiguous to the water, and are in 
 general the same, whether the proprietor of such land owns 
 the soil under the water or not. That this is so, is significant 
 from the fact that the word ' ' ripa ' ' from which our word 
 " riparian " comes refers to the bank and not the bed of the 
 stream.-' In Delaphine vs. Chicago and North Western Rail- 
 way Co.^ the Court by Mr. Justice Cole upon this subject 
 said, " But while the riparian proprietor only takes to the 
 \yater line, it by no means follows, nor are we willing to admit 
 that he can be deprived of his riparian rights without compen- 
 sation. As proprietor of the adjoining land, and as connected 
 with it, he has the right of exclusive access to and from the 
 waters of the lake at that particular place; he has the right to 
 build piers and wharves in front of his land out to navigable 
 waters in aid of navigation, not interfering with the public 
 use. These are private rights incident to the ownership of 
 the shore, which he possesses, distinct from the rest of the 
 public. All the facilities which the location of his land with 
 
 1 Gardner vs. Newl>c'rji, 2 Johns to the party, the power cannot he 
 Ch. 162, where it was held, that legally exercised. Beidelman vs. 
 though the legislature has power Foulk, 5 Watts. 308. 
 to Uike private property of this '^ 2 Blackstone Com. 18; Run- 
 kind for useful and necessary pub- nington on Ivject. 131. 
 lie purposes, it is bound to provide 3 Rouviers Law Die. vSnh. Rij)a., 
 a fair compensation to the Individ- Gould on Waters, 14S. 
 ual whose ])roperty is taken, and •I 42 Wis., 214 
 until a just indeinnily is afforde 1
 
 88 COMMON LAW THEORIES. [§ 57, 58. 
 
 reference to the lake affords he has the right to enjoy for pur- 
 pose of gain or pleasure; and they oftentimes give property thus 
 situated its chief value. It is evident from the nature of the case 
 that these rights of user and of exclusion are connected with 
 the land itself grow out of the location and cannot be materially 
 abridged or destroyed without inflicting an injury upon the 
 owner which the law should redress. It seems unnecessary 
 to add the remark, that these riparian rights are not common 
 to the citizen at large, but exist as incidents to the right of 
 the soil itself adjacent to the water. In other words, accord- 
 ing to the uniform doctrine of the best authorities, the foun- 
 dation of riparian rights, ex vi terjni?ii, is the ownership of 
 the bank or shore. In such ownership they have their origin. 
 They may and do exist, though the fee in the bed of the 
 river or lake be in the State. If the proprietor owns the bed 
 of the stream or lake this may possibly give him some addi- 
 tional right; but his riparian rights, strictly speaking, do not 
 depend on the fact." 
 
 §58. Same — (,'oiitiiiuetl. — Whether riparian rights attach 
 or not the principal question depends upon the ownership 
 of the land which is contiguous to and touches upon the 
 water. ^ And as to whether the land is in actual contact with 
 the flow of the stream, whether that contact be lateral or 
 vertical, it is necessary that it should exist. "-^ So if the 
 government surveyors ran a meander line along the bank of 
 a stream in surveying public lands, and left a narrow strip 
 of land between their line and the water at its ordinary 
 height, the patent of the surveyed land is limited by the 
 meander line, and the patentee is not a riparian owner. ^ 
 Riparian rights may exist in a person who is not the owner 
 in fee but who is entitled to the exclusive possession of the 
 land contiguous to the water. Such a person is entitled to 
 
 1 Jones vs. Johnson, i8 How. 150; "^ Lammer vs. Nissen, 4 Neb. 250, 
 Johnson vs. Jones, i Black 209; 452; where it was held that an en- 
 Bates vs. 111. Cent. Ry. Co., i try of government lands, bounded 
 Black 204. by a meandered line, does not 
 
 2 Miner vs. Gilmour, 12 Moo. P. include land 13'ing at the time 
 C. 131; Chasemore vs. Richards, 7 between such meandered line and 
 H. L. Cas. 349, 373, 382; Lord vs. the bank of the river. 
 Comr'sof vSidney, 12M0U. P.C.473.
 
 § 58, 59.] COMMON LAW THEORIES. 89 
 
 all of the rights incident to the land.^ So also riparian rights 
 attach to lakes and ponds, and are not dependent upon the 
 existence of a current. This will be discussed hereafter. "-^ It 
 must also be borne in mind that these riparian rights are a 
 species of property which belong to their owner, and do not 
 depend at all upon the fact as to whether that owner actually 
 uses any of the rights or not. A person trespassing upon 
 those rights cannot insist that equity ought to interfere, for 
 the reason that the owner does not need or want any of his 
 rights afforded by the stream for his own use. No man is 
 justified in withholding property from the owner, when 
 required to surrender it, on the ground that he does not need 
 its use, as the owner may do what he will with his own.-^ 
 
 § 59. Same.— Kiglit to Natural Flow of Water— One of 
 
 the principal common law rights of riparian owners or pro- 
 prietors is to have the stream which washes their banks flow 
 as it is wont by Nature, without material diminution or alter- 
 ation. This is so whether the stream be navigable or non-navi- 
 gable in the absence of grant, license or prescription limiting 
 their rights. ^ Or as the rule is laid down by Mr. Justice 
 Story, ^ " Prima facie, every proprietor on each bank of a 
 river is entitled to the land covered with the water to the 
 middle of the thread of the stream, or, as is commonly 
 expressed, usque ad filiun aquae. In virtue of this ownership 
 he has a right to the use of the water flowing over it, in its 
 
 1 Hanford vs. St. Paul Ry. Co., Getchell, 50 Maine, 602; Pillsbury 
 
 43 Minn. 104. vs. :Moore, 44 Maine, 154; Anthony 
 
 •^ Turner vs. Holland, 65 Mich. vs. Lapham, 5 Pick., 175; Gary vs. 
 
 453. Daniels, 8 Met., 466; IMerrifield 
 
 ■■5 Corning vs. Troy Iron, etc. Co. vs. Worcester, no Mass., 219: 
 
 40 N. Y. 206; Van Sickle vs. Gillett vs. Johnson, 30 Conn., 180; 
 
 Haines, 7 Nev. 249. Rhodes vs. Whitehead, 27 Tex., 
 
 4 Shury vs. Piggot, 3 Bulst. 339; 304; Hill vs. Newman, 5 Cal., 445; 
 
 Brown vs. Best, i Wilson, 174; Taylor vs. Welch, 6 Ore., 198; 
 
 Miner vs. Gilmour, 12 Mo. P. C, Coffnian vs. Robins, 8 Ore., 278; 
 
 . 156; Wright vs. Howard, i Sim. 3 Kent Com., 439; Angell on W. 
 
 & Stu., 190; Saunders vs. New- C, 95; Gould on Waters, 204; 
 
 man, I. B. & Add., 258; I^yon vs. Pom. on Riparian rights section 8 
 
 Pishmongers Co., i App. Cas., 662; and cases cited. 
 
 Bealy vs. Shaw, 6 Kast., 208; Mason •> Tyler vs. Wilkinson, 4 Mason'a 
 
 vs. Hill, 3 ]'.. & Ad. 304; Davis vs. Cir. Ct., )<x).
 
 ^0 
 
 COMMON LAW THEORIES. 
 
 [ § 59. 
 
 natural current, without diminution or obstruction. But 
 strictly speaking he has no property in the waters itself but a 
 simple use of it as it passes along. "^ By the rules of common 
 law all proprietors of lands have precisely the same right to 
 waters flowing through their domains, and one can never be 
 permitted to so use the stream as to injure or anno}' those who 
 are situated on the course of it, either above or below him. 
 And if any person on the river interpose an impediment, 
 interrupts or diverts the course of the water to the injury of 
 others, successive actions on the case would lie until the 
 interruption should be removed.'-^ This right to use the water 
 at its ordinary flow is regarded and protected by the common 
 law authorities as property, -"^ not as a mere easement or 
 
 spring of water rises upon the 
 land of one owner, and from it 
 runs a stream on to the land of 
 another the owner of the land upon 
 which is the spring has no right 
 to divert the stream from its 
 natural channel although the 
 waters of the stream are not more 
 than sufficient for his domestic 
 uses for his cattle and for irrigat- 
 ing his land. Frankum vs. Fal- 
 mouth, 25 Eng. Com. Law. Rep., 
 526; King vs. Tiffany, 9 Conn., 162; 
 Buddington vs. Bradley, 10 Conn., 
 213; where was held that the 
 owner of land through which a 
 water-course passed has a right to 
 the flow of the water in its natural 
 course without diminution or 
 alteration. McEalmont vs. Whit- 
 taker, 3 Rawle's, 84; Hendricks 
 vs. Johnson, 6 Post, (Ala.) 472; 
 Pugh vs. Wheeler, 2 Dev. and 
 Bat., (N.C .) 50; Merritt vs. Parker, 
 I Coxe's N. J. L., 460. 
 
 3 Nuttall vs. Bracewell, L. R. 2 
 Ex., i; Hadley vs. Hadley Mfg. 
 Co., 4 Gray, 140; Gould vs. Boston 
 Duck Co., 13 Gray, 442, 450; Ash- 
 ley vs. Pease, 18 Pick., 268; Blanch- 
 ard vs. Baker, 8 Maine, 253: Kee- 
 
 1 See also Webb vs. Portland 
 Mfg. Co., 3 Sumn. Cir. Ct. R., 
 198; Bomans Devesees vs. Latham 
 2 McLeon, 376; Action vs. Blun- 
 dell, 12 M. and W., 324; Owen vs. 
 Field, 102 Mass., 104; Corning vs. 
 Troy Iron Factory, 40 N. Y., 191; 
 39 Barb., 311; Hay vs. Sterrett, 2 
 Watts, 327; Tyler vs. Wilkinson, 4 
 Mason, 377; Callis on Sewers, 268; 
 2 Blackstone Com., 18; 3 Kent 
 Com., 439; Gould on Waters, 204. 
 
 ^ In the case of Ingraham vs. 
 Hutchinson, 2 Conn., 584, Chief 
 Justice Swift laid down the law as 
 follows: " By common law every 
 person owning land on the banks 
 of rivers has a right to the use of 
 water in its natural stream without 
 diminution or alteration; that is 
 he has a right that it should flow 
 nbi currere sotebat; and if an}- 
 person on the river above him 
 interrupts or diverts the course of 
 the water to his prejudice, the 
 action will lie. This will give to 
 every one all the advantage he can 
 divert from the water which does 
 not injure the proprietor of lands 
 on the river below him." Arnold 
 vs. Foot, 12 Wend., 330; where a
 
 §59.] 
 
 COMMON LAW THEORIES. 
 
 91 
 
 appurtenance to the land, but as inseparably annexed to 
 the soil itself.^ " The right to the use of water is a right of 
 property depending on the ownership of the land over which 
 water flows, and is very readily deducted from the principle 
 well established in our law that one who owns the soil owns 
 from the centre of the earth to the heavens as expressed in 
 the well-known maxim, " Otjus est solum ejus usque ad 
 caebim, et ad infernos y^ In the case of Lux vs. Haggin,-' 
 the Court explains this principle as follows: "By common 
 law the right of the riparian proprietors to the flow of the 
 stream is inseparably annexed to the soil and passes with 
 it, not as an easement or appurtenance, but as part and parcel 
 of it. Use does not create the right, and disuse cannot destroy 
 or suspend it. The right in each extends to the natural and 
 usual flow of all the water, unless where the quantit}^ has been 
 diminished as a consequence of the reasonable application of 
 it by other riparian owners for purposes hereafter to be 
 mentioned.""* 
 
 ney Mfg. Co. vs. Union Mfg. Co., 
 39 Conu., 582; McCahiiont vs. 
 Whitaker, 3 Rawle, 84; Brown vs. 
 Bush, 45 Penn. St., 61; Beissell vs. 
 Scholl. 4 Dallas, 211. Water power, 
 though an incident to property in 
 the land, is itself the subject of 
 property. 
 
 Tillotson vs. vSniith, 32 N. H., 
 94; Eddy vs. Simpson, 3 Cal., 249; 
 Kidd vs. Laird, 15 Cal., 161; Lux 
 vs. Ilaggin, 69 Cal., 255; 10 Pac. 
 Rep., 753. 
 
 1 Dickinson vs. Grai'.d Junction 
 Canal Co., 7 Kxch., 299; Wright 
 vs. Howard, i Sim. and Stu., 190; 
 Wood & Waud, 3 Exch., 74S; 
 Johnson vs. Jordan, 2 Met., 239; 
 Gardner vs. Newburgh, 2 Johns. 
 Ch., 16; 7 Am. Dec, 526; Evans 
 vs. Merriweather, 3 Scam., 492; 
 Union Mill Co. vs. Ferris, 2 .Saw- 
 yer, 176; vShamleffer vs. Peerless 
 Mill Co., 18 Kan., 24; Hill vs. 
 Newman, 5 Cal., \\^\ Heath vs. 
 
 Williams, 25 Maine, 209; 43 Am. 
 Dec, 269; 2 Black Com., 14. 
 
 2 Note to Gardner vs. Newburgh. 
 7 Am. Dec, 526. 
 
 S 69 Cal., 255; 10 Pac. Rep., 753. 
 
 •1 Angell on water-courses, Sec 
 93; Shury vs. Pigot, Bulst. 339; 
 Countess of Rutland vs. Bowles, 
 Palmer 290; Washb. Easem. 319; 
 Gould on Waters, Sec 204; John- 
 son vs. Jordan, 2 Mete 239; Tyler 
 vs. Wilkinson, 4 Mason, 397; 
 Sampson vs. Hoddinott, i C. B. 
 (U. S.) 590; Hill vs. Newman, 5 
 Cal. 445; Pope vs. Kinman, 54 
 Cal. 3, Creighton vs. Evans, 53 
 Cal. 55: The right of a riparian 
 owner to have the water of a 
 stream run through his land is a 
 vested right, and any interference 
 with it imports at least nominal 
 damages, even if there be no 
 actual damages. I'crrca vs. Knipo 
 28 Cal 340; Hale vs. McLea, 53 
 Cal. 578; Wadsworlh vs.Tillottson, 
 15 Conn. 366.
 
 92 COMMON LAW THEORIES. [§ 60. 
 
 § 60. Riglit of Diversion — Authorities. — In the case of 
 Weiss vs. Oregon Iron Co.^ decided in the arid region, by 
 the Supreme Court of Oregon, upon the subject of diversion, the 
 authorities are collected, and we will quote at length. The Court 
 said: " The owner has no property in the water itself, but a 
 simple usufruct. He may. use it as it passes along, but he must 
 send down to his neighbor below as much as he receives from 
 his neighbor above. (Ang. Water-Courses, § § 90, 94.) 'As 
 a general proposition, every riparian proprietor has a natural 
 and equal right to the use of the water in the stream adjacent 
 to his land, without diminution or alteration.' (Washb. 
 Easem. 319.) ' Riparian proprietors are entitled, in the absence 
 of grant, license or prescription limiting their rights, to have 
 the stream which washes their lands flow as is wont by 
 nature, without material diminution or alteration.' (Gould 
 Waters §204). Chancellor Kent says: 'Though he may use 
 the water while it runs over his lands, he cannot unreasonably 
 detain it, or give it another direction, and he must return it 
 to its ordinar}^ channel when it leaves his estate. Without 
 the consent of the adjoining proprietors he cannot divert or 
 diminish the quantity of water which v>'ould otherwise 
 descend to the proprietors below.' (3 Kent Com. 439.) 'Aqua 
 curitt et debet ciirrere ut currere solebat ' is the language of the 
 ancient common law. The right to a water-course begins ex 
 jure naturae, and having taken a certain course naturally, it 
 cannot be diverted to the deprivation of the rights of the 
 riparian owners below. This is the language of all the 
 common-law text-books, and the decisions. (Ang. Water- 
 courses, § 93.) 'It is an ancient and well established principle ' 
 said Weston, J., 'that water cannot be lawfully diverted, 
 unless it is returned again to its accustomed channel before 
 it passes the land of the proprietor below. Running water 
 is not susceptible of an appropriation which will justify the 
 diversion or unreasonable detention of it.' (Blanchard vs. 
 Baker, 8 Greenl. 266). 'The general rule of law is that 
 every man has the right to have the advantage of a flow of 
 water in his own land, without diminution or alteration.' 
 
 1 13 Oreg. 498, II Pac. Rep. 255.
 
 § 60.] COMMON LAW THEORIES. 93 
 
 (Lord Ellenborough, in Bealy vs. Shaw, 6 East. 2oS, 214.) By 
 settled principles of both the civil and common law the riparian 
 owner has a usufruct in the stream as it passes over his land, 
 of which he cannot be deprived by mere diversion.' (Pope 
 vs. Kinman, 54 Cal. 3.) As a result of the American and 
 English cases, the common law doctrine is thus summed up 
 in the editorial note to Heath vs. Williams, 25 Me. 209; S. C. 
 43 Am. Dec. 275: ' The general principle is, that every 
 owner of land through which a natural stream of water flows 
 has a usufruct in the stream as it passes along, and has an 
 equal right with those above and below him to the natural 
 flow of the water in its accustomed channel, without unrea- 
 sonable detention or substantial diminution in quantity or 
 quality, and none can make any use of it prejudicial to the 
 other owners, unless he has acquired a right to do so by 
 license, grant, or prescription.' 
 
 The defendant as riparian owner, has a right to the use of 
 the stream for its own necessary uses, but this right must be 
 reasonably exercised, and there must be no substantial diminu- 
 tion or w^aste. It is entitled only to so much of the stream as 
 will not materially diminish its quantity, and it may use it for 
 any legal purpose provided it returns the stream to its 
 channel uncorrupted and without any essential diminution. 
 Such uses of a stream by riparian owners is to some extent a 
 question of degree, and in all such cases the size and 
 capacity of the stream is to be considered. Tlie amount 
 taken from a large running stream whicli would cause no 
 sensible or practical diminution of its benefits to a lower 
 proprietor would, if taken from a small stream, materially 
 diminish its quantity and work a manifest injury. What is 
 a reasonable use must necessarily depend upon the facts, 
 considering the size of the stream and amount appropriated. 
 But all the authorities concur that when the amount 
 abstracted perceptibly or materially diminishes the quantity 
 of the stream, such use of it by a riparian owner is 
 unreasonable, and an infringement on the rights of other 
 riparian owners, for which the law furnishes redress. The 
 plaintiff is entitled to the natural flow of the water in its 
 accustomed channel, subject only to the diminution and
 
 94 COMMON LAW THEORIES. [§ 60. 
 
 retardation incident to a reasonable use. Whatever goes 
 beyond this is an infringement of his rights in the stream 
 which may form the basis of a presumption of a grant by 
 lapse of time, and necessarily imports damages, and entitles 
 him to the protection of the law. (Plumleigh vs. Dawson, i 
 Oilman, 544.) And Mr. Angell says : 'That a diversion of a 
 water-course without actual injury to a riparian owner lower 
 down the stream legally imports damages, (because it is an 
 infringement of a right,) is a doctrine powerfully sustained by 
 American authorities.' (Aug., Water-courses, § 135.) 
 
 Now, the counsel for the defendant, while admitting that the 
 rule of the common law as to riparian owners is fatal to the 
 claim of the defendant upon the facts, insists that the rule itself 
 needs to be liberalized, and that the case presented is a for- 
 cible illustration of the hardship and injustice of its operation, 
 and of the duty of the Court to so extend or liberalize it as 
 to protect the defendant from the burdens and unjust exactions 
 which must be the consequences of its strict application. His 
 argument in effect is, that the amount of water abstracted 
 and diverted is necessary to carry on the defendant's business, 
 which is a laudable enterprise that deserves on account of 
 the supposed benefits to accrue from its successful 'establish- 
 ment to be encouraged and protected, and that such use of 
 the water, although it may sensibly diminish the supply of the 
 stream, will leave a suflBcient quantity to flow in its accustomed 
 channel for all present and prospective purposes to which the 
 plaintiff can apply it. But as Black, J., said in Wheatley vs. 
 Chrisman : ' The necessities of one man's business cannot be 
 the standard of another's rights in a thing which belongs to 
 both. The defendant had a right to such use as he could 
 make of the water without materially diminishing it in 
 quantity. * * * If he needed more he was bound to buy 
 it. However laudable his enterprise might be, he cannot 
 carry it on at the expense of his neighbor. One who desires 
 to work a lead mine may require land and money as well as 
 water, but he can not have either unless he first makes it his 
 own.' (24 Pa. St., 302.) And in a late case in the same 
 Court the doctrine of the law as laid down in Wheatley vs. 
 Chrisman, supra, was approved and confirmed, the Court
 
 § 60.] COMMON LAW THEORIES. 95 
 
 saying : ' When the upper riparian owner diverts 6r uses the 
 water, not for ordinary domestic purposes or uses, as are 
 inseparable and necessary to the use of his land, but for 
 manufacturing or other purposes the case is different. ' (Penn, 
 Ry. Co. vs. Miller, 3 Atl. Rep., 780.) In such case, the right 
 to the use of the water must be reasonably exercised, and 
 with proper regard for the equal rights of the other proprietors. 
 (Gould, Waters, §§ 304, 305). Of course, every use of water of 
 a stream involves some diminution, and as Story, J., said: 
 'To hold that there can be no diminution whatever by a 
 riparian proprietor in the use of the water as it flows, would 
 be to deny any valuable use of it. There may be and there 
 must be allowed of that which is common to all a reasonable 
 use by each. (Tj^ler vs. Wilkinson, 4 Mason, 401.) And 
 here, if the appellants, after diverting the quantity for 
 the purpose of propelling the mill, returned the sur- 
 plus not consumed b}- such use to the channel of the 
 stream a different case would be presented. In that 
 event, it might turn out that the amount abstracted did not 
 materially diminish the quantit}' of the stream, and the right 
 to use the water being thus reasonably exercised it could not 
 be said to be wrongful or injurious to the plaintiff or other 
 proprietors. But the diversion of a water-course, or a part of 
 it, by an upper riparian proprietor for manufacturing 
 purposes, without restoring to the channel the excess of water 
 not actually consumed is never allowed. That cannot be 
 considered a reasonable exercise of the right to use the water 
 of a stream which involves its substantial diminution and 
 waste. ' Whether or not a diversion of water is reasonable,' 
 said Harris, J., ' is a question not .so much as mentioned by any 
 writer or judge. The very proposition assumes the right 
 of the proprietor above to use the water for his own 
 purposes, to the exclusion of the proprietors below — a 
 proposition inconsistent witli the doctrine universally admitted, 
 as we have seen that all proprietors have the same rights.' 
 (Van Hoesen vs. Coventry, 10 Barb., 522.) 
 
 We do not think the contention of the counsel for the defen- 
 dant can be maintained upon principle or authority. Nor do we 
 think the objection to the exercise of the jurisdiction well
 
 @6 COMMON LAW THEORIES. [§ 60, 61. 
 
 taken. Mr. High says : ' A riparian proprietor, owning to 
 the center of the stream, is entitled to the aid of equity to pre- 
 vent a diversion of the water from the natural channel. Nor 
 does the neglect of complainants to use or appropriate the water- 
 power, or the fact that they have as yet sustained but small 
 pecuniary damage, or that the defendant would be subjected 
 to heavy expense if compelled to restore the water to its 
 original channel, present such objections as would warrant a 
 Court of equity in refusing relief.' (High, Inj., § 795, and 
 authorities cited.") 
 
 § 61. Riparian Rights — Obstructing Flow — Acceleration 
 of Current. — The rule above stated that the proprietors have 
 the right to have the stream flow as it is wont by nature with- 
 out material diminution, applies to obstructing the flow of 
 the stream even temporarily.^ Or, as Angtll lays down the 
 rule: "An action for the diversion of a water-course is 
 grounded on the deprivation of water, and hence, if the 
 party complaining is deprived of water by any means, the 
 law will interfere. It is as illegal to detain the water unrea- 
 sonably as it is to divert it, for though all persons have an 
 equal right to erect hydraulic works on their own land, yet 
 they must so construct them, and so use the water, that all 
 persons below may participate without interruption in the 
 enjoyment of the same water. "2 In the famous case of 
 Tyler vs. Wilkinson'^ Mr. Justice Story in rendering 
 the opinion said: "I do not mean to be understood as 
 holding the doctrine that there can be no diminution 
 whatever, and no obstruction or impediment whatever, by a 
 
 1 Embrey vs. Owen, 6 Exch. 353; 2 Angell on Water-courses § 115, 
 
 Shears vs. Wood, 7 Moore 534; citing Arnold vs. Foote, 12 Wend. 
 
 Twiss vs. Baldwin, 9 Conn. 291; 330; Howell vs. McCoy, 3 Rawle. 
 
 Sackrider vs. Beers, 10 Johns 241; 256; Hay vs. Sterritt, 2 Watts. 327. 
 
 Hay vs. Sterrett, 2 Watts 327; See also Twiss vs. Baldwin, 9 
 
 Thompson vs. Crocker, 9 Pick. 59; Conn. 291; Sackrider vs. Beers, 10 
 
 Soule vs. Russell, 13 Met. 436; Johns. 241. 
 
 Merritt vs. Brinckerhoff, 7 Johns 3 4 Mason 401. 
 306; Gerrish vs. Newmarket Mfg. 
 Co., 30 N. H. 478.
 
 § 61.] COMMON LAW THEORIES. 97 
 
 riparian proprietor in the use of the water as it flows, for it 
 would be to deny any valuable use of it; there may be, and 
 there must be allowed of that which is common to all, a reason- 
 able use. The true test of the principal and an 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 reference to public convenience and public good, and 
 is not betra3-ed into a narrow strictness, subversive of common 
 use, nor into an extravagant looseness which would destroy 
 private rights. The reasonableness of detention by a riparian 
 proprietor above, causing injury to a riparian proprietor below, 
 depends upon all of the circumstances of each particular case, 
 including the size of the stream, the time the water was 
 detained, and the use that was made of it, by all interested."^ 
 
 The rule also applies to the acceleration of the current of the 
 stream, whereby the lower proprietor is injured. The lower 
 proprietor has the right to insist that the current flow as it is 
 wont by Nature.''^ So an upper mill owner has no right to accu- 
 mulate a large head of water, by shutting down his gates, and 
 then discharge it upon the works and lands of the proprietor 
 below. ^ 
 
 So, also, an upper proprietor has no right to discharge 
 the natural drainage of his land, or the surface water 
 accumulated thereon in ponds, or the water drawn from 
 wells therein, into a natural water-course, if in so doing he 
 thus accelerates the natural flow and increases the volume 
 of the water in the stream to a point whereby the capacity of 
 the stream is exceeded, and the riparian proprietors below are 
 injured in any manner.^ 
 
 1 See Merritt vs. Brinckerhoff, 7 a riparian owner who retains or 
 Johns. 306. stores the waters of a natural 
 
 2 Grant vs. Kuglar, 81 Ga. 637. stream and discharges them in 
 
 3 In the case of Kelly vs. Lett, such quantities as to cause it to 
 13 Ired. 50, where this was done overflow it-s banks and injure the 
 wilfully, and with the intent to lands of a riparian proprietor be- 
 injure the plaintiff, trespass vi et low, is liable for a trespsss, and 
 artnis, was held to be the proper for the damages occasioned there- 
 remedy. See also Haywoocl vs. by, and may also be restrained 
 Edwards, Pliila. Law. 350; McKee therefrom by injunqtion. 
 
 vs. Delaware & H. Canal Co., 125 < Jackman vs. Arlington Mills, 
 N. Y. 353; where it was held that 137 Mass. 277; Wheeler vs. Wor-
 
 98 
 
 COMMON LAW THEORIES. 
 
 [§62. 
 
 § 62. Riparian Rights— Pollution of a Watercourse.— The 
 
 rule above stated also applies to the corruption or pollution of 
 watercourses, and the riparian proprietors have the right to 
 insist that the stream flow as it is wont by Nature, undeterior- 
 ated in quality as well as undiminished in quantity; and any 
 pollution of the stream by one proprietor, to such a degree as 
 to impair its purity and usefulness for any of the purposes to 
 which the lower proprietors have a right to apply the same, 
 is an invasion of the private rights of those proprietors 
 injured thereby, and they are entitled to remedy both at law 
 and equity.^ Neither can a riparian proprietor use the water 
 in such a manner as to corrupt the atmosphere, to the 
 injury of other riparian proprietors or the community at 
 large. ^ 
 
 cester, lo Allen 591; McCormick 
 vs. Horam, 81 N. Y. 86; Williams 
 vs. Gale, 3 H. & John. 231; Miller 
 vs. Lambach, 47 Penn. St. 154; 
 Treat vs. Bates, ' 27 Mich. 390; 
 Noonan vs. Albany, 79 N. Y. 470; 
 Davison vs. Hutchinson, 44 N.J. 
 Eq. 474; Wagner vs. Chaney, 19 
 111. App. 546. 
 
 1 Tenant vs. Goldwin, 2 Ld. Ray- 
 nion, 1089; Holt 500; Mason vs. 
 Hill, 5 B. & A. D. i; Embrey vs. 
 Owen, 6 Exch. 153; Wood vs. 
 Waud, 4 Exch. 748; Bealey vs. 
 Shaw, 6 East 28; Stonehewer vs. 
 Farrar, 6 Q. B, 730; Buccleuch vs. 
 Cowan, 2 App. Cas. 344; Merrifield 
 vs. Lombard, 13 Allen, 16; Wood- 
 ard vs. Worcester, 121 Mass. 245; 
 Richmond Manf. Co. vs. Atlantic 
 DeLaine Co. 10 R. I. 106; Lewis 
 vs. Stein, 16 Ala. 214; Holsman vs. 
 Boilin.s^ Spring Bleaching Co. 14 
 N. J. Eq. 335 As to what sources 
 of pollution have been held to be 
 actionable, see Gould on Waters, 
 Sec. 219, and Angell on Water- 
 
 courses, Sec. 136, and cases cited. 
 Howard vs. McCoy, 3 Rawle, 256; 
 Tyler vs. Wilkinson, 4 Mason, 397. 
 2 In the case of Story vs. Ham- 
 mond, 4 Ohio, 376, the Court held 
 that "Every member of society is 
 bound by the principles of natural 
 justice, so to use his own property 
 as not to injure the ri^jhts of 
 others; and, if an individual erects 
 a mill-dam which creates disease 
 and sickness, he must be responsi- 
 ble for the consequences. The 
 defense set up is entirely without 
 foundation. If a man were to sally 
 forth into the public streets of a 
 town and commit an assault and 
 battery upon every person he met, 
 it would hardly be competent for 
 hi:n, in a suit by an individual for 
 special damages, to set up as a 
 defense that he had not only beat 
 the plaintiff, but had also beat the 
 whole town; or, if a man were to 
 poison a reservoir of water, used 
 for the supply of a city, and 
 thereby create a general sickness
 
 § 63, 64.] COMMON LAW THEORIES. 99 
 
 § 63. Right to Flow of Whole Streiim.— The right of one 
 or more proprietors of several to the flow of a stream cannot 
 be divided if the division is opposed by the others. So, if a 
 water-course divides two estates, the riparian owner of neither 
 can lawfully carry off any part of the water without the 
 consent of the owner opposite ; and not only this, but he must 
 also obtain the consent of all the propf ietors above and below 
 who would be affected, or damaged by the diversion. In 
 other words each proprietor is entitled not to half, or other 
 proportion of the water, but to the whole bulk of the stream 
 undivided and indivisible. The joint proprietors must use it 
 as an entire stream in its natural channel. A severance would 
 destroy the rights of all. 1 It is impossible from the very 
 nature of things, that one proprietor can take water only from 
 his side, as an equal portion from the other side of the stream 
 must have mingled with all that was diverted. ^ All parties 
 are entitled /(?r my et per tout, to their proportion of the whole 
 stream as it naturally flows in its course, and no proprietor 
 can divert any portion of it, although the portion diverted be 
 less than any proprietor be actually entitled to.-^ 
 
 § 64. Right of Access to and from Estate.— The right to 
 enter from one's own estate upon the water-course, and to pass 
 from the water-course to one's own estate bordering upon the 
 
 among the inhabitants, it would tory, 40 N. Y., 191; Parker vs. 
 not be seriously contended that Griswold, 17 Conn., 301; Curtiss 
 the magnitude of the offence was vs. Jackson, 13 Mass., 507; Bear vs. 
 a bar to a private action; or, in Hoffman, 79 Penn. St., 71; Elliott 
 other words, that he might excul- vs. Pitchhurg Ry. Co., 10 Cush., 
 pate himself, by proving that he 191; Plumleigh vs. Daw.son, Gil- 
 had not only poisoned the plain- man, 544; 
 tiff, but had poisoned all the inhab- 2 ibid. 
 
 itants of the city." -^ Angell on W. C, Sec. loi; Webb 
 
 1 Vanderburg vs. Vanderburg, 13 vs. Portland Mfg. Co., 3 Summer, 
 
 Johns, N. Y., 212; Blanchard vs. 189; Gould on Waters, Sec. 207; 
 
 Baker, 8 Greene, Me., 253; Webb Moulton vs. Newburyport Water 
 
 vs. Portland Mfg. Co., 3 Summer, Co., 137 Mass., 163. 
 198; Corning vs. Troy, Iron h'ac-
 
 100 COMMON LAW THEORIES. [§ 64. 
 
 Stream, exists only in the riparian owners of such estate. ^ 
 This right exists by virtue of his riparian ownership, 
 and is entirely different from the public right of pass- 
 ing and repassing along the highway of the river. ^ This 
 right is exclusive in the proprietor, and extends to all portions 
 of his domain fronting upon the water, whether it is ever 
 used b)^ him or not. • And any interruption of it is an 
 encroachment upon a private right, whether caused by a 
 public or a private nuisance, or authorized by legislative 
 enactment, unless proper condemnation proceedings have 
 been had for it, with just compensation.^ This riparian 
 right is property, and is valuable, and the owner can 
 be deprived of it only when it is necessary that it be 
 taken for the public good. In Yates vs. Milwaukee,'* 
 Mr. Justice Miller says: "This riparian right is property, 
 and is valuable, and, though it must be enjoyed in due 
 subjection to the rights of the public, it cannot be arbitrarily 
 or capriciously destroyed or impaired. It is a right of which 
 when once vested the owner can only be deprived in accordance 
 with established law, and if necessary that it be taken for public 
 good upon due compensation."^ The riparian owner is per- 
 mitted to make a landing, wharf, or pier, for his own use or for 
 the use of the public, provided that he does not interfere with 
 the general right of the public to navigation upon the stream.^ 
 
 1 Gould on Waters, Sec. 149, N. S. 525; Yates vs. Milwaukee, 
 151; Yates vs. Milwaukee, 10 Wall. 10 Wall. 497; Button vs. Strong, 
 497; Wilkes vs. Hungerford Mar- i Black 25; Schurmeir vs. Railway 
 ket Co., 2 Bing. N. R. 281; Rex vs. Co., 7 Wall. 272; Atlee vs. Packet 
 Russell, 6 B. & C. 566; Lyon vs. Co., 21 Wall 389; Carli vs. Still- 
 Fishmongers' Co., i App. Cas. 662. water Ry. Co. 28 Minn. 373. 
 
 2 Atty. Gen. vs. Conservators of ■* 10 Wall, 497. 
 
 the Thames, i H. & M. i; Lyon 5 See also Yates vs. Judd, 18 Wis. 
 
 vs. Fishmonger Co., i App. Cas. 118; Webber vs. Harbor Comr's 18 
 
 662; Bell vs. Quebec, 5 App. Cas. Wall. 57; Atlee vs. Packet Co., 21 
 
 84; Brown vs. Gugy, 2 Moo. P. C. Wall. 389; Van Dolson vs. New 
 
 N. S. 341; Benjamin vs. Storr, L. York, 2 Black 454, Meyers vs. St. 
 
 R. 9 C. P. 400; Fitz vs. Hobson, Louis, 8 Mo. App. 255; 82 Mo. 367; 
 
 28 W. R. 459, 722. Morrill vs. St. Anthony Falls Co., 
 
 'i Yarmouth vs. Simmons, 10 Ch. 26 Minn. 222. 
 
 D. 518; Bell vs. Quebec, 5 App. 6 Ibid; Button vs. Strong, i Black 
 Cas. 84; Brown vs. Gugy, 10 Jur.
 
 §64.] 
 
 COMMON LAW THEORIES. 
 
 101 
 
 As to the right of riparian owners to the bed of navigable 
 rivers, between high and low water mark, the decisions are 
 somewhat conflicting, although the preponderance of authority 
 lays down the rule that the riparian owner holds the right of- 
 access to the water, subject to the right of the State to 
 improve navigation.^ That the riparian owner has a cause of 
 action where his access is cut off by a structure erected between 
 high and low water mark by a corporation acting under a 
 charter is held to be the rule in England. ^ Also this is the rule 
 in a great many of the States, and the Supreme Court of the 
 United States has affirmed these decisions.^ But in the case 
 in New York of Gould vs. Hudson Ry. Co.,^ decided before that 
 of Yates vs. Milwaukee, the Court holding a contrary opinion 
 to the above principle, says: "Whatever rights the owner 
 of the land has in the river, or in its shore, below high water 
 mark, are public rights, which are under the control of 
 Legislative power, and any loss sustained through the act of 
 the Legislature affecting them is daninutn absque injuria.'''' 
 This doctrine has also been followed in lowa^ and New 
 Jersey.^' But the great weight of authority follows the case 
 
 23; Schurmeir, vs. Railway Co., 
 7 Wall. 272. 
 
 1 Philadelphia vs. Scott, 81 Penn. 
 80. 
 
 2 Buccleuch vs. National Board 
 of Public Works, L. R. 5 H. L. 
 418; Beckett vs. Midland Ry. Co., 
 L. R. 3C. P. 82; Moore vs. Great 
 Southern Ry. Co., 10 Ir. R. C. 46; 
 Regina vs. Rynd, 16 Ir. R. C. L. 
 29. 
 
 3 Yates vs. Milwaukee, 10 Wall. 
 497; Delaplaine vs. Chicago & N. 
 W. Ry. Co., 42 Wis. 214; 24 Am. 
 Rep. 394; Chapman vs. Oshkosh 
 & Miss. Ry. Co., 33 Wis. 629; 
 Diedrich vs. N. W. Ry. Co. 42 
 Wis. 248, 264; Holton vs. Milwau- 
 kee, 31 Wis. 38; Providence Steam 
 Eng. Co. vs. Prov. Steam Ship Co., 
 12 R. I. 34S; Clark vs. I'eckham, lu 
 
 R. I. 35; Cleveland Ry. Co, vs. Ball, 
 5 Ohio St. 568; Rice vs. Ruddiman, 
 ID Mich. 125; Lorman vs. Benson, 
 8 Mich, 18; In re Phil. Ry. Co., 6 
 Whart. 25, 46; Pittsburg vs. Scott, 
 I Penn. St. 309, 317; Ashby vs. 
 Eastern Ry. Co., 5 Met. 368; Dodge 
 vs. County Com. 3 Met. 380; 
 Chicago Ry. Co. vs. Stein, 75, 111. 
 41. 
 
 4 6. N. Y. 535; 12 Barb. 616. 
 
 5 McManus vs. Carmichacl, 3 
 Iowa i; In Ingraham vs. Chicago 
 Ry. Co. 34 Id. 249, 252; Cooke vs. 
 Burlington, 36 Id. 367, 365; Musser 
 vs. Ilershley, 42 Id. 356, 361; 
 Kucheman vs, C. C. & D. Ry. Co., 
 46 Iowa, 336, 378. 
 
 (> Stevens vs. Peterson Ry. Co., 
 34 N. J. L. 532; 2 N. J. Kq. 126;
 
 102 COMMON LAW THEORIES. [§ 64, 65. 
 
 of Yates vs. Milwaukee, supra, holding that this riparian 
 right of access to and from one's own estate is property of the 
 riparian owner, and as such no person or the public have 
 • the right to take it from the owner without legal process 
 and just compensation.^ 
 
 § 65. Eight of Riparian Owner to the Use of Water. — 
 In CieneraL — As has been seen in a previous section, ^ a 
 riparian proprietor has no ownership in the water itself, 
 running in a natural stream, except as to his usufructuary- 
 property thereto. The right of a riparian owner to use the 
 water of a water-course flowing by his land, may be divided 
 into two classes. First, the ordinary use of the water ; and 
 second, the extraordinary use. These uses are based upon 
 what is called the natural and artificial wants of man. Water 
 used to supply man's natural wants is an " ordinary use," 
 and to supply man's artificial wants is an "extraordinary 
 use." The real difference pointed out by the authorities, 
 between these two classes of uses, is that w^ater may be used 
 for ordinary purposes without regard to the effects of such 
 use in case of a deficiency to those below on the stream, 
 while in reference to the extraordinary uses, the effect upon 
 those below must always be considered in determining its 
 reasonableness. In the English case of Miner vs. Gilmour,^ 
 Lord Kingsdown said: "By the general law, applicable to 
 riparian proprietors, each has a right to what may be called the 
 ordinary right of a use of water flowing past his land — for in- 
 stance, to the reasonable use of the water for domestic purposes, 
 and for his cattle, and this without regard to the effect that 
 such use may have in case of deficiency upon the proprietors 
 lower down the stream. But further, he may have use of it 
 for any purpose or what may be deemed the extraordinary 
 
 Stockham vs. Browning, i8 N. J. How. 426; Clark vs. Peckham. 10 
 
 Eq. 390; Tinsman vs. Belvidere R. I. 35; 9 Id. 455; also cases cited 
 
 Del. Ry. Co., 26 N. J. L. 148; 25 above. 
 
 Id. 255. 2 Ante sections 52-56. 
 
 1 Boston vs. Richardson, 19 How, '^ 12 Moo. P. C, 156. 
 263, 270; Boston vs. Lecraw, 17
 
 § 65, 66.] COMMON LAW THEORIES. 103 
 
 use of it, provided he does not thereby interfere with the lawful 
 use of it by other proprietors, eitlier above or below him." 
 Subject to this condition a riparian proprietor may dam up 
 a stream for the purpose of a mill, or divert the water for the 
 purpose of irrigation. But he has no right to interrupt the 
 regular flow of the stream, if he thereby interferes with the 
 lawful use of the water by other proprietors, and inflicts on 
 them a sensible injury.^ 
 
 § OB. Siiiiie. — Ordinary Use of Water. — The common law 
 holds, in treating of the uses of the first class, that for the 
 purpose of supplying his natural wants each riparian proprie- 
 tor has a right to the ordinary use of the water of the stream 
 flowing past his land, even if in supplying these wants all the 
 water of the stream is consumed. ^ These natural wants are 
 for "domestic purposes," which include culinary and house- 
 hold purposes, cleansing and washing and supplying the 
 wants of the ordinary quantity of horses and stock. ^ And 
 according to the great weight of common law authorities, 
 where the supply of water is very small for these natural uses, 
 the upper riparian proprietor may, if necessary, consume all 
 of the water of the stream to supply his natural wants but not 
 for any other purpose.^ But according to some authorities the 
 
 1 See also Gould on Waters, Sees. 366; Arnold vs. Foot, 12 Wend., 
 
 205 to 210; and cases cited. Lux 330; Gould on Water, section 205, 
 
 vs. Haggin, 69 Cal., 255, 406; and cases cited. 
 
 Evans vs. Merriweather, 3 Scam., 3 ibitL Attorney Gen. vs. Great 
 
 492, 495. Eastern Ry. Co., 23 L. T. N. S. 
 
 2 Miner vs. Gilniour, 12 Mo. P. 349; Lowe vs. Lambeth Water 
 
 C, 131, 156; Marbury vs. Kitchin, Works Co., 52 L. T. N. S., 661; 
 
 3 F. & F., 392; Wood vs. VVaud, 3 Union Mill Co. vs. I'erris, 2 Saw, 
 
 Exch., 748; Swinton Water Co. vs. 176; 
 
 Wills Canal Co. L. R. 7 H. L., 4 ibid. Roberts vs. Richards, 5 
 
 697; Union Mill Co. vs. I-"erris, 2 L.J. Ch., 297; 51 Id., 944; 44L.T., 
 
 Sawyr., 176; Union Mill Co. vs. 291; Evans vs. Merriweather, 3 
 
 Dangljerg, 2 Sawr., 450; lUack Scam., 492, 495; Gould on Waters, 
 
 vs. Marsh, 23 Pitts L.J. ,29; Spring- section 205; Sanford vs. Felt, 7; 
 
 field vs. Harris, 4 Allen, 494; Cal., 249; Ponieroy Rii)arinn 
 
 Anthony vs. Lapham, 5 Pick, 175; Rights, Sec. 125. 
 Wadsworth vs. Tillotson, 15 Conn.,
 
 104 COMMON LAW THEORIES. [§ 66, 67. 
 
 use of water for culinary purposes and for cattle must 
 not deprive the other proprietors of an equal enjoyment of 
 the same right. ^ But in some cases the rule is laid down upon 
 this subject that the reasonable usefulness of a quantity of 
 water, for any purpose whatsoever, is always relative. It 
 does not depend upon the convenience of or the profitable 
 results to any particular proprietor, but upon the reasonable 
 use, reference being had to the needs of all the other proprie- 
 tors upon the stream. It depends entirely, in other words, 
 upon all the circumstances of each individual case.^ 
 
 § 67. Same. — Extraordinary Use of Water. — The right of 
 riparian proprietors to use the water of a stream, to supply 
 their artificial wants, is common to them all. And where the 
 water supply is sufl&cient, any proprietor can use the water of 
 a stream for any purpose whatsoever, provided that none of 
 the other proprietors or the public are injured, or have any 
 rights infringed upon by his so using it.^ But it must be 
 borne in mind that the rights of all the proprietors upon the 
 stream are equal, in respect to all extraordinary uses 
 of the water thereof.^ In the early case of Beissell vs. 
 
 1 Chatfield vs. Wilson, 31 Vt., R. 9 Ch., 457; Coulson & Forbes 
 358; 28 Vt.,49; Hlanchardvs.Baker on Waters 116. 
 
 8 Maine, 253, 266; McElry vs. 3 E;iiiott vs.FitcliburgRy.ioCush 
 
 Gable, 6 Ohio St., 187; Adams vs. 191, 196; Merrifield vs. Lombard, 
 
 Barney, 25 Vt., 225; Pomeroy Ri- 13 Allen, 16; Middleton vs. Flat 
 
 parian Rights, section 7; Town- River Booming Co., 27 Mich. 533; 
 
 send vs. McDonald, 12 N. Y., 381; Miner vs. Gilmore, 12 Moo. P. C. 
 
 Pillsbury vs. Moore, 44 Maine, 154; 131; Chasemore vs. Richards, 7 H. 
 
 Wadsworth vs. Tillotson, 15 Conn., L. Cas, 349; 5 H. & N. 982; Embrey 
 
 366; 39 Am. Dec, 391; Bliss vs. vs. Owen, 6 Exch. 353; Tyler vs. 
 
 Kennedy, 43 111., 67; Heath vs. Wilkinson, 4 Mason, 400. 
 
 Williams, 25 Maine, 209; 43 Am. 4 Gould vs. Boston Duck Co., 13 
 
 Dec, 274, note and cases cited; Gray,442,45o; Haskins vs. Haskins 
 
 Stein vs. Burden, 29 Ala., 127; 9 Gray, 390; Merryfield vs. Wor- 
 
 Slack vs. Marsh, 11 Phila., 543. cester, no Mass. 219; Moulton vs. 
 
 2 Elliot vs. Fitchburg Ry. Co., Newburyport Water Co., 137 Mass. 
 10 Cush., 193; 57 Am. Dec, 85. 163; Prentice vs. Geiger, 74 N. Y., 
 It has been held in England that 341; 9 Hun. 350; Penn. Ry. Co., vs. 
 the use of water for brewing pur- Miller, 112 Penn. St. 34; Union 
 poses was an ordinary use, Wilts Mill Co. vs. Danberg, 2 Saw. 450; 
 Canal vs. Swindon Water Co., L. Duniont vs. Kellogg, 29 Mich. 420;
 
 § 67.] COMMON LAW THEORIES. 106 
 
 Scholl,^ an action for diverting a watercourse, decided by the 
 Supreme Court of the United States, it was held that every man 
 in this country has the unquestionable right to erect a mill 
 upon his own land; and to use the water passing through his 
 land as he pleases, subject only to this limitation, that his 
 mill must not be so constructed and emplo3'ed as to injure 
 his neighbor's mill, and that after using the water he returns 
 the stream to its ancient channel. 
 
 In a more recent Michigan case, Mr. Justice Cooley thus 
 states the rule: "As between different proprietors, on the same 
 stream, the right of each qualifies that of the other, and the 
 question always is, not merely whether the lower proprietor 
 suffers damage by the use of the water above him, nor whether 
 the quantity flowing on is diminished by the use, but whether 
 under all the circumstances of the case the use of the water 
 by one is reasonable and consistent with a correspondent 
 enjoyment of the right by the other. "^ 
 
 According to all of the common law authorities, the only 
 right of property in the water, flowing in its natural channel, 
 is usufructuary;'^ and that, after so using it, if the water has 
 been diverted from its natural channel he must return it to the 
 stream without material diminution of quantity or alteration 
 of quality, for it is an ancient and well established principle 
 of the common law that the water of a stream cannot lawfully 
 be diverted unless it is returned again to its accustomed chan- 
 nel before it passes to the land of the proprietor below.* But, 
 under the comnfon law, this right to the extraordinary use of 
 water is inferior and subordinate to the right of its ordinary 
 
 Patten vs. Harden, 14 Wis. 473; ^ Ante Section 56 and cases cited; 
 
 Rudd vs. Williams, 43 111. 385; Angell on Waterconrses, Section 
 
 Rhodes vs. Whitehead, 27 Texas, 94 and cases cited. 
 
 304; liatavia Manf. Co. vs. Newton 4 ibid. Blanchard vs. Kaker, 8 
 
 Wagon Co., 91 111. 230, 245; Pinney Maine, 253, 266; Colburn vs. Rich- 
 
 vs. Luce,44:\Iinn.363; Ulbricht vs. ards, 13 Mass. 420; Cook vs. Hull, 
 
 Hufaulia Water Co., 86 Ala. 587. 3 Pick. 269; Aiithony vs. Laphaiii, 
 
 1 4 Dallas, 211. 5 Pick. 175. 
 
 2 Dutnont vs. Kellogg, 29 Mich. 
 423; see also Carey vs. Daniels, 8 
 Met. 477.
 
 106 COMMON LAW THEORIES. [§ 67, 68. 
 
 use; for if the water of a stream is barely sufficient to supply 
 the natural wants of the different proprietors none of them 
 can use the water for such extra ordinary purposes as irrigation 
 or manufactures, or for any other purpose, except to supply 
 himself and family with a sufficient quantity for domestic 
 purposes, if in so using it he infringes upon the rights of any 
 of the other riparian proprietors. ^ One of the most important 
 uses of water in this class, especially in the eastern portion of 
 the United States, is its application for the working of mills 
 and machinery. But in this, as well as other uses, the pro- 
 prietor has no right to use the water to the injury or prej- 
 udice of the rights of any of the other proprietors. ^ 
 
 §68. Same.— Use of Water for Irrigation.— Also, accord- 
 ing to the great weight of authority the right, under the com- 
 mon law, of a riparian proprietor to irrigate his land comes 
 under this class of extraordinary uses; it being a use to supply 
 his artificial wants, and for which he is only entitled to a reason- 
 able use, in common with all other proprietors.^ According 
 to a few of the earlier common law authorities of the United 
 States the practice of irrigation seems to have been per- 
 mitted under great latitude.^ In Blanchard vs. Baker, supra, 
 Mr. Justice Weston said : ' ' The right to the use of a stream 
 of water is incident or appurtenant to the land through which 
 it passes. It is an ancient and well established principle that 
 it cannot lawfully be diverted unless it is returned again to 
 its accustomed chatmel before it passes the land of the 
 
 1 Ante Section 6o and cases cited; 492; Stein vs. Burden, 29 Ala. 127; 
 Union Mill Co., 2 Sawyer, 176; Slack vs. Marsh, 11 Phil. 543; 
 Crandall vs. Woods, 8 Cal. 13&; Baker vs. Brown, 55 Texas, 377; 
 Ellis vs. Tone, 58 Cal. 289. Rhodes vs. Whitehead, 27 Texas 
 
 2 Tyler vs. Wilkinson, 4 Mason, 314; Flemniing vs. Davis, 37 Texas 
 400; Webb vs. Portland Mfg. Co., 173. 
 
 3 Sumn. (Cir. Ct.) 189; Boman's •* Gould on Waters, Sec. 205; 
 
 Devisees vs. Latham, 2 McLain, Weston vs. Alden, 8 Mass. 136; 
 
 376; Beissell vs. Scholl, 4 Dallas, Perkins vs. Dow, i Root (Conn.) 
 
 211. 535; Hay ward vs. Mason, i Root 
 
 3Pom. Rip. Rights, vSec. 125; (Conn.) 537; but see Blanchard vs. 
 
 Evans vs. Merriweather, 3 Scam. Baker, 8 Maine 253.
 
 § 68, 69.] COMMON LAW THEORIES. 107 
 
 proprietor below. Running water is not susceptible of an 
 appropriation which will justify the diversion or unreasonable 
 detention of it. The proprietor of a water-course has a right 
 to avail himself of its momentum as a power which may be 
 turned to beneficial purposes; and he may make a reasonable 
 use of it for his cattle, or even for irrigation, providing it is 
 not unreasonably detained or essentially diminished. For, 
 although by the case of Westen vs. Alden, (7 Mass. 136) the 
 right of irrigation might seem to be general and unlimited, 5^et 
 subsequent cases have restrained it consistently with the enjo}"- 
 ment of the common bounty of nature, by other proprietors 
 through whose lan.d a stream has been accustomed to flow."^ 
 In general we will say, that under the common law, as inter- 
 preted by the courts of England, and those of the United 
 States, in no case is one riparian proprietor permitted to so 
 use the waters of a natural stream as to destroy or render 
 useless or materially affect the application of the same water 
 of the stream bj^ the other riparian proprietors upon the same.''^ 
 
 § 6y. Same, — Same. — As we have seen, water for irrigation 
 is held by the common law authorities not to be a natural 
 want in the same sense that water for " domestic purposes " 
 is, as described above, which a riparian proprietor may satisfy 
 without regard to the rights and needs of proprietors below. 
 In the opinion of the Supreme Court of Illinois, in the case of 
 Evans vs. Merriweather,^ this subject was discussed at great 
 length as to whether water for the purpose of irrigation 
 is a natural or an artificial want, and it was there held 
 to be dependent upon the circumstances, locality, etc.; and it 
 was also held that, in reference to the State of Illinois, because 
 that State was within the rain belt, it was an artificial want; for 
 it was a want that had for its object simply the comfort, conven - 
 ience or prosperity of the riparian proprietor. But, upon the 
 
 I Colborn vs. Richards, 13 Mass. ~ I1)i<l; Union Mill Co. vs. I'crris, 
 420; Cook vs. Hull, 3 Pick, 269; 2 Saw. 176. 
 
 Anthony vs. Lapliani, ,5 Pick. 175; :i Scrim. .496. Sec also (juotation 
 
 from o|)inion .ante section 9.
 
 108 COMMON LAW THEORIES. [§ 69. 
 
 other hand, the Court held that in a country differently situated 
 from that State, with a hot arid climate, water for irrigation 
 would be a natural want, from the fact that its application was 
 absolutely indispensable to the cultivation of the soil. But 
 the Supreme Court of California holds for that State, which is 
 within the arid region, in the case of lyearned vs. Tange" 
 man,^ that the use of water for the purpose of irrigation, as 
 between riparian owners upon the same stream, is not identi- 
 cal or co-extensive with the right to use it for watering cattle 
 and other like domestic purposes, and hence it was an extra- 
 ordinary use. That action was brought by one riparian pro- 
 prietor against another whose lands were situated upon the 
 banks of the same stream, higher up than the lands of the 
 plaintiff. The defendant had diverted the waters of the 
 stream for the purpose of irrigating his own lands, and had 
 thereby deprived the plaintiff of a portion of the water to 
 which he was entitled, and of which the plaintiff complained. 
 At the trial of the case below, the judge instructed the jury, 
 among other charges, that; "If they believed from the evi- 
 dence that the defendant was a riparian proprietor and used 
 the water of the stream for the purpose of irrigating his lands 
 and used no more than was necessary for that purpose, and 
 returned the surplus water after such use into the channel, 
 then they should return a verdict tor the defendant." This 
 instruction was given upon the assumption that the right of a 
 riparian proprietor to use the water of a stream for the irri- 
 gation of his lands is identical with the natural right of a 
 riparian proprietor to use the water for his cattle and for other 
 strictly domestic purposes, and that the defendant was entitled 
 to divert and consume all the water which was necessary for 
 his purpose, even though it took all of the water of the stream. 
 But the Supreme Court of that State in reversing the judg- 
 ment, and ordering a new trial, referring to the above quoted 
 instruction said: " This was error, for by it the jury were in 
 effect told that the defendant was entitled to divert and use all 
 of the water of the stream, if necessary for the irrigation of his 
 
 1 65 Cal., 334; 4 Pac. Rep., 191.
 
 ^ 69, 70.] COMMON LAW THEORIES. 109 
 
 land, without regard to the wants or necessities of the other 
 riparian proprietors." 
 
 It may be easily perceived that a great majority of the 
 early judicial tribunals in this country, in a large number of 
 cases, in expounding the rights of riparian proprietors to 
 use the water of natural streams, have made this dis- 
 tinction between one kind of use of water and another, 
 and have placed this use for irrigating land as one to satisfy 
 artificial wants, although the terms natural and artificial 
 wants do not seem to have been employed in this country until 
 used by the Court in the case of Evans vs. Merriweather, 
 cited above. ^ 
 
 § 70. Same.— English Doctrine. — So also in all the 
 decisions of England, although the term, "natural and 
 artificial wants" does not seem to be used, the Courts hold 
 that the use of water for the purpose of irrigation, if permitted 
 to be exercised at all, can only be exercised by one riparian 
 proprietor so that the rights of any of the other proprietors 
 will not be prejudiced or infringed upon.^ However, the use 
 of water for the purpose of irrigation is practically unknown 
 in England, as compared with its use for that purpose in the 
 arid regions of the United States, or even in some of the 
 English possessions — India and Australia, That country 
 having small rivers, and a damp humid climate with plenty 
 of rainfall, has never found it necessary to use the water 
 in her natural streams for the purposes of irrigation as 
 have certain portions of the United States. But, as England 
 
 1 Meyer, etc., vs. Coinin. vSpring Biiig., 379; Strutt vs. Boviiigtoii, 5 
 Garden., 7 Barr., (Penn.)328; Pugh Esp., 56; Hall vs. Swift, 6 Scott, 
 vs. Wheeler, 2 Dev. and Bat. N. C. 167; Chasemore vs. Richards, 7 H. 
 50; Evans vs. Merriweather, 3 L. Cases, 349; Embrey vs. Owen, 6 
 Scam., 496; Colburn vs. Richards, Exch., 352; Sampson vs. Iloddi- 
 13 Mass., 420; Anthony vs. Lap- not, i Com. B. N. S., 590; Wood 
 ham, 5 Pick., 175; Blaiichard vs. vs. Waud, 3 Exch., 748; Gale and 
 Baker, 8 Green, 253; Arnold vs. Wliat on Easements, 284; Domat 
 Foot, 12 Wend., 330. Pub. Law, i, 2, 8, 11. 
 
 2 Green Slade vs. Holiday, 6
 
 110 COMMON LAW THEORIES. [§ 70. 
 
 is the source from which we obtain the principles of law 
 known in the history of jurisprudence as the common law, we 
 naturally turn to that country to learn what were her ideas 
 upon the subject of irrigation and her rules governing the 
 same. Owing to the comparatively unknown practice of irri- 
 gation in England, we find that the cases decided in that country 
 are few as compared with the number of decisions in this 
 country, in which the controversy has been in respect to 
 the diversion of water from a water-course for the purpose of 
 irrigating the land, and also that the English law upon this 
 subject is to-day unsettled. Nevertheless, the authorities seem 
 to agree upon two propositions, and these are, that the water 
 of a natural stream cannot be so diverted to the material 
 diminution of the quantity of water which naturally flows in 
 the water-course by one riparian proprietor to the prejudice 
 and injury of the rights of any of the others; and, that the 
 water must not be diverted at all, unless it be again returned 
 into the water-course with no other diminution than that 
 caused by absorption and evaporation.^ In a case cited by 
 Mr. Angell in his work on water-courses, ^ an action was 
 brought for the disturbance of a water-course and the plain- 
 tiff was non-suited, on the ground that the water after 
 being used for irrigation was returned to the channel. But 
 afterwards the Court of King's Bench set aside the non-suit, 
 because it was shown that a portion of the water was lost by 
 the process of evaporation and absorption. This case would 
 seem to hold that the common law did not recognize at all 
 the right to use the water of natural streams for the purpose 
 of irrigation, for without the loss of some portion of the water 
 by absorption and evaporation its use for that purpose would 
 be a physical impossibility.^ 
 
 1 Green Slade vs. Halliday, 6 7 H. L. 349; Enibrey vs. Owen, 6 
 Bincr., 379; 19 Eng. Com. Law, 106; Exch.,352; Sampson vs.Hoddinot, 
 Strutt vs. Bovington, 5 Esp., 5; i Com. B. N. S.. 590; Mason vs. 
 Hall vs. Swift, 6 Scott, 167. Hill, 3 B. & Ad., 304; 5 B. & Ad., 
 
 2 Section 120. i; Wood vs. Waud, 3 Exch., 748. 
 
 3 See also Chasemore vs. Richards
 
 § 71. J COMMON LAW THEORIES. Ill 
 
 § 71. Same. — Coiltiuueil. — The present English law upon 
 the subject seems to be summed up in the case of Chasemore 
 vs. Richards,^ in which Park, B., after discussing the case of 
 Wood vs. Waud, in which it was held that a very liberal use 
 of the stream for the purposes of irrigation is permitted in 
 America, says: "It is not clear that a user, to that extent, 
 would be permitted; nor do we mean to lay down that it would 
 in every case be deemed a lawful enjoyment of the water if 
 it was again returned into the river with no other diminution 
 than that which was caused by absorption and evaporation 
 attendant on the irrigation of the lands of the adjoining pro- 
 prietor. 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 thousands of acres of porous soil, 
 abutting on one part of the stream, could be permitted to irri- 
 gate them continually by canals and drains, and so cause a 
 serious diminution of the quantity of the 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 of it. 
 It is entirely a question of degree, and it is very difficult, 
 indeed impossible, to define precisely the limits which sepa- 
 rate the reasonable and permitted use of the stream from its 
 wrongful application; but there is often no difficulty in 
 deciding whether a particular case falls within the permitted 
 limits or not." And further on, he says: "The right to have 
 the stream to flow in its natural state, without diminution or 
 alteration, is an incident to the property in the land through 
 which it passes; but flowing water is j2!>?^/5//V/7>/r/.y, not in the 
 sense that it is botiuni 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 
 right of access to it; that none can have any property in the 
 
 1 7 II. L. Cas. 349.
 
 112 COMMON LAW THEORIES. [§ 71, 72. 
 
 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. But each 
 proprietor of the adjacent land has the right to the usufruct of 
 the stream which flows through it. 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 obstruction of it would give a cause of action would 
 be irrefragible; but it is a right only to the flow of the water, 
 and the enjoyment of it, subject to the similar rights of all 
 the proprietors of the bank on each side to the reasonable 
 enjoyment of the same gift of Providence. It is only, there- 
 fore, for an unreasonable and unauthorized use of this common 
 benefit that an action will lie; for such a use it will." 
 
 § 72. Siime. — Early American Doctrine. — During the early 
 history of this country when the population was comparatively 
 sparse, even in the Eastern States, the right to use the water 
 for the purposes of irrigation was recognized there to a very 
 wide latitude.^ One of the earliest cases in this country 
 upon this subject is that of Perkins vs. Dow,^ and in that action 
 it was decided by the Supreme Court of Connecticut that a 
 riparian proprietor may take the water from a stream running 
 through his land to fertilize his meadows; provided that he 
 does not deprive the adjoining proprietors below of a sufficiency 
 of water for kitchen purposes, or foi watering their cattle; and 
 pirovided the water which is diverted for irrigation shall 
 (unless absorbed on the land^ be returned to its natural channel 
 before the stream leaves his land. And if a person by 
 absorption on his own land can dispose of the whole of the 
 water, excepting only a bare sufficiency for the purposes 
 before mentioned, he has the prior right because he is first on 
 the stream and has the first opportunity. Also in the case of 
 
 1 Gould on Waters, section 205, Root, (Conn.) 535; Howard vs. 
 
 206; II Am. and Eng. Enc. of Mason, i Root, (Conn.) 537; 
 
 Law, 846; Weston vs. Alden, 8 Blanchard vs. Baker, 8 Maine, 266. 
 
 Mass., 136; Perkins vs. Dow, i 2 i Root, (Conn.) 535.
 
 ,:j 72, 73.] COMMON LAW THEORIES. 113 
 
 Weston vs. Alden,^ the Supreme Court of Massachusetts held 
 that, "A man owning a close on an ancient brook may law- 
 fully use the water thereof for the purposes of husbandrj', as 
 watering his cattle or irrigating his close; and he may do 
 this either by dipping water from the bank and pouring it 
 upon the land or by making small sluices for the same pur- 
 pose; and if the owner of a close below is damaged thereby it 
 is damnum absque injuria^ This case essentially holds, that 
 the upper riparian proprietor on a stream has a right to use 
 all the water of a stream without any regard to the wants of 
 those below, and not even leaving enough in the stream for 
 their " domestic purposes." That such was not the English 
 rule has been shown above, and that such was ,not the later 
 rule of the Eastern States which have adopted the common 
 law upon this subject will be seen in the following section. 
 
 §73. Siimo. — Latin Americjiii Doctrine. — Anthorities 
 
 Disciissert. — As the Eastern States became more thickly set- 
 tled and the demand for water became greater, the same States 
 which had formerly allowed a very liberal use of water for the 
 purpose of irrigation graduall}^ restricted that use, until they 
 had practically adopted all the common law rules upon the 
 subject.^ And, according to the later decisions of the 
 common law authorities of this countr}^ this use of the water 
 comes properly under the head of extraordinary uses, to 
 r^upply an artificial want; and the use of the stream for this 
 purpose b}' one riparian proprietor upon the same must be 
 reasonable and must not materially injure or effect the rights 
 
 1 7 Mass., 136. purposes of irrigation, when its 
 
 2 II Am. & P^ng. Enc. of Law use is not indispensable, but is 
 
 848; Colburn vs. Richards, 13 resorted to for the purpose of 
 
 Mass., 420; Cook vs. Hull, 3 Pick., increasing the products of the 
 
 269; .\nthony vs. Laphani, 5 Pick., soil, must be subordinate to the 
 
 175; Hlanchard vs. Baker, 8 Me., rights of a co-proprietor to supply 
 
 253. his natural wants, and those of his 
 
 In Baker vs. Brown, 55 Tex., famil)', tenants and stock by 
 
 377, the Court held: " That the using the water for necessary 
 
 right to use the water for the domestic purposes.
 
 114 
 
 COMMON LAW THEORIES. 
 
 [§V3. 
 
 of any of the other riparian proprietors upon the same 
 stream. 1 
 
 In regard to the early Connecticut decisions quoted above, ^ 
 in the opinion of Mr. Chief Justice Swift, in Ingraham vs. 
 Hutchinson,-^ they reverse the common law, and are repugnant 
 to a statute of that State in affirmance of that law. The 
 Judge, in giving the opinion of the Court, and referring 
 directly to the cases cited above, says: "It was decided, that 
 a man may divert a stream of water to manure and enrich his 
 meadows, to the prejudice of a mill that had been erected on 
 the stream below m^re than twenty years. This is reversing 
 the common law; and not only gives to the upper proprietors 
 on rivers the advantages to which the lower are entitled, but 
 denies that even seventy years exclusive enjoyment of water, 
 in a particular manner, will confer an absolute right." 
 
 This rule, restricting the use of water for irrigation, is 
 especially true when the rights of other riparian proprietors 
 for the purpose of supplying their natural wants and domestic 
 
 1 Blanchard vs. Baker, 8 Maine, 
 253, 266; Davis vs. Getchell, 50 Id. 
 604; where it was held that a 
 diversion of a large portion of the 
 waters of a stream, by a proprie- 
 tor of land through which the 
 water-course ran, rendered him 
 liable to an action on the case, by 
 a proprietor of land below, from 
 whom the water is thus diverted; 
 although the latter thereby sus- 
 tains no present actual damage. 
 Newhall vs. Ireson, 8 Cush., 595; 
 Elliott vs. Fitchburg Ry. Co., 10 
 Cush., 194; Anthony vs. Lapham, 
 5 Pick. ,175; Cook vs. Hull, 3 Pick., 
 269; Paine vs. Woods, 108 Mass., 
 160; Garwood vs. N. Y. Cent. Ry. 
 Co., 83 N. Y., 400, 405; Farrell vs. 
 Richards, 30 N. J. Eq., 511; Union 
 Mill Co. vs. Ferris, 2 Saw., 176; 
 Ingraham vs. Hutchinson, 2 Conn., 
 584; Wadsworth vs. Tillotson, 15 
 
 Conn., 366; Gillett vs. Johnson, 30 
 Conn. 180; Randall vs.Silverthorn, 
 4 Penn., St., 173; Miller vs. Miller, 
 9 Penn. St., 74; Tolle vs. Correth, 
 31 Texas, 362; 98 Am. Dec, 540, 
 note and cases cited; Fleming vs. 
 Davis, 37 Texas, 173; Mud Creek 
 Irr. Co., vs. Vivian, 74 Texas, 170; 
 Stein vs. Burden, 29 Ala., 127; 24 
 Ala., 130; Blessing vs. Blair, 45 
 Ind., 546; Lux vs. Haggin, 69Cal., 
 255; Larned vs.Tangeman, 65 Cal., 
 334; Ferrea vs. Knipe, 28 Cal., 343; 
 Perigay vs. Sellick, 79 Cal., 568; 
 Sharp vs. Hoffman, 79 Cal., 404; 
 Heath vs. Williams, 25 Maine, 209; 
 43 .-\m. Dec, 269, note and cases 
 cited; Gould on Waters, Sec. 217. 
 
 2 Perkins vs. Dow, i Root, 535 
 and Howard vs. Mason, i Root, 
 537, 2 Swift's Dig. 87. 
 
 3 2 Com. 584.
 
 § 73, 74.] COMMON LAW THEORIES. 115 
 
 necessities, or their right to irrigate their own lands, are 
 invaded, unless the first irrigator has gained the right in some 
 mode known to law, as by grant or prescription. In other 
 words, at common law the right to use water for irrigation is 
 subordinate to the natural wants and equal with all other 
 artificial wants, and is so restricted and hemmed in by the 
 rules of that law that its practice, as the same is known in 
 the arid regions of the United States, is rendered almost an 
 impossibility.^ 
 
 In Gillett vs. Johnson the Court thus speaks of the right 
 of the defendant to use tke water of a stream to irrigate lands, 
 as limited and restricted: "She was bound to apply the water 
 in such a reasonable manner and quantity as not to deprive 
 the plaintifi" of a sufficient supply for his cattle. The claim 
 of the defendant was, that she had a right to divert the whole 
 for the purpose of irrigation, regardless of the rights of 
 plaintiff. Such diversion was unreasonable, and therefore 
 illegal." 
 
 Also in another case, decided by the Supreme Court of New 
 York, the parties in which were owners of adjoining farms. 
 On the farm of the defendant, within five or six rods of the 
 land of the plaintiff, there was a spring, from which the water 
 in its natural channel ran over the land of the plaintiff. The 
 defendant diverted the water from the spring, and caused it to 
 flow upon his meadow for the purpose of irrigation, to the 
 extent of three or four acres, for which diversion in the Court 
 below the plaintiff recovered judgment. In rendering the 
 opinion of the Supreme Court, on appeal, the Chief Justice 
 said: "The defendant has a right to use so much as is neces- 
 sary for his family and cattle, but he has no right to use it for 
 irrigating his meadow if thereby he deprives the plaintiff of 
 the reasonable use of the water in its natural channel. "^ 
 
 § 74 Same. — Chancellor Kent's Opinion. — One of the most 
 frequently quoted and respected American writers upon this 
 subject is Chancellor Kent. Writing, as he did, at a compar- 
 
 1 In Gillett vs. Johnson, 30 Conn. 2 See also Arnold vs. Foot, 12 
 180. Wend. 330.
 
 116 COMMON LAW THEORIES. [§ 74. 
 
 atively early period in the history of American jurisprudence, 
 and before statutory enactments and case law had invaded 
 the precincts of the common law of England to any great 
 extent in this country, and standing at the very head of his 
 profession both as a law writer and expounder of the law, he 
 certainly can be quoted as among the very highest authori- 
 ties of his day, upon this subject of the use of waters of natural 
 streams and lakes by riparian proprietors. ' ' Every pro- 
 prietor," he says, "of lands on the banks of a river has 
 naturally an equal right to the use of the water which flows 
 in the stream adjacent to his lands, as it is wont to run 
 {^Currere solebat), zvithout dimimdion or alteration. No pro- 
 prietor has a right to use the water to the prejudice of other 
 proprietors above or below him, unless he has a prior right 
 to divert it, or a title to some exclusive enjoyment. He has 
 no propert)^ in the water itself, but a simple usufruct while it 
 passes along. Aqua ciirrit et debit currere ut ciirrere solebat is 
 the language of the law. Though he may use the water 
 while it runs over his land as an incident to the land, he can- 
 not unreasonably detain it or give it a?iother direction, and he 
 '}mist return it to its ordinary channel when it leaves his estate. 
 Without the consent of the adjoining proprietors, he cannot 
 divert or diminish the quantity of water which would 
 otherwise descend to the proprietors below, nor throw the 
 water back upon the proprietors above, without a grant, or an 
 uninterrupted enjoyment of twenty years which is evidence 
 of it. This is the clear and settled doctrine upon the subject, 
 and all the difficulty that arises consists in the application. 
 The owner must so use and apply the water as to work no 
 material injur}^ or annoyance to his neighbor below him, who 
 has an equal right to the subsequent use of the same water ; 
 nor can he, by dams or any obstruction, cause the water 
 injuriously to overflow the grounds and springs of his 
 neighbor above him." 
 
 . Then follows the passage that is often quoted to prove that 
 water, under the common law, cannot be employed for irriga- 
 tion. It is as follows : "Streams of water are intended for 
 the use and comfort of man; and it would be unreasonable and 
 contrary to the universal sense of mankind to debar every
 
 § 74, 75.] COMMON LAW THEORIES. 117 
 
 riparian proprietor from the application of the water to domes- 
 tic, agricultural, and manufacturing purposes, provided the 
 use of it be made under the limitations which have been 
 mentioned; and there will no doubt inevitably be, in the 
 exercise of a perfect right to the use of the water, some 
 evaporation and decrease of it, and some variations in the 
 weight and velocity of the current. But, de inhiimis non curat 
 lex, and a right of action by the proprietor below would not 
 necessarily follow from such consequences, but would depend 
 upon the nature and extent of the complaint or injury and 
 the manner of using the water. All that the law requires of 
 the party by or over whose land a stream passes is, that he 
 should use the water in a reasonable manner, and so as not to 
 destroy, or render useless, or materially diminish or affect the 
 application of the water by the proprietors above or below on 
 the stream."^ 
 
 § 75. California Construction of Above — Conclusions. — 
 
 Referring to the above passage from Kent, the Supreme Court 
 of California, in the case of Lux vs. Haggin,^ said: "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 the 
 signification the equivalent of a substantial deprivation of 
 capacity in a lower proprietor to employ the water for useful 
 purposes. The adjective is prefixed to injury, and the words 
 seem to have reference to the enjoyment of the use by the 
 inferior owner, not to his mere abstract right to the use as 
 against others than riparian owners, and to intimate that he 
 cannot complain of a reasonable exercise of the use by another 
 who possesses the general right in common with himself. 
 The passage as a whole may fairly be said to convey the idea 
 tliat water may be used for agricultural or manufacturing 
 purposes when such use does not materially deprive the lower 
 proprietor of water either for drinking or agriculture."^ 
 From the above it will therefore appear that in case of any 
 
 ' Kent Com., 43q, 440. .'< vSee note (a) 13111 Ivil. KcmiI, 441 
 
 269 Cal. 225; 10 I'ac. Rc'i). 756. ami cases cited.
 
 118 
 
 COMMON LAW THEORIES. 
 
 §75.] 
 
 diversion of the water from a natural watercourse, by one 
 riparian proprietor, even without actual injury to any of the 
 other riparian owners upon the stream, the common law 
 authorities hold that a cause of action would lie against the 
 divertor, on the ground that a right had been infringed upon. 
 This is a doctrine powerfully sustained by the American com- 
 mon law authorities. Also, that for any purpose whatsoever, 
 for any essential diminution of water which Nature directed 
 should flow in a certain channel, the law will interfere;^ for as 
 it is said in the case of Tillotson vs. Smith, supra, "It is a long 
 established principle of the common law that wherever any 
 act injures another's right, and would be evidence in future 
 in favor of the wrong doer, an action may be maintained for 
 an invasion of a right, without proof of any specific injury. "^ 
 
 1 Woodman vs. Tufts, 9 N. H. 88; 
 Bolliver Mfg. Co. vs. Neponset 
 Mfg. Co., 16 Pirk. 241; Crocker vs. 
 Bragg, 10 Wend. 260, where it was 
 held, that a stream of water can- 
 not be diverted from its natural 
 course, without the consent of the 
 owner, over or by whose land it 
 passes. Although such owner may 
 not require the whole or any part 
 of the water for his own use. See 
 also Baldwin vs. Caulkins, 10 
 Wend. 167; Heath vs. Williams, 
 25 Maine, 209; 43 Am. Dec. 269; 
 Whipple vs. Cumberland Mfg. Co. 
 2 Story Ct. Ct., 661; Branch vs 
 Doane, 17 Conn. 402; iS Id. 233; 
 Parker vs. Griswold, 17 Conn. 288; 
 9 L. R. A. 810, note and cases 
 cited; Lind vs. New Bedford, 121 
 Mass. 286, 290; Chapman vs. 
 Thames Mfg. Co., 13 Conn. 269; 
 Woodman vs. Tufts, 9 N. H. 88; 
 Bliss vs. Rice, 17 Pick. 23; Blan- 
 chard vs. Baker, 8 Green, Me. 253; 
 Webb vs. Portland Mfg. Co., 3 
 Sumn. 189; Gould on Waters, Sec. 
 
 405 and cases cited; Newhall vs. 
 Ireson, 8 Cush. 595; Stowell vs. 
 Lincoln, 11 Gray, 434; Bateman vs. 
 Hussey, 12 Maine, 407; Monroe vs. 
 Stickney, 48 Id. 462; Cowles vs. 
 Kidder, 24 N. H. 364, 379; Bassett 
 vs. Saulsbury Mfg. Co., 28 N. H. 
 438; Gerrish vs. New Market Mfg. 
 Co., 30 N. H. 479, 484; Amoskeag 
 vs. Goodale, 46 N. H. 53; Chatfield 
 vs. Wilson, 27 Vt. 670; Tuthill vs. 
 vScott, 43 Vt. 525; Blumleigh vs. 
 Dawson, i Gilman, 544; Holme vs. 
 Shreve, 3 Green Ch. 116; Ripka 
 vs. Sergent, 7 Watts. & S. 11; 
 Miller vs. Miller, 9 Penn. St. 74; 
 Delaware Canal Co. vs. Terry, 27 
 Penn. St. 143; Graves vs. Sholl, 42 
 Penn. St. 58; Stein vs. Borden, 42 
 Ala. 130; Tootle vs. Clifton, 22 
 Ohio St. 274; Mitchell vs. Barry, 
 26 Up. Can. Q. B. 416; Hendrick 
 vs. Cook, 4 Georgia, 241; Tillotson 
 vs. Smith, 32 N. H. 90, 96; 3 Sum- 
 ner, 189. 
 
 2 But see Bullard vs. Saratoga 
 Mfg. Co., 77 N. Y. 525.
 
 [§76. 
 
 COMMON LAW THEORIES. 
 
 119 
 
 §7G. Same.— " Reasonable Use" Discussed.— It is laid 
 
 down in the books that any riparian owner, under the com- 
 mon law rules ma}^ make what is called a " reasonable" use 
 of the stream passing by or through his lands for extraordi- 
 nary purposes, or as some authors put it, "for purposes 
 which are not domestic."^ Now the question arises, what is 
 a reasonable use? But in general the rule as laid down upon 
 the subject is, that the reasonable usefulness of a quantity of 
 water for an 3^ of these purposes is always relative. It does 
 not depend upon the convenience of, or the profitable results 
 to, any particular proprietors, but upon the reasonable use, 
 reference being had to the needs of all the other proprietors on 
 the stream. Also it depends upon the size of the stream, the 
 fall of the water, its volume, velocity, and prospective rise and 
 fall,- the character of the soil, the number of proprietors, the 
 amount of water needed to irrigate the lands per acre, and a 
 
 1 Washburn on Easements, p. 
 216; Angell on W. C. Sec. 95; 3 
 Kent. Com. 440; Elliot vs. Fitch- 
 burg Ry. Co., 10 Cush. 191, 195; 
 Tyler vs. Wilkinson, 4 Mason 397; 
 Union Mill Co. vs. Ferris, 2 Sawyer 
 176; Evans vs. Merriweather, 3 
 Scam. 492; Miller vs. Miller, 9 
 Penn. St. 174; Arnold vs. Foot, 12 
 Wend. 330; Embrey vs. Owen, 6 
 Exch. 352; Nultall vs. Bracewell, 
 L. R. 2, Exch. i; Minn, vs Gil- 
 mour. 12 Moore, P. C. 131, 156; 
 Gerrish vs. New Market Mfg. Co., 
 30 N. H. 478; Tillotson vs. Smith, 
 32 N. H. 90; Norway Plains Co. 
 vs. Bradley, 52 N. H. 86; Holden 
 vs. Lake Co., 53 N. H. 552; Snow 
 vs. Parsons, 28 Vt. 450; Mason vs. 
 Hill, 5 H. & Ad. i; Barrett vs. Par- 
 sons, 10 Cush. 367; Wood vs. Waud, 
 3 ICxch. 748; Cory vs. Daniels, 8 
 Met. 466; Pitts vs. Lancaster Mills, 
 13 Met. 156; Therber vs. Martin, 
 2 Gray 394; Tourtellot vs. Phelps, 
 4(jray 370; Chandler vs. Ilowland, 
 
 7 Gray 348, Wood vs. Edes, 2 Allen 
 578; Twiss vs. Baldwin, 9 Conn. 
 291; Wadsworth vs. Tillotson, 15 
 Conn. 366; Agawan Canal Co. vs. 
 Edwards, 3 O'Con. 476; Merrit vs. 
 Brinkerhoff. 17 Johns. 306. 
 
 2lbid; Timm vs. Bear, 29 Wis. 254, 
 where it was held: "as between 
 an upper and a lower mill on the 
 same stream, what constitutes a 
 reasonable use of water by the 
 upper mill, depends on the partic- 
 ular circumstances of each case; 
 such as the nature, extent and 
 necessity of the uae, the manner in 
 which the water is applied, the 
 previous usage, the nature and 
 condition of the improvements 
 upon the stream, the volume and 
 velocity of the water, and its pro- 
 spective rise and fall, the nature 
 and situation of the lower mill 
 and pond, the capacity of the lat- 
 ter, and the practicability of en- 
 larging it."— P'arrell vs. Richards, 
 30 N.J. p:q. 511.
 
 120 COMMON LAW THEORIES. [§ 76. 
 
 variety of other circumstances and conditions surrounding 
 each particular case.^ No precise rule has ever been laid 
 down, nor can one be laid down, that will govern every case, 
 especially for the use of water for the purpose of irrigation. 
 As the Court said in the case of Elliot vs. Fitchberg Ry. 
 Co. 2 upon this point, "To take a quantity of water from a 
 large running stream for agricultural or manufacturing pur- 
 poses would cause no sensible or practicable diminution of 
 the benefit, to the predjudice of a lower proprietor; whereas 
 taking the same quantity from a small running brook passing 
 through many farms would be of great and manifest injury 
 to those below, who need it for domestic supply or for water- 
 ing cattle; and therefore it would be an unreasonable use of the 
 water, and an action would lie in the latter case and not in 
 the former." And again in the same case the Court, refer- 
 ring to the use of water for irrigation, says: "It has some- 
 times 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 in all cases. That a portion of the water of a 
 stream ma}^ be used for purposes 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 purpose 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 unreasonabl3^ The point may, perhaps, be 
 best illustrated by extreme cases. One man, for instance, 
 may take water from a perennial stream of moderate size by 
 means of buckets or a pump — for the mode is not material — 
 to water his garden. Another may turn a similar current 
 over a level tract of sandy soil of great extent, which in its 
 ordinary operation will nearly or quite absorb the whole 
 
 Jjones vs. Adams, 20 Nev. 78; 6 ^10 Cush. 191, 194; 57 Am. Dec. 
 
 Pac. Rep. 442, 444. 85.
 
 ^ 76, 77.] com:>ion law theories. 121 
 
 volume of the stream, although the relative positions of the 
 land and stream are such that the surplus water, when there 
 is any, is returned to the bed of the stream. The one might 
 be regarded as a reasonable use, doing no perceptible damage 
 to any lower proprietor, while the other would nearly 
 deprive him of the whole beneficial use, and yet in both 
 the water would be used for irrigation." 
 
 This subject, as treated bj' the common law, is summed 
 up in the opinion rendered bj' the Supreme Court of Nevada 
 in a comparatively recent case^ which reads as follows: "Under 
 the rules of the 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 irri- 
 gation. It is declared in all of the authorities upon the subject 
 that it is impossible to lay down the precise rule which will be 
 applicable to all cases. The question must be determined 
 in each case with reference to the size of the stream, the 
 velocity of the water, the character of the soil, the 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 water of 
 the stream by other proprietors." The question as to 
 whether the w^ater has been used reasonably is one of fact for 
 the jury to determine from all the circumstances coimected 
 with the case.^ 
 
 § 77. Same— Conclusions.— So from the above conclusions 
 which are supported by the authorities cited it is plain that 
 under the common law the quantity of water which any one 
 proprietor may divert for the purpose of irrigation depends 
 upon all the circumstances of each particular case; bnt the 
 amount must not be greater than that which each of the (Jther 
 proprietors may divert to irrigate their lands, from the lact 
 that all their rights in and to the waters of the stream are 
 
 ijones vs. Adams, 19 Nev. 7B, 83. Sibid; Hayes vs. Wal.Iroii. .| » N. 
 
 II. 580.
 
 122 COMMON LAW THEORIES. § 77, 78- 
 
 equal. No rights of the other proprietors must be infringed 
 upon, or an action against the party diverting the water will 
 lie at law for damages, or in equity for an injunction. It 
 is plain therefore why, in the arid west, (whose agricultural 
 resources depend almost entirely upon the extent of irrigation) 
 the common law was found to be a very imperfect and 
 impracticable guide governing the rights to waters; and 
 why in the States formed from the country lying west of the 
 looth meridian the common law should be modified in all, 
 and entirely abolished in some.^ According to the literal 
 construction of the common law water might under certain 
 circumstances be diverted from natural rivers and streams 
 by riparian proprietors for the purpose of irrigation, but its 
 use for this purpose was so restricted and hemmed in by the 
 rules of that law as to defeat its practical application. 
 
 §78. Same.— Diversion of SiiMerraueaii Waters.— The 
 
 common law theories of the diversion of waters from surface 
 streams and water-courses have been discussed above. We 
 now come to a question that is somewhat different and which 
 may be stated thus: Is the right, under the common law rules, 
 to the enjoyment of an underground spring, from underground 
 sources, governed by the same rule of law as that which applies 
 to and regulates a water-course flowing on the surface? Or, in 
 other words, whether in the case of one party owning a plot of 
 land from which a spring issues, the owner of another plot 
 of land higher up is liable at law or in equity for digging down 
 in his own land and thereby cutting ofl" or diminishing the 
 waters of the spring below, to the injury of the owner of the 
 same. The authorities, both as laid down by the English and 
 early American decisions, differ on this proposition. Black- 
 stone says: "Land hath also, in its legal signification, an 
 indefinite extent upwards as well as downwards. Cujiis est 
 solum, ejus est icsqiie ad coelum, is the maxim of the law; 
 upwards, therefore, no man may erect any building, or the 
 like, to overhang another's land; and downwards -whatever is 
 in a direct line, between the surface of any land and the centre 
 
 1 See Part ii, States and Territories.
 
 [§ 78. COMMON LAW THEORIES. 123 
 
 of the earth, belongs to the owner of the surface; as in every 
 day's experience in mining countries. So that the word 'land' 
 includes not merely the face of the earth but everything under 
 it or over it."^ But the rule of Blackstone seems to have been 
 modified by the English and early American decisions to some 
 extent, and the rule seems to be this: That water percolating 
 through the ground under the surface, either without a defi- 
 nite channel, or in courses which are unknown and unascer- 
 tainable, belong to the owner of the land in which it is found, 
 and hence is not subject to the settled law governing the 
 rights of riparian owners to the water of surface streams.^ 
 In the case of Dickinson vs. Grand Junction Canal Co., supra, 
 Pollock. C. B., in delivering the opinion said: " When water 
 is on the surface the right of the owner of the adjoining land 
 to the usufruct of that water is not a doubtful matter of fact; 
 it is public and notorious and such a right ought, as a matter 
 of course, to be respected by every one; and indeed, if the 
 course of a subterranean stream were well-known, as is the 
 case with many which sink underground, to pursue for a short 
 space a subterranean course and then emerge again, it never 
 could be contended that the owner of the soil under which the 
 stream flowed could not maintain an action for the diversion 
 of it, if it took place under such circumstances as would have 
 enabled him to recover if the stream had been wholly above 
 ground. * * * If then the stream is diverted by altering 
 its course, or cutting down its banks, or the water abstracted 
 from it for unauthorized purposes the owner has his right of 
 action against the wrong doer."-^ 
 
 l2Bla. Com., i8. daiit having dug his well on his 
 
 SChasemore vs. Richards, 7 L. own land, in good faith, for the 
 
 H. Co., 349; 5 H. & N. 988; Dick- obtaining of water for his own 
 
 inson vs. Grand Junction Canal domestic uses, is not liable for 
 
 Co., 7 Exch., 282. any damage which incidentally 
 
 3 Action vs. Blundell, 12 M. & resulted to the plaintiff by renson 
 
 W., 324; Hammond vs. Hall, 10 of thereby diverting the water 
 
 Sim., 552; Cooper vs. Parker, 3 which had been accustomed to 
 
 Taut, 99; Bolton vs. Bensted, i percolate or flow in unknown or 
 
 Camp., 463; Chase vs. Silverton, subterranean courses into pbdn- 
 
 62 Maine, 175, where the defen- tiff's spring. Booth vs. Driscoll,
 
 124 COMMON LAW THEORIES. [§ 79. 
 
 § 79. Same— Authorities Discussed. — In the case of Smith 
 vs. Adams, 1 in the Court of Chancery of New York it was 
 held that where a spring is supplied by a hidden stream 
 passing through the earth the owner of the land above where 
 the spring issues has no right to divert such water by an 
 excavation or artificial works upon his own land, to the 
 injury of the persons below the spring who are supplied by its 
 waters in their natural course and who have a prescriptive use. 
 The Chancellor to whom it had been appealed in his opinion 
 stated: " It is necessary then to examine whether the divert- 
 ing of water found in the earth in the defendant's own land, to 
 the extent to which the water has been diverted by Adams in 
 this case, entitles the complainant to the extraordinar)^ 
 remedy of a perpetual injunction under the decree of the 
 , Court. Upon principle I think that the rights of the parties 
 must be the same whether the Spring issues from the earth 
 upon the land of Adams or, after passing under ground 
 through his land first makes its appearance upon the surface 
 of the earth upon the lot of Smith, a little farther down. 
 The only difficulty presented in the later case is to establish 
 the fact that the water diverted is the same which in its 
 natural course issued upon and flowed across the lands below. 
 * * * * Here the fact is clearly established that the stream of 
 water of half an inch in diameter, which the defendant has 
 diverted to his house by means of the aqueduct upon his own 
 land, is a part of the larger stream which naturally issued from 
 the earth upon the spring lot below. 
 
 "The law is well settled that the owner of the superior heri- 
 tage has no right to detain or divert the water which passes 
 through his land, to the injurj^ of those who were accustomed 
 to receive it upon their land below. There can be no reasonable 
 doubt of the complainant's right to sustain an action in the 
 appropriate tribunal for the abstraction of a part of the water 
 
 20 Conn. 535; Greenleaf vs. Fran- vs. Baugh, 25 Penn. St., 442; 6 Am. 
 
 ces, 18 Pick. 117; Brown vs. Illius, Dec. 721; Ellis vs. Duncan, 29 N. 
 
 27 Conn. 84; 25 Conn. 593; Delhi vs. Y. 466; 21 Barb. 230; Radcliffe vs. 
 
 Youmans, 45 N. Y. 362; S. C. 5 Brooklj-n, 4 N. Y. 195; Pixley vs. 
 
 Barb. 316; Dexter vs. Prov. Acque- Clarke, 35 N. Y. 520; 32 Barb. 268. 
 duct Co., I Story, 3S7; Whealley i 6 Paige N. Y. Chan. 435; 442.
 
 § 79, 80.] COMMON LAW THEORIES. 125 
 
 of a Spring, if he has in fact sustained any damage either 
 directly or by the prospective diminution of the value of the 
 spring lot." 
 
 The Chancellor seemed to hold that an action would lie if 
 any injury had been sustained through the loss of the supply 
 of water, without regard to whether the water percolated 
 through the ground above the spring or flowed in a well 
 defined subterranean channel. ^ But if the underground 
 currents of w ater are in well defined and known channels the 
 rules of law applicable to the rights of the riparian owners of 
 lands bordering upon streams flowing upon the surface are 
 also applicable. 2 But if the water passes through his land by 
 naturally percolating through the soil he may draw of the 
 water for his own use, whether it decreases the flow of a 
 spring below or not to the injury of the owner thereof; and it 
 is also held that no adverse right against him can be acquired 
 by prescription, by the owner of the spring below against the 
 owners above. '"^ 
 
 § 80. Priority of Appropriation at (oiuniou Law.— At 
 
 common law^ the right of every proprietor upon a stream to 
 the use of the running water thereof exists only as an incident 
 to the private ownership of the soil over which it runs, or at 
 least the ownership of the bank bordering upon the stream, 
 
 i Also see Dickinson vs. Grand Burroughs vs. Saterlee, 67 Iowa, 
 
 Junction Canal Co., 7 Kxch. 282; 396; 56 Am. Rep. 35. 
 
 Cole S. M. Co. vs. Virginia & G. -^Chaseniore vs. Richards, 7 II. 
 
 II. W. Co., I Sawy. 470; Emporia L. Cas. 349; 5 H. & N. 9S2; Smith 
 
 vs. Suden, 25 Kans. 423. vs. Kendrick, 7 C. B. 546; Dickin- 
 
 SDickinson vs. Grand Junction son vs. Grand Junction Canal Co., 
 
 Canal Co., 7 Exch. 282; Chasemore 7 Exch. 2S2; Ravv.'itrom vs. Taylor, 
 
 vs. Richards, 2 H. & N. 186; 7 H. 11 Exch. 369; Sweet vs. Cutts, 50 
 
 L. Cas. 374; Cole Silver Mining Co. N. H. 439; Wheatley vs. Baugh, 25 
 
 vs. Virginia Mining Co.. i Saw. Penn. St. 528; 64 Am. Dec. 721 and 
 
 470; Collins vs. Chartiers V. G. Co. note; Frazier vs. Brown, 12 Ohio, 
 
 131 Penn. St. 143; 17 Am. Rep. 791 St. 294, Carbrey vs. Willis, 7 .Allen 
 
 and note; Mahan vs. Brown, 13 367; Bealey vs. Shaw, 6 I^nst, 208; 
 
 West, 261; Ewart vs. Belfast Poor Bolton vs. Bensted. i Camp. 463; 
 
 Law Guardians, 9 L. R. Ir. 172; Whetstone vs. Bowser, 29 IVnn. 
 
 St. 59; See ante section 49.
 
 126 COMMON LAW THEORIES. [§ 80 
 
 and arises ex jure naturae} and is equal in all of the proprietors 
 whose lands adjoin the same stream.^ And, as we have seen, 
 this right to the reasonable use of the water of a stream, as it 
 passes through or by a proprietor's lands, depends upon all of 
 the circumstances of each particular case; and also, after a 
 riparian owner has made a so called "reasonable use" of it, 
 he must return it without substantial diminution in quantity, 
 or alteration in quality, to its natural bed or channel before 
 it leaves his own land, so that it will reach the proprietor 
 below him in its full, original, and natural condition. ^ If he 
 is the owner of the land adjoining the stream his rights exist 
 in and to the waters thereof, whether he chooses to exercise 
 them or not, and he may begin to exercise them when he will.* 
 So, under the common law, a prior appropriation of water is 
 not recognized as giving any superior rights as against other 
 proprietors, either higher up or lower down on the stream, or 
 as against any of the other proprietors abutting on either 
 side of him on the shores of a lake, unless he has acquired 
 a grant from all the other proprietors affected by such 
 appropriation for such superior rights, or by prescription 
 which pre -supposes a former grant to him.^ "The doctrine of 
 
 1 Ante Sec. 56; Angell Secs.5, lo; such circumstances as would be 
 Gould on Waters, Sees. 204-209, required to establish right by pre- 
 and cases cited; Pom. on Riparian scription. Heath vs. Williams, 25 
 R., Sec. 4. Me. 209; 43 Am. Dec. 265, and note 
 
 2 Ibid. and cases. Wood vs. Edes, 2 Allen, 
 
 3 Ibid. 578; Bliss vs. Kennedy, 43 111. 67; 
 4jl,id. Evans vs. Merriweather, 3 Scam. 
 
 5 Gould on Waters, 226. 227; An- 492; Keeney Mfg. Co. vs. Union 
 
 gell on Water-Courses, Sees. 130- Mfg. Co., 39 Conn. 576; Hartzallvs. 
 
 135; Pomeroy on Riparian Rights, Sill, 12 Pa. St. 248; Pugh vs. 
 
 Sec. 4; Gilman vs. Tilton, 5 N. H. Wheeler, 2 Dev. & B. 55; Tyler vs. 
 
 231; Cowles vs. Kidder, 24 N. H. Wilkinson, 4 Mason, 397; Gould vs. 
 
 364; Parkervs. Hotchkiss,25Conn. Barton Duck Co., 13 Gray, 450; 
 
 321, where the Court held that: Merritt vs. Brinkerhoff, 17 Johns, 
 
 as between riparian proprietors 306; Mason vs. Hill, 5 B. & Ad. i, 
 
 priority of appropriation of the 3 B. & Ad. 304; Wright vs. Howard 
 
 waters of a running stream which i Sim. & Sta. 190; Sampson vs. 
 
 is common to all for the driving Hoddinott, i C. B. N. S. 611; Chase- 
 
 of machinery ,gives one no superior more vs. Richards, 2 H. & N. 181; 
 
 right, unless it has been continued Bealy vs. Shaw, 6 East. 208. 
 for such a period of time and under
 
 § 80, 81]. 
 
 COMMON LAW THEORIES. 
 
 127 
 
 appropriation" so called, is not a doctrine of the common 
 law.^ 
 
 § 81. Same— Authorities Discussed.— In the language of 
 Mr. Justice Story, in the case of Tyler vs. Wilkinson, ^ the 
 right of all the proprietors to have a stream flow in its accus- 
 tomed course is laid down as a right which can only be in- 
 terfered with by a grant or by an adverse enjoyment of the 
 water for a period of time limited by the statute of limitation. 
 "But, of a thing common by nature," he says in that very im- 
 portant opinion, "there maybe an appropriation by general 
 consent or grant. Mere priority of appropriation of running 
 water, without consent or grant, confers no exclusive right. 
 It is not like the case of mere occupancy, where the first occu- 
 pant takes by force of his priority of occupancy. That sup- 
 poses no ownership already existing, and no right to the use 
 
 1 2 Bla. Com. 14; Cox vs. Mathews, 
 I Vent. 237; Liggins vs. Inge, 7 
 Bing. 682; 20 Eng. C- L. 287; Sack- 
 rider vs. Beers, 10 Johns. 241; God- 
 dard's Law of Easements, 250; 
 Mason vs. Hill, 5 Barn. & Adol. i; 
 Rutland vs. Bowler, Palmer, 200; 
 Howard vs. Wright, i Shaw, 64; 
 Van Bergen vs. Van Bergen, 3 
 Johns. Ch. 282 8. C 8 Am. Dec. 511. 
 
 Goddard in his law of ease- 
 ments, p. 251 declares: "That all 
 riparian owners of natural streams 
 have a riparian right to the use of 
 water as it flows past their land, 
 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 law." * * * He adds, 
 "the doctrine (of appropriation 
 was not established until compara- 
 tively modern times," etc. He 
 states, after referring to some of 
 the early decisions, that the theory 
 of appropriation was much modi- 
 fied by various decisions, "as the 
 
 nature of riparian rights was 
 brought more fully under consid- 
 eration." He concludes: "Appro- 
 priation of the water of flowing 
 streams has thus gradually fallen 
 from being considered the means 
 of acquiring important rights to 
 being deemed of no itnporiatice 
 whatever.^' 
 
 See 32 Edward iii; Angell on 
 Water-Courses 93; Year Book 14 
 Henry VIII, 31. 
 
 In Chasemore vs. Richards, 7 H. 
 L. Cases 384, Lord Winsleydale 
 declares: "We may consider, there- 
 fore, that this proposition is indis- 
 putable, that the right of the pro- 
 prietor to the enjoyment of a 
 water-course is a natural right, 
 and is not acquired by occupa- 
 tion." Shury vs Pigot, Bul-t. 399; 
 Countess of Rutland, vs. Bowler, 
 Palmer, 390; Washburn on Ease- 
 ments and Servitudes, 319; and 
 cases cited; Gould on Waters, Sees. 
 226, 227, 330. 
 
 24 Mason 397, 401.
 
 128 
 
 COMMON LAW THEORIES 
 
 [§81 
 
 already acquired. But our law annexes to the riparian pro- 
 prietors the right to use in common, as an incident to the 
 land; and whoever seeks to found an exclusive use must es- 
 tablish a rightful appropriation in some manner known and 
 admitted by the law. Now, this may be a. grant from all the 
 proprietors whose interest is effected by the particular appro- 
 priation, or by a long exclusive enjoj^ment without interrup- 
 tion, which affords a just presumption of right. "^ 
 
 Also in a North Carolina case,^ Chief Justice Ruffin says: 
 "The truth is that every owner of land on a stream neces- 
 sarily and at all times is using water running through it, if 
 in no other manner in the fertility it imparts to his land, and 
 the increase in the value of it. Therefore there is no prior or 
 
 1 See also the opinion of tlie same 
 learned judge in Whipple vs. Cum- 
 berland Mfg. Co., 2 Story, (Cir. Ct.) 
 66i. There is, however, a class of 
 English cases which seem to hold 
 to the contrary of the above rule, 
 evidently upon the theory of the 
 civil law as laid down by the earli- 
 est authorities upon the subject. 
 These cases are notably, Bealey vs. 
 Shaw, 6 East, 208, Saunders vs. 
 Newman, 3 B. & Ad. 258; Williams 
 vs. Morlaud, 2 D. & Cress. 915; Cox 
 vs. Mathews, i Vent. 137, 
 
 But, so far as we can see, this 
 principle was never approved in 
 America to any great extent. How- 
 ever, see Hatch vs. D wight, 17 
 Mass 289; and opinion of Duncan, 
 J., in case of Strickland vs. Todd, 
 10 S. & Rawle's, 69, who in con- 
 struing the following passage of 
 Blackstone: " If a stream of water 
 is unoccupied, a person may erect 
 a mill thereon and detain the water 
 yet not so as to injure his neigh- 
 bor's prior mill, for he has by the 
 first occupancy acquired a property 
 in the current," (2 Blackstone Com. 
 403), said: "My own opinion is. 
 
 that this doctrine ought not to be 
 applied here." 
 
 Had this rule been adopted, it 
 would have thrown to the ground 
 the fundamental principles of the 
 common law relating to running 
 water, and all the leading cases 
 respecting the usufructuar}'^ rights 
 of riparian proprietors. As Chief 
 Justice Thompson of the Supreme 
 Court of New York said in the 
 case of Piatt vs. Johnson, (15 
 Johns. N. Y. 213;) "to give 
 such an extension to the doctrine 
 of occupancy would be danger- 
 ous and pernicious in its conse- 
 quences." "The elements," he 
 adds, " being for general and pub- 
 lic use, where the benefit is ap- 
 propriated to individuals by oc- 
 cupancy this occupancy must be 
 regulated and guarded with a view 
 to the individual rights of all who 
 have an interest in its enjoyment, 
 and the maxim sic utere tuo ut 
 alie7iiitnnon /aedos must be taken 
 and construed with an eye to the 
 natural rights of all." 
 
 spugh vs. Wheeler, 2 Dev. & 
 B. 55;
 
 § 81] COMMON LAW THEORIES. 129 
 
 posterior in the use, for the land of each enjoyed it alike from 
 the origin of the stream, and the priority of a particular new 
 application or artificial use of the water does not, therefore, 
 create the right to that use; but the existence or non-existence 
 of the application at a particular time measures the damages 
 of a wrongful act of another in derogation of the general 
 right to the use of the water as it passes to, through, or from 
 the land of the party complaining. The right is not founded 
 in user but is inherent in the ownership of the soil, and when 
 a title by use is set up against another proprietor there must 
 be an enjoyment for such length of time as will be evidence 
 of a grant, and thus constitute a title under the proprietor of 
 the land." And further on he makes this statement: "The 
 use to w^hich one is entitled is not that which he happens to 
 get before another but it is that which by reason of his owner- 
 ship of land on the stream he can enjoy on his land and as an 
 appurtenant to it." 
 
 In accordance with these principles it is settled that an 
 upper riparian proprietor cannot, by mere prior appropriation, 
 acquire the right as against a lower proprietor to divert the 
 entire stream or an unreasonable proportion thereof for irri- 
 gation or mechanical uses, without restoring the water to the 
 natural bed of the stream before it leaves his land, except 
 where the common law has been modified by local usage or by 
 statutory enactment.^ 
 
 In a recent case decided by the New York Court of Ap- 
 peals, ^ the common law doctrine was examined by the Court 
 with much learning and ability, early authorities were copi- 
 ously cited, and the conclusions reached were in complete 
 accordance with the common law rules as they are universally 
 construed by the Courts of England and of the United States. 
 And there the Court held that the State could not, except 
 under its power of eminent domain and upon "just compen- 
 sation," divert the waters of a natural stream or lake, or con- 
 vert them to other purposes than for navigation. Also, in the 
 former case of Lux vs. Haggin, decided by the California Su- 
 
 1 .See also Heath vs. Williams, 25 2 Smith vs. City of Rochester, 
 
 Me. 209; 43 Am. Rep. 265 and 92 N. Y., 463. 
 note.
 
 130 COMMON LAW THEORIES. [§ 81, 82 
 
 preme Court, it is said by Mr. Justice McKinstry, who deliv- 
 ered the opinion : "In examining the numerous cases which 
 establish that the doctrine of ' appropriation ' is not the doc- 
 trine of the common law, we meet with an embarrassment of 
 abundance." ^ 
 
 § 82. Accretion and Reliction. — The question is well set- 
 tled at common law that the person whose land is bounded by 
 a stream of water which changes its course gradually, by 
 alluvial formations, or the water of which gradually receded, 
 shall still hold the same boundary upon the stream, including 
 accumulated soil ; this is so, without regard to the question 
 whether such accumulations or relictions were formed wholly 
 l)y natural causes or by such causes influenced by the artifi- 
 cial works of others, and also without regard to the questions 
 whether such stream is navigable or unnavigable, private or 
 public.^ 
 
 The right to accretions as such in the bed of a river or 
 water-course depends on actual contiguity, and any separa- 
 tion, however slight, of the claimant's land from the alluvion 
 by the land of another defeats the claim. 
 
 As is laid down in the case of Bates vs. 111. Central Ry. Co.,^ 
 "before a proprietor can set up his claim to accretions and the 
 like he must first show that he owns the shores; and if he fail to 
 establish his ownership judicial inquiry respecting his rights 
 in or under the waters adjoining are abstractions and useless."^ 
 
 I69 Cal. 265, 390; 10 Pac. Rep. ger, 35 Fed. Rep., 188; Perry vs. 
 753. Pratt, 31 Conn., 442; Gerris vs. 
 
 2 Angell on Water-courses, Sees. Clow, 48 N. H., 9; Ingraham vs. 
 53-57; Gould on Waters, Sees. 155- Wilkinson, 4 Pick., 268; Witmore 
 159; 2 Bla. Com. 262; Rex vs. Yard- vs. All. White Lead Co., 37 Barb., 
 borough, 3 B. &C., 91; 5 Bing, 163; 70; Hopkins Academy vs. Dickin- 
 2 Bligh., N. S., 147; New Orleans son, 9 Cush., 551; Halsey vs. Mc- 
 vs. U. S., 10 Peters, 662; Jones vs. Cormick, 18 N. Y., 147. 
 Soulard, 24 How. 41; Saulett vs. 3i Black U. S., 204; 
 
 Shepherd, 4 Wall., 502; Schools vs. 4 See also ReState Reservation 
 
 Bixby, 10 Wall., no; Jones vs. Com's, 37 Hun., 537; Saulet vs. 
 Johnson, 18 How., 150; Handly vs. Shepherd, 4 Wall., 502; Bristoll 
 Anthony, 5 Wheat., 380; Barney vs. vs. Carroll Co., 95 111., 84; Peau- 
 Keokuk, 94 U. S., 324; Jefferis vs. fort vs. Duncan, i Jones, (N. Y.) 
 East Omaha Land Co., 134 U. S., 234; Posey vs. Jones, 7 Lea, (Tenn) 
 178; County Saint Clair vs. Lov- 98. 
 ington, 23 Wall., 46; Rutz vs. See-
 
 § 82]. COMMON LAW THEORIES. 131 
 
 An accretion or reliction, to vest a title in the owner of land 
 abutting upon the stream, must be so slow that its increase 
 should be imperceptible ; ^ but if sudden and considerable it 
 belongs to the sovereign or public.^ And converselj^ every 
 proprietor whose land is thus bounded by a stream 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 can- 
 not be held accountable for his gain.'^ 
 
 These principles have been sustained throughout the West- 
 ern States, where the common law principles have been for 
 the most part modified.* No other rules than these can be ap- 
 plied on just principles, and their effect is that where a per- 
 son's lands actually border upon the stream and his riparian 
 rights have once accrued by virtue of the ownership in the 
 lands so situated none of those rights can be lost by the 
 gradual formation of new soil upon the margin of the water, 
 caused by the action of the tides or current. Were this other- 
 wise the whole system of riparian rights would be over- 
 thrown and the riparian owners whose estates derive a 
 greater part of their value from the very fact that they bor- 
 der upon a water course would suffer hardship and injustice 
 
 llbid. Angell on Water-courses, vs. Coan, 4 Md, 439; 53 Am. Rep. 
 
 Sees. 53; Halsey vs. .McCormick, 219, and note. 
 
 18 N.Y., 147; Emans vs. Turnbull, ^2 Bla. Com. 261, 262; Emansvs 
 
 2 Johns., 314; Mulry vs. Norton, Tnrnbull, 2 Johns, N. Y.,314; An- 
 
 100 N. Y., 424; Cook vs. McClure, gell on Water-courses, Sec. 57,59; 
 
 58 N. Y., 437; L,ovington vs. St. Woodberry vs. Short, 17 Vt. 387. 
 
 Clair, 64 111, 56; 23 Wall., 68; 3 Mayor of New Orleans vs. U. 
 
 The legal meaning of the word S., 10 Peters, 661; Inre Hull & 
 
 "imperceptible" seems to have Selby Ry. Co., 5 M. & W., 327; 
 
 been settled in the case of King Foster vs. Wright, 4 C. P. D., 438; 
 
 vs. I/Ord Yardborough, 3 B. & Wilson vs. Shivley, 11 Oregon 215; 
 
 Cress, 91; S. C. 10 Eng. Com. Law, County of St. Clair vs. Livingston, 
 
 19; affirmed in the House of Lords, 23 Wall., 46; Chapman vs.IIaskins, 
 
 2 Bigh., N. S., 147; I Dow. N. S., 2 Md. Ch. 485; Giraudvs. Hughes, 
 
 176. That there is no distinction i Gill & J., 249; Berry vs. Snyder, 
 
 in this respect between soil gained 3 Bush., 266; femith vs. Public 
 
 by accretions and that uncovered Schools, 30 Mo., 290; Stevens vs. 
 
 by relictions, see Handly vs. An- Patterson Ry. Co., 34 N.J. L., 532; 
 
 thony, 5 Wheat, 380; Boorman vs. Betchel vs.Edgewater, 45Hun.24o. 
 
 Sunnuchs, 42 Wis, 233; Linthicum 4 Wilson vs. vShivley, ir Oregon, 
 
 215.
 
 132 COMMON LAW THEORIES. [§ 82, 83 
 
 by being deprived of all the rights belonging to them by vir- 
 tue of their situation through the action of the tides or cur- 
 rent working up a line of alluvion in front of their premises.^ 
 
 §83. Same — Fishery. — Among the rights of riparian 
 owners may be mentioned the right of fishing, and the general 
 rule is that in all navigable or non-navigable rivers where the 
 soil is held to be private property the riparian owners have the 
 exclusive right of fishing in the water opposite their lands.^ 
 And as the right of fishery is an incident to the ownership in 
 the lands bordering upon the w^ater-course, under the com- 
 mon law, and as such is a vested right, the owmer of the same 
 may maintain an action against any person who places 
 obstructions in the stream which prevent the free passage of 
 the fish up and dow^n the river. And the maintainance of 
 such structures in some States is held to be an indictable 
 offence.^ But the right to build dams for the use of irrigation 
 and mechanical purposes, under certain implied limitations, is 
 acknowledged. One of these limitations is to protect the enjoy- 
 ment of a fishery; and a dam must be so constructed that the 
 fish shall not be interrupted in their passage. Every owner of 
 a dam, therefore, holds it subject to the implied limitation 
 that a sufficient and reasonable passage-way shall be reserved 
 for the fish to pass up and down the stream. And as this limi- 
 tation is a public benefit it is not extinguished by any inatten- 
 tion or neglect in compelling the owner to comply with it.^ 
 
 1 Deerfield vs. Arms, 17 Pick, 41 ; Smith vs. Miller. 5 Mason, 191. 
 Cambre vs. Cohn, 8 N. vS., (La.) 3 Hamilton vs. Donegal!, 3 Ridge- 
 S76- Gould on Waters, Sec. 155- ^^^ ^^7; Woolrych on Waters, 189; 
 
 2 Hale De Jure Maris, Ch. i, 5; ^^ate vs. Franklin Falls Co., 49 N. 
 Angell on Water-Courses, Sees. H. 240; State vs. Roberts, 59 N. H. 
 61-70; Margrave's Law Tracts, 256; 256; Chase vs. Baker, 59 N. H. 3471 
 Gould on Waters, Sec. 182; 3 Kent ^ Well vs. Hornby, 7 East., 195; 
 Com. 409, 417; Royal Fishery of 3 Smith, 244, i BaU. Abs. 142; Prov. 
 the Baune, Davies, 149; Gould vs. Stat. 15 George III Ch. 6, which 
 James, 6 Cowan 369; Hart vs. Hill, provides that all persons who erect 
 I Whart. 124; People vs. Piatt, 17 or build a dam across any river or 
 Johns. N. Y. 195; Hooker vs. Cum- stream where the salmon, shad, 
 mings, 20 Johns. 90; Freary vs. alewives or other fish usually pass 
 Cooke' 14 Mass. 488; Common- up into the natural ponds, to cast 
 wealth vs. Chapin, 5 Pick. 199; their spawn, were required to 
 People vs. Piatt, 17 Johns. 195; make a sufficient passage-way for
 
 § 84]. COMMON LAW THEORIES. 133 
 
 § 84. Same — Authorities Discussed. — In the United States 
 the weight of authority holds that the right of fisher}-, as 
 well as the use of the water of a stream for mill purposes, is 
 the subject of private ownership, and both are vested rights 
 entitled to public protection and subject to legislative regula- 
 tion and control. As Mr. Justice Clifford, in delivering the 
 opinion of the Supreme Court of the United States in the case 
 of The Holyoke Water Power Co. vs. Lyman et al.,^ said: 
 " Evidently the right of fishery, as well as the right to use 
 the water of a stream for mill purposes, is the subject of 
 private ownership, and when held by a good title the one as 
 much as the other is a vested right, and both alike are entitled 
 to public protection, and are subject, in a certain sense, to 
 legislative regulation and control. Difficulties, in every case, 
 attend the proper adjustment of such rights, as the complete 
 enjoyment of the one may interfere with the corresponding 
 enjoyment of the other, but the presumption is, in construing 
 any regulation upon the subject, that the framers of the regu- 
 lation did not intend to allow either party to disregard the rule 
 that he should so use his own property as not to inj ure the 
 property of the owner of the other right. Ownership of 
 the banks and bed of the stream, as before remarked, gives 
 to the proprietor the exclusive right of fishery opposite his 
 land as well as the right to use the water to create power to 
 operate mills, but neither the one nor the other right, nor 
 both combined, confer any right to erect obstructions in the 
 river to prevent the free passage of the fish up and down the 
 river at their accustomed seasons, as such obstructions would 
 impair and ultimately destroy all such rights owned by the 
 other proprietors both above and below the obstruction on the 
 same stream. "^ And we will only add in this connection 
 
 the fish to pass up such river or Stoughton vs. Baker, 15 Mass. 522. 
 stream, and the owuers of a dam 1 15 Wall. 500. 
 so constructed that such fish could 2 See also Commonwealth vs. 
 not pass up the river or stream Chapin, 5 Pick. 199; Common- 
 were required to make such a wealth vs. Essex Co., 13 Gray, 247; 
 passage-way and keep it open for State vs. Stover, 42 N. J. L. 341; 
 a certain period in each year, as Doughty vs. Conover, 42 N. J. I,. 
 therein prescribed. See also Prov. 193. 
 Stat. 8 Ann Ch. 3, 162; Town of
 
 134 COMMON LAW THEORIES. [§ 84, 85, 86 
 
 that in this country the statute books of almost all of the 
 States show the solicitude of their respective legislatures to 
 preserve a free passage in the streams and rivers which flow 
 in the various States, and especially in those rivers which are 
 visited by fish from the ocean. 
 
 In nearly every State and Territory of the arid region are 
 statutory provisions which provide that the builders of dams 
 in any of the rivers and streams, for the purpose of diverting 
 water for irrigation or otherwise, shall construct suitable fish 
 wa3'S; and also provide that at the head of the ditch where 
 the water is diverted for the purpose of irrigation the owner 
 of such ditch or works shall cause to be constructed wire 
 screens to prevent the fish in the stream from going down the 
 ditch and thus being destroyed. 
 
 §85. Otlier Miscellaneous Riparian Rights.— There are 
 
 other rights which the proprietors of land bordering on water- 
 courses have by virtue of their ownership under the common 
 law theories, but they are either not in conflict with the 
 modern theory of the application of water for the purpose of 
 irrigating lands, and so will be fully discussed under their 
 proper heads when we come to that subject, or they are in no 
 way connected with that subject.^ 
 
 § 86. Lakes and Ponds, Property in. — The early English 
 authorities are indefinite respecting property in land covered 
 by lakes and ponds. As to riparian rights, it was first re- 
 garded as not necessary to determine whether the soil of lakes 
 and ponds, like that of fresh water rivers, prima facie belongs 
 to the owners of the land or of the manors on either side, ad 
 medium Jihim aquae, or whether it belongs ^rz>;m facie to the 
 King, by right of his prerogative.- But later it was laid down 
 
 1 Flowing Land, Gould on Pattinson, 2 Q. B. D, 263; Perry 
 Waters, Sec. 210. vs. Thornton, 23 L. R. Ir. 402; 
 2 Marshall vs. Ullswater Steam Hunt on Boundaries and Fences, 
 Nav. Co., 3 Best. & S. 732: Com. 19; Grey's Case Owen, 20; Pollen- 
 Dig. Prerogative (D. 50); Hale De fen vs. Crispin, i Vent. 122; Bell's 
 Jure Maris, Ch. i; Devonshire vs. Law of Scotland, 171.
 
 § 86, 87] 
 
 COMMON LAW THEORIES. 
 
 135 
 
 in the House of Lords, in the case of Bristow vs. Cormican, 
 that the Crown has no de jure right to the soil or fisheries of 
 an inland non-tidal lake, which rule has been followed by 
 other decisions.^ So, the law in England is settled that the 
 Crown and the public have no such rights in fresh water lakes 
 as the}' possess in water-courses subject to the ebb and flow of 
 the tide; that the owners of the land bordering upon the lake 
 or pond are the owners of the soil and the fisheries in them, 
 and that the public have no greater privileges in them than in 
 fi-esh water rivers.^ 
 
 § 87. Same.— Rule in tlie United States.— In the United 
 States our great navigable laljes, as well as our great navi- 
 gable rivers, are regarded as public propert}', and are not sus- 
 ceptible of private ownership any more than is the sea, but 
 the riparian owner's title extends to the edge of the water at 
 
 1 Bristow vs. Cormican, L. R. 3 
 App. Cas., 641; S. C. Ir. to C. L., 
 398; 2 L. R. Ir., 118. In this case 
 Lord Cairns, who was then Lord 
 Chancellor, said: "The Crown has 
 no de jiire right to the soil or fish- 
 eries of a lough like Lough Neagh. 
 Lough Neagh is, as your Lord- 
 ships are aware the longest inland 
 lake in the United Kingdom, and 
 one of the largest in Europe. It 
 is from fourteen to sixteen miles 
 long and from six to eight miles 
 broad. It contains nearly one 
 hundred thousand acres; but 
 though itis so large, lam not aware 
 of any rule which would pri)na 
 facie connect the soil or the fish- 
 eries with the crown, or discon- 
 nect them from the private own- 
 ership, either of riparian proprie- 
 tors or other persons." Lord 
 Blackburn said : " It is clearly and 
 uniformly laid down in our books, 
 that where the soil is covered by 
 the water forming a river in which 
 the tide does not flow, the soil 
 
 does of common right belong to 
 the owners of the adjoining land; 
 and there is no case, or book of 
 authority, to show that the crown 
 is of common right entitled to 
 land covered by water where 
 the water is not running-water 
 forming a river, l)ut still-water 
 forming a lake." * * * <<it is, 
 however, necessary to decide 
 whether the crown has of common 
 right a prima facie title to the 
 soil of a lake; I think it has not. 
 I know of no authority for saying 
 it has, and I see no reason why it 
 .should be." See also Bloomfield 
 vs. Johnson Ir. R. 8 C. L. 68. 
 
 2 See cases cited al)ove; as to the 
 right of the pul)lic to navigate 
 upon lakes. See Marshall vs. 
 Uleswater Steam Nav. Co., L. R. 
 7 Q. B., 166; Bloomfield vs. John- 
 son, Ir. R. 8 C. L. 68; Bristow vs. 
 Cormican, 3 App. Cas., 641; Ir. R. 
 10 C. L., 398; Mackenzie vs. Baker, 
 3 Ap. Cas. 1324.
 
 136 
 
 COMMON LAW THEORIES. 
 
 [§87 
 
 low watermark, and grants bounded by such waters extend to 
 that line.^ But upon the other hand, in this country a lake 
 or pond too small to be really useful for navigation, although 
 of considerable size as compared with other fresh water 
 streams, may be private prv)perty, and as such is subject to 
 the common law rules as to fresh water streams respecting the 
 ownership of the soil under tliem.^ This rule, however, 
 varies, especially in the Kastern States.^ But in the Western 
 States it is held that the owners of land bordering upon non- 
 navigable lakes or ponds situated within the original govern- 
 
 1 Champlain Ry Co. vs. Valen- 
 tine, 19 Barb. 484; Trustees vs. 
 Dennett, 9 N. Y. 669; Fletcher vs. 
 Phelps, 28 Vt. 257; Jakeway vs. 
 Barrett, 38 Vt. 316; Austin vs. Rut- 
 land Ry. Co., 45 Vt. 215; 17 Fed. 
 Rep. 466; Canal Coni'r's vs. People. 
 5 Wend. 423; Wheeler vs. Spinola, 
 54 N. Y. 377; People vs. Jones, 112 
 N. Y. 597; Mariner vs. Schulte, 13 
 Wis. 682; Wood vs. Kelly, 30 
 Maine. 47; Waterman vs. Johnson, 
 13 Pick 261; Ladd vs. Oshorn, 79 
 Iowa 93; Hardin vs. Jordon, 16 Fed. 
 Rep. 823; 140 U. S. 371, in which 
 the court held that by the com- 
 mon law, under a grant of lands 
 bounded by a lake or pond which 
 is not tide-water and is not navi- 
 gable, the grantee takes to the 
 center of the pond or lake, ratably 
 with other riparian proprietors, if 
 there be such; and this rule pre- 
 vailed in Illinois when the patent to 
 the plaintiff's ancestor was granted 
 in 1841 and is still the law of that 
 State. Packer vs. Bird, 137 U. vS. 
 366. 
 
 ^Ledyard vs. Ten Eyck, 36 Barb, 
 loi; Gouveneur vs. National Ice 
 Co., 57 Hun. 474; Atwood vs. Can- 
 andagua, 56 Hun. 293; Smith vs. 
 Rochester, 92 N. Y. 463; Cobb vs_ 
 Davenport, 32 N. J. 369. 
 
 3 In New York it is held that an 
 inland lake five miles long and 
 three-quarters of a luile wide, 
 which has no important inlet and 
 does not form a part of a chain of 
 connecting waters, is subject to 
 the common law rule as to fresh 
 water streams. Ledyard vs. Ten 
 Eyck, 36 Barb. loi. 
 
 As for the rule in Mass. see Com- 
 monwealth vs. Alger, 7 Cusli. 53; 
 West Roxbury vs. Stoddard, 7 Al- 
 len 158; Commonwealth vs. Tif- 
 fany, 119 Mass. 300; Tudor vs. Cam- 
 bridge W. Works, I Allen 164; 
 Commonwealth vs. Vincent, 108 
 Mass. 441; Fa 3^ vs. Salem Aque- 
 duct Co., Ill Mass. 27; Gould on 
 Waters, Sec. 84. 
 
 In Massachusetts, ponds of more 
 than twenty acres in area are 
 called great ponds, and as such are 
 owned by the State, as public 
 property held in trust for public 
 use. Watuppa Reservoir Co. vs 
 Fall River et al, 147 Mass. 48; Com- 
 monwealth vs. Tiffany, 119 Mass. 
 303; 12 Am. & Eng. Ency. of Law 
 
 634- 
 
 Brastow vs. Rockport, 77 Maine 
 100, in which the Court held that 
 in that State, all ponds containing 
 more than ten acres are public 
 ponds, and the right to cut ice
 
 § 87, 88]. COMMON LAW THEORIES. 137 
 
 ment surve3-s own the bed of the lake to its center, as in the 
 case of non-navigable streams.^ But if the lakes are large 
 and navigable the}- are public property, and the riparian own- 
 ers take onl)' to the water's edge.- 
 
 § 88. Same. — llipariaii Rights Concerniiiix— The riparian 
 rights of proprietors whose lands border upon lakes and nat- 
 ural ponds, as well as the ownership of the soil under the 
 same, do not appear to have been settled by the early English 
 authorities.-* 
 
 In the case of Paine vs. Woods, ^ Wells, J , said: "The 
 English books offer little light on this subject. * * * But 
 the question whether the title in the land under the fresh 
 water pond or lake is in the proprietor of the lands adjoining 
 or in the Crown does not seem to have been ever judicially 
 determined in England." But in this country, in general, we 
 may say that the same rules relative to riparian rights attach 
 to the ownershipof the soil bordering upon an inland lake or 
 pond as those which govern the ownership ot the banks 
 of streams or rivers regardless of the fact as to whether they 
 are navigable in fact or not, or whether the owners of the 
 bank are also owners of the soil under the water or not. This 
 is especially so concerning the particular uses and appropria- 
 tion of water by riparian owners. The weight of authority 
 seems to hold that riparian rights proper rest upon the title to 
 the bank of the lake, and not upon the title to the soil under 
 the water, and they are the same whether the riparian owner 
 
 upon them is a public right, free 336; S L. R. A. 578; Delaphine vs. 
 
 to all. In this particular, the Chicago Ry. Co., 42 Wis. 214; 
 
 owners of the shore have no Boorman vs. Summuchs, 42 Wis. 
 
 greater right than other persons 233; Deidrich vs. North Western 
 
 who can reach the pond without Ry. Co., 42 Wis. 248; 47 Wis. 662; 
 
 trespassing upon the lands of Olson vs. Merrill, 42 Wis. 203; 
 
 others. Clement vs. Burns, 43 N. Wright vs. Bay, 33 Wis. 260. 
 
 H. 621. iMichigan. Clute vs. I'isher, 65 
 
 iRidgewayvs. Ludlow, 58 Ind. Mich. 48. 
 
 148; Edwards vs. Agle, 76 Ind. 392; SQould on Waters, Sec. 82, 85. 
 
 vStoner vs. Rice, 121 Ind. 51; Vox- 3 Marshall vs. Ullswatcr Xaviga- 
 
 Byth vs. Smale, 7 Biss. 201. See tion Co., 3 B. & S. 732. 
 
 also Nye vs. Andrews, 47 Ohio St. -t 108 Mass. 160, 169.
 
 138 COMMON LAW THEORIES. [§ 88, 89 
 
 owns the soil under the water or not.^ So the owner of lands 
 upon a navigable lake has, as such, the exclusive right of ac- 
 cess to and from the lake in front of his land and the right to 
 construct there buildings, piers and wharfs not interfering 
 with the public easement of navigation .^ Also, if a lake, 
 whether navigable or not, recede gradually and insensibly the 
 derelict land belongs to the adjacent riparian proprietor. 
 The right of access is not lost by the gradual and impercept- 
 ible recession of the water, but the land gained by the relic- 
 tion belongs to the owner of the contiguous land to which the 
 addition is made.^ So, in general, we can say that every 
 owner of land abutting upon a natural inland lake or pond 
 has, like the owner of land bordering upon a river or stream; 
 a usufruct in the waters of the lake or pond, and has a com- 
 mon right with his neighbors to the natural flow of the water 
 in its accustomed place, without unnatural detention or sub- 
 stantial diminution in quantity or deterioration in qualit}^; 
 and none can make any use of it that shall in any way be 
 prejudicial to the other owners, unless he has acquired a right 
 to so use it by license, grant or prescription.^ 
 
 § 89. Public Gfrsmt.— In ancient times the crown could 
 grant to a subject the soil of the tide waters and also could 
 pass exclusive rights of fishery in such waters,-^ but in modern 
 
 1 Diedrich vs. N. W. Union Ry. 214; S. C. 24, Am. Rep. 386. 
 
 Co., 42 Wis. 248, where the Court 3 Murray vs. Sermon, i Hawks 
 
 held that distinguished from ap- (N. C.) 56; Gould on Waters, 2nd 
 
 propriation and occupation of the Edition, page 311, note one; 12 
 
 soil under the water a riparian Am. & Eng. Enc. of Law, 651; 
 
 owner upon navigable water, Warren vs. Chambers, 25 Ark. 120; 
 
 whether or not he owns the soil C. S. 4 Am. Rep. 23; Banks vs. 
 
 to the thread of the river or stream, Ogden, 2 Wall. 57. 
 
 has a right (unless prohibited by 4 Smith vs. Cit\- of Rochester, 92 
 
 local law) to construct in shoal N. Y. 463. 
 
 water, in front of his land, proper 5 Williams vs. Wilcox, 8 Ad. & 
 
 wharves in aid of navigation. Ed. 314; Rex vs. Westham, loMod. 
 
 Delaphine vs. Railway Co., 42 159; Rex vs. Bristol Dock Co., 6 B. 
 
 Wis., 214; Chapman vs. Oshkosh & C, 181; Lord Fitzwalters Case, 
 
 & M. R. Co., 2,3 Wis., 629; Lyon i Mod. 105; Carter vs. Murcot, 4 
 
 vs. Fishmonger Co., L. R. i Ap- Burr. 2162; Rex vs. Clark, 12 Mod, 
 
 peal Cas. 662. As to definition of 615; Hale De Jure Maris, Ch. 5; 
 
 riparian rights see ante sec. 57. Colchester vs. Brooke, 7 Q. B. 339. 
 
 2 Delaphine vs. Ry. Co., 42 Wis.
 
 § 89]. COMMON LAW THEORIES. 139 
 
 times it has been decided in England that it is incompetent 
 for the crown to abridge or destro}- by its own act the public 
 rights either of navigation or fisher}-, as it can not confer 
 upon its grantee a greater power in this respect than that 
 with which it itself is invested.^ And in general, we may 
 sa}', that in this country the Federal Government and the 
 several States have followed the earlier common law decisons 
 of England in this respect: that the State maj'^ grant to individ- 
 uals or corporations the soil of public navigable waters or the 
 exclusive right of fisher}^ in them,- subject, of course, to the 
 public right of navigation. 
 
 As respects private water-courses, as we have seen in 
 the previous sections, riparian proprietors who own the soil 
 bordering upon the same have all the rights that attach to 
 such ownership and which are under the common law called 
 riparian rights. So, in that part of this country designated 
 as public lands the United States, as the proprietors of such 
 lands, has the same rights and propert}- in the streams flow- 
 ing through them that would be possessed by any other ripa- 
 rian proprietor. And in the absence of legislation by 
 Congress limiting the effect of the grant patents for public 
 lands from the General Government pass, together with the 
 fee of the soil and as incident thereto, all of the common law 
 rights of the natural streams which flow through them.^ But 
 in case of legislation by Congress all acts limiting the efiect 
 of the grant are in the nature of a reservation by the govern- 
 ment, and the patents issued thereafter must be subject to 
 them, as in the case of the act of Congress of July, 26th, 
 1866. ■* In this country a grant by a State conveying a 
 
 li Bla. Com. 286; Doe vs. York, People vs. Thompson, 30 Hun. 457; 
 
 14 Q. B. 81; 37 and 38 Vict. Ch.40; Middleton vs. Prichard, 3 Scam. 
 
 Vyner vs. Mersey Docks, 14 C. B. (111.) 510. 
 
 N. S. 758; Gould on Waters, .Sec. 3 Union Mill Co. vs. Ferris, 2 
 
 21 and notes, also Sec. 167. Sawyer, 176; Woodruff vs. N. 
 
 SCommonvvealth vs. Alger, 7 Bloomfield G. M. Co., 8 Sawyer, 
 
 Cush. 53; Arnold vs. Mundy, i 628, 9 Id. 441 : Mathews vs. Ferrea, 
 
 Hoist, i; Bell vs. Gough, 23 N. J. 45 Cal. 51. 
 
 Iv. 624; Attorney Gen. vs. Dela- -lU. vS. Rev. Stat. Sec. 2339, 
 
 ware Ry. Co., 27 N.J. I'<q. i, 631; which reads as follows: " When- 
 
 Galveston vs. Menard, 23 Tex. 349; ever, by priority of possession
 
 140 
 
 COMMON LAW THEORIES. 
 
 [§ 89, 90 
 
 tract of territory, in the absence of legislation reserving any 
 portion to the contrary, carries with it to the grantee a right of 
 property in all the water-courses within the boundaries of the 
 grant, and hence all the riparian rights that attach to those 
 water-courses as an incident to the soil.^ 
 
 § 90. Private Grants. — In this country when an individual 
 has once acquired an ownership in a water-course, as an inci- 
 dent to his land adjoining the same, by a grant from the State, 
 an individual, or from any other source, he may in turn con- 
 vey his ownership to another, in whole or in part. He may 
 convey all or a part of his riparian rights, and his grantee will 
 take all the title and rights that the grantor himself had and 
 which had been conveyed to him, but of course no more. 
 Such owners may convey the riparian rights in the stream to 
 
 rights to the use of water for 
 mining, agricultural, manufact- 
 uring, or other purposes, have 
 vested and accrued, and the same 
 are recognized and acknowledged 
 by the local customs, laws, and de- 
 cisions 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 purpose aforesaid is 
 hereby acknowledged and con- 
 firmed." 
 
 See also Basey vs. Gallagher, 20 
 Wall 670; Atchison vs. Peterson, 
 20 Wall 507; Jennison vs. Kirk, 98 
 U. S. 453, 462; Mining Co. vs. Tar- 
 bet, 98 Id. 463; Thorp, vs. Freed., 
 I Mon. 651. 
 
 The effect of this statute is to 
 preserve the priority against those 
 who have received patents to their 
 lands, subsequent to the enact- 
 ment. 
 
 See on this point Union Mill Co. 
 vs. Ferris, 2 Sawyer 176; Hobert 
 vs. Ford , 6 Nev. 77; Shoemaker vs. 
 
 Hatch, 13 Nev. 261 ; Rivers vs. Bur- 
 bank, i3Nev. 398; James vs. Adams, 
 19 Nev. 78; Broder vs. NatomaW. &. 
 M. Co., 50 Cal. 821; loi U. S. 274; 
 Landsdale vs. Daniels, 100 U. S. 
 iiS; Titcomb vs. Kirk, 51 Col. 288; 
 Cave vs. Crafts, 53 Cal. 135. 
 
 ILunt vs. Holland, 14 Mass. 149; 
 Middleton vs. Prichard, 3 Scam. 
 (111.) 520; Canal Com's vs. People, 
 5 Wend. 423; People vs. Canal Ap- 
 praisers, 13 Wend. 355; Rogers vs. 
 Jones, I Wend. 255; Coovert vs. 
 O' Conors, 8 Watt. 470, where the 
 court held that a grant from the 
 commonwealth of vacant land 
 bounded by a stream which has 
 not been declared navigable by 
 law, and following its courses and 
 distances, passes the right to the 
 soil to the middle of the stream, 
 and although the stream may sub- 
 sequently to the grant be declared 
 a public highway that does not 
 divest the property previously ac- 
 quired by a grant from the com- 
 monwealth.
 
 § 90, 91]. COMMON LAW THEORIES. 141 
 
 one person and the adjoining land to another; or he may- 
 reserve certain of his rights in the stream; or he may convey 
 the land, without making any reservation in the deed, to his 
 grantee, who, in that case, would be the riparian proprietor 
 in the grantor's stead, and would own to the middle of the 
 stream and be entitled to all the riparian rights that are 
 attached to the land.^ But it has been held that a grant of a 
 stream by that name will not pass the land over which the 
 water runs. It must be described as so much land covered 
 by water. ^ Also an owner, by a reservation in the instrument 
 of conveyance directly expressed or clearl}'- implied to such 
 effect, may grant the land adjoining the water-course and 
 may reserve to himself all the property in the water-course 
 itself and all the rights attached thereto b}^ virtue of his for- 
 mer ownership in the land adjoining. In the absence of such 
 words limiting the grant the bed, and consequently the 
 stream, and all of his riparian rights formerly attached thereto 
 pass by the conveyance.'^ 
 
 § 91. Same. — Continued. — A grant or reservation in a con- 
 veyance ma}^ also be a certain quantity of water; as much, for 
 instance, as would pass through a sluice-wa}^ or a flood-gate 
 of certain dimensions; or it may be of a certain extent of water- 
 power, as is required to operate certain specific machinery. 
 And the authorities hold that there is an obvious and impor- 
 tant distinction between the grant of a certain use of the water 
 and the water itself.^ The grantee may be limited by the terms 
 of the deed in the application of the water to a certain par- 
 ticular use. The words in the indenture, the situation of the 
 
 1 Den vs. Wright, i Peters, (Cir. Kenned)', 5 II. & Johns. (Md.) 195; 
 Ct.) 64; Strong vs. Benedict, 5 Gavit's Administrators vs. Cham- 
 Conn. 221; Ashley vs. Pease, 18 bers, 3 Ohio, 495. In regard to 
 Pick. 268; Biglow vs. Battle, 15 reservations in grants, see Angell 
 Mass. 313. on water-courses. Sec. 173-190. 
 
 2jackson vs. Halstead, 5 Cow. 4 gx parte Miller, 3 Hill, 418; 
 
 216. Bardwell vs. Ames, 22 Pick. 333; 
 
 SClaremont vs. Carlton, 2 N. II. Boston Water Power Co. vs. Gray, 
 
 371; Hay's Executor vs. Bowman, 6 Met. 131; Kennedy vs. Scovil, 12 
 
 I Rand. (Va.) 420; Waterman vs. Conn. 317. 
 Johnson, 3 Pick. 261; Brown vs.
 
 142 
 
 COMMON LAAV THEORIES. 
 
 [§91 
 
 parties, the uncertaint}^ as to the quantity of the water gran ted j 
 and the usage by the grantee, may all be introduced in evi- 
 dence as tending to show that it was intended to limit the 
 quantity to the particular use for which it was granted and 
 originally intended to be applied.^ In general we may say 
 that the right to the use of the water-course, ex jure naturae, 
 or as an incident to the land, under the common law, is sub- 
 ject to be abridged, enlarged or modified b}^ grant. But the 
 extent of such abridgement, enlargement or modification is to 
 be measured by the express stipulation contained in the grant 
 or instrument of conveyance itself.^ These special rights that 
 may be acquired in water-courses sometimes approach those 
 rights which are classified by law-writers as easements, and 
 can only be created hy deed;^ and when so created the grantor 
 can not derogate from the terms of the deed, and the nature 
 and extent of the rights of the parties can only be determined 
 by the terms of the instrument of conveyance itself.^ 
 
 1 Strong vs. Benedict, 5 Conn. 
 221; Livingston vs. Ten Broeck, 16 
 John. 14; Biglow vs. Battle, 15 
 Mass. 313; Luttrel's Case, 4 Coke, 
 86; Robert May's Case, 9 Coke, 
 113; Howell vs. King, i Mod. 190; 
 Lawton vs. Ward, i Lord Ra^-- 
 mond, 75; Spragiie vs. Snow, 4 
 Pick. 54. 
 
 2 On general subject see Angell 
 on Water courses, Cliap. V; Gould 
 on Waters, Chap. X. 
 
 3 Coke Litt. 9 A; Hawlins vs. 
 Shippam, 5 B. & C. 221; 11 Eng. 
 Com. L. 207; Crocker vs. Cowper, 
 
 I C. M. & R. 418; Cook vs. Sterns, 
 
 II Mass. 533; Williams vs. Wads- 
 worth, 51 Conn. 277; Nellis vs. 
 Munsou, 108 N. Y. 453; 24 Hun. 
 575; Wright vs. Newton, 130 Mass. 
 552; Dority vs. Dunning, 78 Me. 
 381; Wilder vs. Wheeler, 60 N. H. 
 351; Jones vs. Pettibone, 2 Wis. 
 308; Peasley vs. Tower, 62 N. H. 
 432; Warren vs. Carey, 45 Mass. 78. 
 
 4Northam vs. Hurley, i E. & B. 
 665; 72 Eng. Com. L. 663; White- 
 head vs. Parks, 2 H. & N. 878; 
 Sharp vs. Waterhouse, 7 E. & B. 
 816; Tipping vs. Eckersley, 2 K. 
 & J. 273; Risien vs. Brown, 73 
 Texas 135, where it was held that: 
 an owner of a tract of land upon 
 and through which a stream of 
 water rises and flows, in selling 
 parts of the tract fronting upon 
 the stream, may reserve exclusive 
 water privileges, and when in 
 selling the residue of the tract he 
 sells the land and especially con- 
 veys the water privileges thereto- 
 fore reserved such grantee holds 
 such privileges as against another 
 vendee holding a part of the tract 
 upon the stream, but in whose 
 deed the water privileges were re- 
 served. 
 
 Wood vs. Saunders, L. R. 10 
 Ch. 582; Finlinson vs. Porter, L. 
 R. 10 Q. B. 188; United Land Co.
 
 § 92.] COMMOX LAW THEORIES. 143 
 
 § 92. Prescription. — It is laid down by the earlier English 
 authorities, that all incorporeal rights ma\' be acquired by 
 acquiescence and use and lost by neglect and disuse, and that 
 a right to any hereditament may be acquired by lapse of time.^ 
 This method of acquisition has been denominated by both the 
 common law writers and civilians. " Prescription." And a 
 fiction was indulged in by the authorities in this, that every 
 prescription supposes a grant once made and afterwards lost.^ 
 Under the early rule of the common law an enjoyment to con- 
 fer atitle by prescription to an easement of the use of water 
 must have continued in legal phrase, "during the time 
 whereof the memorj^ of man runneth not to the contrary." 
 But the modern rule, both in this countr}' and England, has 
 been limited to the period of twenty j^ears, because of the 
 extreme difficulty of giving proof of enjoying for so long a 
 time as that laid down b}^ the English law writers.^ But it 
 has for a long time been settled that the owner of land upon 
 the margin of a natural stream may by long continued user 
 acquire a right to use the water in excess of and not justified 
 by his natural riparian rights. ^ Long enjoyment of an ease- 
 ment establishes a right to the use of the water, or in other 
 words to the easement itself, but it does not effect the owner- 
 ship of the soil under the water. ^ The doctrine that ease- 
 ments of every sort may be acquired by an adverse user for the 
 period of time limited by the statute of limitations for the 
 
 vs. Great Eastern Ry. Co., L. R. vs. Rand, 2 Brad. & Bing 667; 
 
 10 Chan. 586; Collins vs. Slade, 23 Cross vs. Lewis, 2 B. & Cress. 686; 
 
 W. & R. 199; Gould on Waters, Mason vs. Hill, Barn & Add. 76; 
 
 Chapter X. Ricard vs. Williams, 7 Wheat. 59; 
 
 iBracton L. 4. Coolidge vs. Leanned, 8 Pick. 504; 
 
 2 1 Bla. Com. 75; 2 lb. 263. Sargent vs. Ballard, 9 Pick. 251; 
 
 3 Gould on Waters, Chap. XI ; Melvin vs. Whiting, 10 Pick. 295; 
 Angell on Water-courses, Chap. VI Barnes vs. Haynes, 13 Grey 188; 
 
 4 Darwin vs. Upton, 2 Wnis. Shumway vs. Simons, i Vt. 53; 
 Saund. 175; Holcraft vs. Heel, i Wakins vs. Peck, 13 N. H. 360; 
 Bos. & Pul. 400; Campbell vs. Townsend vs. McDonald, 12 N. Y. 
 Wilson, 3 East, 294; Daniels vs. 381. 
 
 North, II East, 371; Bealy vs. 6 Schuylkill Nav. Co. vs. Stover, 
 
 Shaw, 6 East, 208; Balston vs. 2 Grand Cas. 462; Keyser vs. 
 
 Bensted, i Camp. 463; Barker vs. Covell, 62 N. H. 283. 
 Richardson, 4 B. & Aid. 578; Gray
 
 144 
 
 COMMON LAW THEORIES. 
 
 [ § 92, 93 
 
 right of entry upon land, has been adopted and very frequently 
 applied by the Supreme Court of the United States. ^ The enjoy- 
 ment and exercise of the use must be continuous,^ notorious^ 
 and under a claim of right, with the knowledge of the owner, ^ 
 and adverse, in the exact sense that the possession of the land 
 must be so as to warrant the application of the statute of lim- 
 itations in an action of ejectment.'^ 
 
 § 93. License. — There is another means by which a person 
 can acquire the use of water in excess of that which naturally 
 belongs to him by virtue of his ownership in the land adjoin- 
 ing the stream, and that is by license. License is a permis- 
 sion to do a certain act or series of acts upon another's land 
 without possessing any estate therein;^ and it may be given 
 in writing, or in some cases verbally, notwithstanding the 
 statute of frauds." As for instance the privilege of floating 
 timber down a private stream, which does not involve the oc- 
 
 1 Bowman vs.Wathen, i How. 189. 
 
 2Boliver Mfg. Co. vs. Neponset 
 Mfg. Co., 16 Pick. 241; Cowell vs. 
 Thayer, 5 Met. 257; Davis vs. 
 Brigham, 29, Maine, 391; Kent vs. 
 Waite, 10 Pick. 138; Branch vs. 
 Doane, 17 Conn. 402; 18 Conn. 233; 
 Durgin vs. Leighton, 10 Mass. 56; 
 
 SGifford vs. Winnipesseogee 
 Lake Co., 52 N. H. 262; Solo- 
 mon vs. Vintner's Co., 4 H. & N. 
 602; O'Neil vs. Blodgett, 53 Vt. 
 213; Emor}^ vs. Raleigh Ry. Co., 
 102 N. C. 209. 
 
 4Livett vs. Wilson, 3 Bing. 115; 
 Flora vs. Corbean, 38 N. Y. iii; 
 Smith vs. Miller, 11 Gray, 145. 
 
 5Colvinvs. Burnet, 17 Wend. 562; 
 Hart vs. Vose, 19 Wend. 365; Dyer 
 vs. Depui, 5 Whart. (Pa.) 584. 
 
 ^Bouvier's Law Dictionary; An- 
 gell on Water-courses, Sec. 285; 
 Gould on Waters, Sec. 322; 3 Kent 
 Com. 452; Miller vs Auburn & 
 Syr. Ry. Co., 6 Hill N. Y. 61. 
 
 73 Kent Com. 452; Taylor vs. 
 
 Waters, 7 Taunt. 384; Wood vs. 
 Leadbetter, 13 M. & Welsh. 843; 
 Murrell vs. Mackman, 24 Mich. 
 279, where the court held that a 
 license is a permission to do some 
 act or series of acts on the land of 
 the licensor, without having any 
 permanent interest in it. It is 
 founded on personal confidence, 
 and is therefore not assignable. It 
 may be in writing or by parol; it 
 may be without consideration ; it 
 is subject to revocation and is not 
 within the statute of frauds. 
 
 Wetmarsh vs. Walker, i Met. 313; 
 Maxwell vs. Bay City B. Co., 41 
 Mich. 454; Fentiman vs. Smith, 4 
 Fad. 107; Cook vs. C. B. & Q. Ry. 
 Co., 4 Iowa 451; Beaver vs. Reed, 
 9 O. B., (Can.) 152; Rerick vs. 
 Kern, 14 vSerg. & R. 267; 16 Am. 
 Dec. 497; Ricker vs. Kelly, i 
 Green'l, 117; 10 Am. Dec. 38; 
 Chicago City Ry. Co. vs. People, 
 73 111. 541.
 
 § 93, 94]. COMMON LAW THEORIES. 145 
 
 cupation of the land or diversion of the water into a new chan- 
 nel.^ But in case it does involve the occupation of the land 
 for any purpose it must be in writing. ^ A parol license which 
 has not been executed in whole or in part may be revoked al- 
 though a consideration for it has been paid; and it terminates 
 with the death of the licensor.'^ But, on the other hand, if a 
 license under the authority of a parol license, for a considera- 
 tion, makes large investments for the enjoyment of some privi- 
 lege the licensor will be estopped from making a revocation.^ 
 
 § 94. Eiuiiieut Domain. — Eminent Domain is the right which 
 the government retains over the estates of individuals to ap- 
 propriate them to the public use. This right of the State is 
 universally acknowledged. But it is a rule founded in equity 
 and is laid down by jurists, as also an acknowledged principle 
 of universal law, that no estate can be condemned for this 
 purpose without just compensation to the owner thereof. The 
 right to a water-course is a freehold right and a right of which 
 no man can be deprived but by a lawful judgment of his peers 
 or b}^ due process of law. That the State has power to appro- 
 priate a water-course to public use is indisputable; but to ren- 
 der the exercise of this power valid a full compensation must 
 
 1 Rhodes vs. Otis, 33 Ala. 578; Purcell, i Dev. & Bat. 492; Gould 
 Pursell vs. Stover, no Pa. 43. on Waters, Sec. 324. 
 
 2 Morrill vs. Mackman, 24 Mich. 4 Lane vs. Miller, 27 Ind. 524; 
 279; Banghart vs. Flummerfelt, 43 Raritan Water Power Co. vs. 
 N.J. L. 28. Veghte, 21 N. J. Eq. 463, where 
 
 ^Beidelman vs. P^oulk, 5 Watts, the Court held upon the subject 
 308; Dark vs. Johnson, 55 Pa. 164, of revocation: that if the consent 
 where it was held that: generally was a fact, however obtained, and 
 a parol license is revocable at the permanent works and iniprove- 
 will of the licensor; and it is re- nients erected in pursuance there- 
 vocable although a consideration of at great expense, equity will 
 has been paid for it. not, to the extent that the license 
 
 Owen vs. Field, 12 Allen, 457; is executed, disturb it or permit 
 
 Hewlins vs. Shippan, 5 B. & C. its revocation. 
 
 22; Bryant vs. Whistler, 8 B. & C. Hall vs. Chaffee, 13 Vt. 150; 
 
 288; Totel vs. Bonnefoy, 123 111. Foot vs. New Haven, 23 Conn. 214; 
 
 653; 23 111. App. 55; Taylor vs. Morse vs. Copeland, 2 Gray, 302. 
 Gerrish, 59 N. H. 569; Bridges vs.
 
 146 
 
 COMMON LAW THEORIES. 
 
 [§94 
 
 be made to the individuals affected by the appropriation.^ 
 And for the protection of this right the fifth article of the 
 amendments to the Constitution of the United States, " nor 
 shall private property- be taken for public use without just 
 compensation" was added. And a similar article may be 
 found in the Constitutions and Bills of Rights of the several 
 States. But with all questions of this nature the final de- 
 cision rests with the Courts in determining whether the ap- 
 propriation has any element of public utility.^ 
 
 The use is public when it promotes the interest of a con- 
 siderable portion of the community, although it may not bene- 
 fit the community at large. =^ But lands or rights to waters 
 cannot be taken for a purely private purpose without regard 
 to the public good, although compensation is made or ten- 
 dered.'^ So, as we have said before, under the common law 
 
 lUuited States vs. Jones, 109 U. 
 S. 406, where the Supreme Court 
 held that: The power to take 
 private property for public uses, 
 generally termed the right of 
 eminent domain, belongs to every 
 independent government. It is 
 an incident of sovereignty, and 
 requires no constitutional recog- 
 nition. The provision found in 
 the Fifth Amendment to the Fed- 
 eral Constitution and in the Con- 
 stitution of the several States for 
 just compensation for the prop- 
 erty taken is merely a limitation 
 upon the use of the power. 
 
 See also i Bla. Com. 139; Boom 
 vs. Patterson, 98 U. S. 406; Varick 
 vs. Smith, 5 Paige 137; Spring vs. 
 Russell, 7 Maine, 273; Dey vs. 
 Stetson, 8 Maine, 365; Lombard 
 vs. Starns, 4 Cook, 60; Gould on 
 Waters, Chapter VIII; Vattel Ch. 
 20 S. 244. 
 
 SSecombe vs. Ry. Co., 23 Wall. 
 108; Talbott vs. Hudson, 16 Gray 
 417; Lowell vs. Boston, iii Mass. 
 454; Carter vs. Tide Water Co., 18 
 
 N. J. Eq. 54; Booth vs. Woodbury, 
 32 Conn. 118; Allen vs. Joy, 60 
 Maine, 124; Varick vs. Smith, 5 
 Paige, 137; 9 Paige 547; Harris vs. 
 Thompson, 9 Barb. 350; Bloodgood 
 vs. Mohawk Ry. Co., 18 Wend. 56. 
 
 SWyland vs. Middlesex, 4 Gray, 
 500; Boston Water Power Co. vs. 
 Boston Ry. Co., 16 Pick. 512; Red- 
 dell vs. Bryan, 14 Md. 444; Graff 
 vs. Baltimore, 10 Md. 544; Tide 
 Water Co. vs. Coster, 18 N. J. Eq. 
 518; Hagar vs. Reclamation Dis- 
 trict, III U. S. 701; Foster vs. Park 
 Commissioners, 133 Mass. 321; 
 Wurts vs. Hoagland, 114 U. S. 606. 
 
 ■iFlemming vs. Hull, 73 Iowa 
 598; Embury vs. Conner, 3 N. Y. 
 511; State vs. Driggs Drainage Co., 
 45 N. J. L. 91; Re Niagara Falls 
 Ry Co., 108 N. Y. 375; Lorenz vs. 
 Jacob 63 Cal. 73, where the Court 
 held that the right of eminent do- 
 main is restricted to the taking of 
 private property for public use. 
 It can not be exercised in favor of 
 the owners of mining claims to 
 enable them to obtain water for
 
 §9^J- 
 
 COMMOX LAW THEORIES. 
 
 147 
 
 rules the riparian rights of the owners of land bordering upon 
 the same water-course are equal, and the State, although pos- 
 sessing an almost unlimited power of appropriating property 
 by virtue of its right of eminent domain as far as public pur- 
 poses are concerned, can not give any more extensive or ex- 
 clusive rights to one proprietor, under the color of a public 
 
 their own use in working such 
 claims, though the intention may 
 be also to supply water to others 
 
 for mining and irrigating pur- 
 poses, and Mr. Chief Justice 
 Morris said: " The findings are in- 
 sufficient to show that the use for 
 which the water was intended was 
 public use, and it clearly appears 
 from the evidence that the main 
 and substantial object of plaintiffs 
 is to use the water in working their 
 own mining claims. Private prop- 
 erty can not be taken for such a 
 purpose." 
 
 See the Wilmington Canal and 
 Reservoir Co. vs. Dominguez, 50 
 Cal. 505; Cummings vs. Peters, 56 
 Cal. 593; Bankhead vs. Brown, 25 
 Iowa, 540; Liskeard Union vs. 
 Liskeard Water Co. 7 Q. B. 505. 
 See also San Diego L. & T. Co. vs. 
 Neale, 88 Cal. 50; and Spring Val- 
 ley W. W. vs. Drinkhouse, 92 Cal. 
 528, where it is held that under 
 Sections 1238 and 1239 of the Code 
 of Civil Procedure a corporation 
 organized and existing under the 
 laws of the United States for the 
 purpose of supplying the inhabi- 
 tants of an incorporated city with 
 water may exercise the right of 
 eminent domain for the acquisi- 
 tion of land as part of a reservoir 
 site which is claimed by the cor- 
 poration to be necessary for it in 
 the prosecution of the business for 
 which it was created; also before 
 land can be taken for a puldic use 
 
 it must appear that the taking is 
 necessary for such use, and such 
 necessity is a question of fact to 
 be determined by the Court or 
 jury, in view of all the evidence 
 in the case, the burden of proof 
 being upon the corporation seek- 
 ing the condemnation to show that 
 the land is reasonably required for 
 the purpose of effecting the object 
 or carrying on the business for 
 which the corporation was organ- 
 ized; also that in determining 
 whether land is reasonably re- 
 quired for a reservoir site by a 
 water compau)- organized to sup- 
 ply a city with water, not only the 
 present demands of the public 
 upon the water company but 
 those which may be fairly antici- 
 pated on account of the future 
 growth of the city are to be con- 
 sidered. 
 
 But see the case of Aliso Water 
 Co. vs. Baker, 95 Cal. 268; where 
 the Court held that: In an action 
 by a water company to condemn 
 water rights and a strip of land a 
 complaint which alleges that it is 
 necessary to condemn and take 
 the water rights in order to carry 
 out the purpose of the water com- 
 pau)' to supply a " farming neigh- 
 borhood," composed of land rip- 
 arian to the creek with water for 
 domestic use and irrigation, but 
 which does not otherwise show 
 whether the "farming neighbor- 
 hood" is inhabited, not only fails
 
 148 COMMON LAW THEORIES. [§ 94, 95 
 
 use, than it can give to all of the proprietors who are equally 
 interested in the same stream.^ 
 
 § 95. Summary. — In summing up this chapter we will say- 
 that under the. common law doctrine in its most general form 
 all property in water-courses and inland lakes, whether the 
 same are actually navigable or not, is held sacred to the com- 
 mon use alike of all the riparian owners upon their borders, 
 as an incident to their ownership of the soil; that the nature 
 of their ownership of the water itself is simpl}' usufructuary^ 
 and that each proprietor may reasonably use the water for any 
 purpose as it passes through or bj^ his land; but always pro- 
 vided that he must, after having used it, return it without 
 substantial diminution in quantity or any material change in 
 quality to its natural bed or channel before it leaves his own 
 land, so that it will reach his neighbor below in its full^ 
 original and natural condition. We have also seen that the 
 natural current of a stream must neither be obstructed nor 
 accelerated by any proprietor; that a riparian proprietor is 
 entitled to all accretions and relictions that may be added to 
 his lands caused by the influence of the winds or tides, and 
 thus always giving him right of access to and from his estate 
 to the water, or to and from the water to his estate; that he 
 also has the exclusive right of fishery opposite his land, and 
 no one can erect any obstruction in the stream that shall bar 
 him from that right. Also, under the common law, no pri- 
 ority of use or appropriation by any one proprietor can give 
 
 to show that the use for wtiich con- in an action to condemn water 
 demnation is sought is a public rights which describes them gen- 
 use, but shows affirmatively that erally as all the rights of each of 
 it is not; and also the term the defendants, whether as ripa- 
 " neighborhood " is an indefinite rian owners or acquired by appro- 
 phrase and may consist of but two priation, adverse use, or prescrip- 
 houses upon a single farm; and as tion, except for domestic use and 
 the pleading must be construed reasonable use of their riparian 
 most strongly against the pleader lands, is uncertain in not showing 
 it must be understood that the definitely what water rights are 
 farming neighborhood to be bene- proposed to be condemned, and is 
 fitted consists of one farm only, insufficient as against a special 
 and this the propert}' of the plain- demurrer, 
 tiff; and also where a complaint i See cases cited above.
 
 § 95]. COMMON LAW THEORIES. 149 
 
 him any higher or more extensive rights than those which 
 belong to all the other proprietors, either higher up or lower 
 down on the stream: and, although some of them may have 
 come long after the first proprietor settled upon the stream, all 
 the proprietors who are interested in the stream must share in 
 its use equally; and if one proprietor acquires more extensive 
 rights than those mentioned, against the other riparian pro- 
 prietors, he must do so by obtaining a grant or license from 
 all who are effected thereby, or by prescription, which pre- 
 supposes a grant. And lastly, we have seen that the State, 
 by virtue of its right of eminent domain, can not take, injure 
 or impair any of these rights in and to the use of the waters 
 of the stream of any riparian proprietor without due compen- 
 sation therefor and then only when it is for some public use 
 or benefit.
 
 CHAPTER IV. 
 Tlie Arid Region Doctrine. 
 
 Sections. — 
 
 96. Nature and extent of sub- 
 
 ject treated in chapter. 
 
 97. Cause of the change. 
 
 98. Same. — Common law inap- 
 
 plicable to the Arid Region. 
 
 99. Same. — Authorities. 
 100. History of change. 
 loi. Same. — Continued. 
 
 102. Same. — Mining Rules and 
 
 Customs. 
 
 103. Same. — First legislation upon 
 
 the subject, by State. 
 
 104. Same. — Early court decisions 
 
 105. Same. — Continued. 
 
 106. Decisions favoring doctrine 
 
 — Irvin vs. Phillips. 
 
 107. Same. — Bear River, etc.. Wa- 
 
 ter Co. vs. N. Y. Mining Co. 
 
 108. Same. — Clough vs. Wing. 
 
 109. Decisions of principle based 
 upon doctrine of presumption. 
 
 no. Same. — Continued — Conger 
 vs. Weaver. 
 
 111. Appropriation as against the 
 
 United States. 
 
 112. Appropriation prior to patent 
 
 isstied before Act of 1866. 
 
 113. The Act of Congress of July 
 
 26th, 1866. 
 
 114. Same. — Continued — Cause of 
 
 passage of Act. 
 
 115. Legal effect of the Act. 
 
 116. Same. — Act of Congress of 
 
 July 9th, 1870. 
 
 117. Same. — Construction of Act 
 
 of 1870. 
 
 118. Acts of Congress subsequent 
 
 to 1870. 
 
 119. Same. — Acts of March 3d, 
 
 1891. 
 
 120. Same. — Acts of Congress of 
 
 1889 and 1890. 
 
 121. Future Acts of Congress on 
 
 the subject. 
 
 122. Summary. 
 
 § 96. Nature and Extent of Subject Treated in Ciiapter. — 
 
 In the preceding chapter we have seen that under the com- 
 mon law doctrine, as decided by the general consensus of En- 
 glish and American decisions, the rights of riparian proprie- 
 tors in the use of water of running streams and inland lakes 
 were superior and paramount to the rights of others, by virtue 
 of their right being an incident to their ownership of the land 
 bordering upon the stream and arising ex jure naturae. Also
 
 § 96, 97]. ARID REGION DOCTRINE. 151 
 
 that these rights of the riparian proprietor existed whether 
 they chose to exercise them or not, to the exclusion of all 
 others desiring to exercise them; that these rights did not de- 
 pend upon occupanc}', and were not limited by the prior occu- 
 pation of others not amounting to an adverse enjoyment by 
 prescription, but that the rights of all of the proprietors upon a 
 stream were equal, and each one being entitled to a reasonable 
 use of the stream, provided that he did not injure any of his 
 neighbor's rights in and to the same, and that it was wholly 
 immaterial as to who is first in time. 
 
 But ever since that section of this country located west of 
 the looth meridian, and known as the "Arid Region," first 
 began to be peopled by the Anglo-Saxon race, following at first 
 mining as an occupation, and afterwards with increasing num- 
 bers settling down to agricultural and mechanical industries, 
 a great change from the old common law theories has been 
 gradually taking place, until to-day in some of the States and 
 Territories formed out of the "Arid Region" the common law 
 theories upon the subject of waters are absolutely abolished, 
 in others ignored, and in all modified, particularly with regard 
 to the uses of the waters of inland streams and lakes. 
 The present chapter will be devoted to showing how this 
 change was brought about, and the application of the new 
 doctrines to the lands and waters upon the public domain, or 
 that part owned by the United States. 
 
 §1)7. Cause of the (ii:Mii?e. — There were manifest equities 
 which demanded that the common law, hastily adopted from 
 a country so dissimilar in climate and condition to that of the 
 arid region, should not be made applicable when it imperils 
 the most vital interests of some of the richest districts of 
 the world. The rain does not fall alike over all the eartli. 
 In some sections of this country included in the arid west the 
 annual rainfall amounts to from thirty to forty inches per 
 annum, while in other sections it amounts only to from six to 
 ten inches per annum. This is due to a certain extent to the 
 topographical features of the country. The mighty peaks of 
 the Rocky Mountains tap the rain clouds and drain them of 
 their moisture before they reach the .space over the dry valleys.
 
 152 ARID REGION DOCTRINE. [§ 97, 98 
 
 During the winter season great masses of snow are piled up 
 in the mountains and remain in these storehouses of nature 
 until the summer's sun causes the snow to gradually melt and 
 run down into the canyon streams, then out from the moun- 
 tains to the sea, through the vast extent of dry valleys, where 
 perhaps not a drop of moisture has fallen for months. Thus 
 we see that when the water reaches the valleys in the arid 
 region, on its way to the ocean, instead of being precipitated 
 nearly equally upon the earth, as is the case in what is known 
 as the "rain belt," it is gathered in channels which only 
 touch a very small proportion of the land within the arid 
 region, and under the rules of the common law, as can be 
 readily seen, a lew riparian owners would control all of the 
 water in that part of the country to the exclusion of all others. 
 Nature clearly designs, in spite of the facts above set forth as 
 to the inequality of precipitation, that the rain should still be 
 permitted to shed its blessings on all; and that a non-riparian 
 land owner should not be prevented by a riparian ov^^ner from 
 securing his just proportion of water simply because owing to 
 the topographical features which are beyond his remedy or 
 control the water granted to him drains from its storage 
 source in the mountains into springs, pools, streams, and riv- 
 ers, and flows by his neighbor's land, who, as an incident of 
 his ownership of the soil adjoining the stream, controls all of 
 the water thereof, although the same may be far in excess of 
 what he and all the other riparian owners may need. 
 
 § 98. S.uiie. — Common Law Inapplicable to the Arid 
 
 Region. — The common law of riparian rights had its origin in 
 Great Britain, under the conditions of climate peculiar to its 
 position, in the path of the great Gulf Stream, in an atmos- 
 phere laden with moisture, which is precipitated with lavish 
 profusion upon that favored spot. The law gave to the riparian 
 owners, as an incident to their ownership of the soil adjoining 
 the water, the right to the natural flow of the stream without 
 material alteration or diminution. He might use the water for 
 any purpose, provided that he in turn restored the same to its 
 natural course, so that his riparian neighbor below might re- 
 ceive the same unaltered in quality and undiminished in quan-
 
 § 98]. ARID REGION DOCTRINE. 153 
 
 tity. He was not permitted to drain his land so as to increase 
 the quantit}' of water in the stream to the injury of his neigh- 
 bors below, nor dam the water back upon the lands to the in- 
 jury of those above him; nor could there be, according to that 
 law, any diversion or use of the water by one owner that would 
 work material detriment to any other owner above or below 
 him. Owing to the position of the countrj' and its climatic in- 
 fluences the great problem there to be solved was how best to 
 drain the water off the land and get rid of it, not how to save 
 it in order to conduct it upon the land in aid of the husband- 
 man. This latter has been the problem in the arid portions of 
 the earth, and especially in that part of the country west of the 
 looth meridian known as the Great Arid Region. So the cause 
 of the change in the arid region from the common law rules 
 (as the same are in force in England and adopted by the Eastern 
 States during the early history of our country) can be attributed 
 principally to the difference in the condition of the arid reg- 
 ion from that of England and the East, as regards the equal or 
 unequal distribution of moisture. Out of this unequal distri- 
 bution of rainfall throughout the arid region grew the neces- 
 sity of the early California mining system of water rights, 
 which was based on the primary principle of free land, to 
 which discovery and appropriation gave title. And it has 
 been held in a recent case decided in the State of Nevada that 
 adopting the common law adopts only so much of that law 
 as is applicable to the condition of that State; and that as the 
 condition of the soil of Nevada is arid and unfit for cultivation, 
 unless irrigated by the water of running streams, the common 
 law doctrine of rif)arian rights is unsuitcd to the condition of 
 that State.' 
 
 1 Reno Snieltiiif^ M. & R. Works Yeates, 21; Flanaj^an vs. Phila. 42 
 
 vs. C. C. Stevenson, 20 Nev. 269; Pa. 219; »State vs. Cawood, 2 Stew. 
 
 21 Pac. Rep. 317; 4 I,. R. A. 60. Ala. 360; Inj^e vs. l\Iuri)liy, in .Ma. 
 
 Also see vStoiit vs. Keys, 2 Douf^. 885; Jennison vs. Kirk, 98 I'. vS. 
 
 (Mich.) 510. 458; Rroder vs. Natonia W. & Co., 
 
 Atchison vs. Peterson, 20 Wall. loi U. S. 274; Osjjood vs. KlDorado 
 
 510; Lorman vs Benson, 8 Mich. W. cSi M. C, 56 Cal. 571; Whart. 
 
 18; Report of Judj^es, 3 Biuu. Ainc-r. Law, Sees. 30, 31. 
 (Penn.) 595; Shewell vs. I'ell, 3
 
 154 ARID REGION DOCTRINE. [§ 99 
 
 § 09. Same. — Authorities. — In Hurtado vs. California/ 
 Mr. Justice Mathews said upon the subject: "The Consti- 
 tution of the United States was ordained, it is true, by descend- 
 ants of Englishmen, who inherited the traditions of English 
 law and history; but it was made for an undefined and expand- 
 ing future, and for a people gathered and to be gathered from 
 many nations and many tongues. And while we take just 
 pride in the principles and institutions of the common law, 
 we are not to forget that in lands where other systems of 
 jurisprudence prevail the ideas and processes of civil justice 
 are also not unknown. Due process of law, in spite of the 
 absolutism of continental governments, is not alien to the 
 Code which survived the Roman Empire as the foundation 
 of modern civilization in Europe, and which has given us 
 that fundamental maxim of distributive justice, Suum 
 cuiquc trilmere. There is nothing in Magna C/iarta, rightly 
 construed as a broad charter of public right and law, which 
 ought to exclude the best ideas of all systems and of every 
 age ; and as it was the characteristic principle of the common 
 law to draw its inspiration from every fountain of justice, we 
 are not to as.sume that the forces of its supply have been 
 exhausted. On the contrary, we should expect that the new 
 and various experiences of our own situation and system will 
 mold and shape it into new and not less useful forms. "^ 
 From these authorities we assume that the applicability of 
 the common law rule to the physical characteristics of the 
 arid west should be considered, even if the law has been 
 adopted by the constitutions of those States formed out of 
 that region. There the soil is arid and absolutely unfit for 
 cultivation unless irrigated. The general surface of the 
 country is a table land traversed by parallel mountain ranges. 
 The topographical features afford great natural advantages 
 for conducting the water, and lands otherwise waste and 
 valueless become productive by irrigation. The very coidi- 
 tion of the country and the necessities of the situation impelled 
 
 1 no U. S 531. Cal. 54S; Bear River vs. N. Y. M. 
 
 2 Coffin vs. Left Hand Ditch Co., Co., 8 Cal. 327; Hill vs. King, 8 
 
 6 Colo. 443; Irwin vs. Phillips, 5 Cal. 338; Merced M. Co. vs. Fre- 
 
 Cal. 146; Conger vs. Weaver, 6 niont, 7 Cal. 317.
 
 §99,100]. ARID REGION DOCTRINE. 155 
 
 the first settlers upon the public lands to resort to the diver- 
 sion and use of water. This fact in itself is a striking 
 illustration and conclusive evidence of the inapplicability of 
 the common law rule. For were that rule the prevailing one, 
 and strictl}' followed, all the water that is now being diverted 
 to fertilize the soil in the arid regions would be wasted in 
 the sea. 
 
 §100. History of the Change.— In 1848 gold was dis- 
 covered in California, and since the voyage of the Argonauts 
 there has been no such search for a golden fleece as this which 
 now commanded the attention of the world. By sailing ves- 
 sels and steamships over the ocean, b}' prairie-schooners and 
 all sorts of vehicles drawn b}^ horses, oxen and other draft 
 animals, by riding and on foot, the motley throng from all 
 parts of the earth rushed to the "diggins." Of nationalities 
 the flow from Europe alone equalled in variety that of the 
 mediaeval crusades, with notable prominence to the leading 
 types, among which could be seen the self-complacent Briton, 
 the methodic and reflective German, and the versatile Gaul. 
 But all parts of the world contributed to swell the list. 
 Africa was represented by the orthodox negro, by the swarthy 
 Moors, and the straight featured Abyssinians. Asia and Aus- 
 tralasia provided their share in Mongolians, lithe and diminu- 
 tive Malays, the dark skinned Hindoos, and the well formed 
 Maoris, the Kanakas and the stately turbaned Ottoman. The 
 ubiquitous Hebrews, ever to be found in the wake of move- 
 ments offering trade profits, the Hispano-Americans and the 
 half naked Aborigines, all were there, laboring side by side 
 with their American brothers, the sturdy Yankee, who 
 thronged in vast numbers from the Kastern States. The 
 population of California, which in 1848 numbered only from 
 five to six thousand, in 1849 numbered nearly one hundred 
 and ten thousand souls. Scattered over a territory that 
 belonged almost entireh' to the public domain of the United 
 States, that motley throng of people started in the West the 
 mining industry of this country, which became and still is, 
 in man}' of the Pacific States and Territories, of paramount 
 importance, and destined, from the physical features of the 
 country, to always remain so.
 
 15G ARID REGION DOCTRINE. [§ 101 
 
 § 101. Siime— Continued. — Coming as these immigrants 
 did from all countries of the world, and differing in their 
 habits, customs and religious ideas, and restrained by no 
 law save that of superior physical force, and not even agree- 
 ing whence the laws by which they would consent to be gov- 
 erned should eminate, these multitudes of men settled in 
 every direction throughout the mining districts of the Sierra, 
 Nevada and Coast Range Mountains. The immigrants who 
 came by sea, speaking broadly and with all due regard to 
 exceptions, were pioneers not particularly beneficial to the 
 settlement of an entirely new country. Belonging, as a great 
 many did, to the criminal classes of Europe and the Eastern 
 States, they embraced much of the abnormal and a great deal 
 of the criminal and vicious in early California life. The bet- 
 ter classes might build cities and organize society, but there 
 were those among them who for a time made the cities hot 
 beds of vice and corruption, and converted the social fabric into 
 a body nondescript, at the sight of which the rest of the world 
 stood wrapped in apprehension. But, fortunately for the 
 future of California and the countr}' at large, there was a class 
 of people in this mad rush to the Pacific Coast to v^diom, even 
 when their visions of suddenly acquired wealth had been dis- 
 pelled, sober second thought and strength came; and who 
 readily adapted themselves to the several other fields of labor 
 from which they might wrest more surely though slowly the 
 fortune withheld by fickle chance in the gold fields. And here 
 the overland immigrants as a mass had the advantage in num- 
 bers and in many other respects. Coming, as the most of 
 them did, from the small towns and villages and the farms 
 of the interior, or from the young settlements on the western 
 frontier, and accustomed to a rugged and simple life, they 
 craved less excitement. And being honest, industrious, 
 thrifty and self-reliant, the}^ could readily fall back upon 
 familiar toil and find a potent ally in the cultivation of the 
 soil and in mechanical industries. A large proportion of this 
 class of settlers indeed had come to California to cast their 
 lot for all the time in a western home. And fortunately for 
 California and also for the great west, this latter class living
 
 § 101, 102]. ARID REGION DOCTRINE. 157 
 
 nearer to the gold fields, not only arrived upon the scene 
 among the first but also in greater numbers than all other 
 classes put together, and at the close of the year 1849 i^early 
 sixty thousand American citizens were upon the groimd and 
 actively engaged in building up the future State of California. 
 
 § 102. Same. — 31iiiiiii:: Rules and Customs. — This Ameri- 
 can element preponderated, and the Yankee fancied himself 
 over all with his political and commercial supremacy, the more 
 so because he was within the confines of territory owned by his 
 own country, which at all hazards had to be maintained and 
 protected, to the exclusion of the laws and customs of all other 
 nationalities. This element being full of great projects and 
 happy devices for surmounting obstacles, even to the achiev- 
 ing of the seemingly impossible, and fitted no less by indomit- 
 able energy, shrewdness and adaptability than by political and 
 numerical rights, assumed the mastery, and so lifted into a 
 progressive state a virgin field which under English dominion 
 might have sunk into a stagnant conserv^ative colony; or, re- 
 maining under Mexican swaj'', an outpost ever smouldering 
 with revolution. But this American element, wherever it 
 went, carried with it that love of order and system and of fair 
 dealing which is the prominent characteristic of the American 
 people. 
 
 In every mining district or locality the miners held im- 
 provised meetings, framed certain rules for their own govern- 
 ment and enacted regulations by which they agreed to be gov- 
 erned. These "mining customs" and "regulations" in the 
 different districts have a marked similarity to each other, only 
 varying in the several districts according to the extent and 
 character of the mines. These rules were very simple, and re- 
 lated to the acquisition of mining claims and to the water for 
 the purpose of working them, and prescribed the acts neces- 
 sary to constitute such an appropriation of mineral land or 
 position upon a stream as should give the claimants prior right 
 against all others, the amount of work which would entitle 
 him to continued possession and enjoyment, and what would 
 constitute an abandonment of these rights and others of like 
 character. There was one principle embodied in them all,
 
 158 ARID REGION DOCTRINE. [§ 102 
 
 upon which rests the "Arid Region" doctrine of the owner- 
 ship and use of waters, and that was the recognition of dis- 
 covery, followed by prior appropriation, as the foundation of 
 the possessor's title, and development by working as the con- 
 dition of its retention. The lands all being upon the public 
 domain of the United States the first appropriator was held 
 to have, within certain well-defined limits, a better right than 
 others to the claim he had taken up; and in all controversies 
 and disputes, except as against the government, he was re- 
 garded as the original and (unless he had abandoned his claim) 
 absolute owner from whom title was to be traced. But the 
 mines could not be worked without water. Without water 
 the gold would forever remain buried in the earth or rock. 
 Therefore it became oftentimes, when the mining claims were 
 not on the banks of a stream or lake, an important and neces- 
 sary business to carry the water to the mines in order that 
 they might be worked. The waters of rivers and lakes were 
 carried great distances by means of ditches and flumes, con- 
 structed with great labor and enormous expenditure of money, 
 along the sides of mountains and through canyons and ravines, 
 to supply communities engaged in mining as well as for agri- 
 cultural and ordinar}^ domestic consumption. But here also 
 the first appropriator of water to be convej^ed to such locali- 
 ties, for mining or other beneficial purposes, was recognized as 
 having to the extent of the actual use the better right. The 
 doctrine of the common law respecting the rights of riparian 
 owners was not considered applicable, or only in a very limited 
 degree, to the condition of the miners in the mountains. 
 Numerous regulations were adopted, or from their obvious 
 justness assumed to exist, by the mining communities for 
 the protection of these water rights and for the security of the 
 ditches and flumes conducting the water, not only between 
 the different appropriators, but also between them and the 
 holders of mining claims and the owners of lands adjoining 
 the rivers and streams. It was not until 1851 that there was 
 any legislation upon the subject, at which time the State 
 I^egislature of California passed an act relating there to. ^ In 
 
 1 See next section.
 
 § 102, 103]. ARID REGION DOCTRINE. 159 
 
 i866 Congress passed the first act relating to the sale of min. 
 eral lands on the public domain, the ninth section of which re- 
 lated to the waters appropriated, as above set forth. ^ So, for 
 a period of eighteen years, from 1S48 to 1866, proprietors in 
 mining claims and water rights to the value of man}- millions 
 rested only upon the regulations and customs of miners which, 
 sanctioned by the legislature and State courts of California, 
 constituted all the law governing propert}- in mines and in 
 water upon the mineral lands located upon the public domain 
 of the United States. ^ 
 
 § 103. Same. —First Legislation Upon the Subject, by 
 State. — The first law upon this subject enacted by any legis- 
 lative body was that of the State legislature of California in 
 the year 1H51, which sanctioned the "mining customs" 
 referred to in the last section, and was as follows: "In 
 actions concerning mining claims, proof shall be admitted of 
 the customs, usages, or regulations established, or in force, at 
 the bar or diggings embracing said claims 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 
 action." Thus it devolved upon the legislature of the new 
 State of California to pass the first act declaring these 
 "mining customs" to be the law which should control and 
 govern not only the acquisition and retention of mining 
 claims but also the acquisition and retention of water rights 
 necessar}' for working the same. This enactment was based 
 upon an entirely new principle governing the rights of water 
 in the United States, the law of priority of appropriation, or 
 the first in time being the first in right. This principle 
 almost entirely overthrew the common law theories in the 
 Pacific States as to the control and ownership of the waters of 
 natural streams and lakes where such waters were appropriated 
 for any beneficial use, as we shall see in the further discussion 
 of the subject. 
 
 ISee Sec. 113; act of Congress 670; l-'orbes vs. Ciracey, 94 U. S. 
 
 1866; Rev. Stat. U. S., Sec. 2339. 762; Jennisoii vs. Kirk, 98 U. S. 
 
 2 Atchison vs. Peterson, 20 Wall. 453. 
 507; Basey vs. Gallagher, 20 Wall.
 
 160 ARID REGION DOCTRINE. [§ 104, 105 
 
 § 104. Siime. — Early (.-oiirt Decisions. — These "Mining 
 Customs ' ' thus having been originated and strengthened by 
 the act of the California legislature above quoted, were in a 
 few years approved to the fullest extent by the Courts of that 
 State, although in some of its first decisions the Supreme 
 Court seemed loth to adopt the new principle. 
 
 In the case of Eddy vs. Simpson^ the District Court charged 
 the jury, on the trial below, as follows : "As a general prin- 
 ciple, the party who first uses the water of the stream is by 
 virtue of priority of occupation entitled to hold the same. If 
 a company or association of miners construct a ditch to 
 convey water from a running stream 'for mining or other pur- 
 poses, and they are the first to use the water, locate and 
 construct the ditch, they are legally entitled to the same as 
 their property, to the extent of the capacity of the ditch to 
 hold and convey water. For, if it appears that there is more 
 water running in the stream than the ditch of the first party 
 can hold and convey, then any other party may rightfully 
 take and use the surplus, and it does not matter whether the 
 excess of water be taken from a point above or below the dam 
 of the first party." 
 
 Justice Wells, in delivering the opinion of the Supreme 
 Court reversing the judgment below, said : "The rule laid 
 down by the Court below, while it is a departure from all 
 rules governing this description of property, would be imprac- 
 ticable in its application, and we think that it is 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." 
 
 §105. Same — Continued.— Also in the case of Hill vs. 
 Newman, 2 Bryan, Judge, in delivering the opinion of the 
 Court, said. " The right to running water is defined to be a 
 corporeal right, or hereditament, which follows oris embraced 
 by the ownership of the soil over which it naturally passes.^ 
 
 I3 Cal. 249, 250. 105; I Cruise's Digest, 39; Angell 
 
 25 Cal. 446, 447. & Ames on Water-Courses, P. 3. 
 
 3 Sackett vs. Whe^fton, 17 Pick.
 
 § 105, 106]. ARID REGION DOCTRIXE. 161 
 
 " P'rom the polic}- 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 bestow^ed upon the 
 occupier or appropriator of the soil." 
 
 But in other -cases the Supreme Court of that State adopted 
 the new doctrine, in some instances almost without discussion, 
 as though the rule had been the settled law for ages/ and the 
 doctrine of prior appropriation became and still is settled in 
 that State and other Pacific States and Territories formed out 
 of the arid region in opposition to the common law theories of 
 riparian rights. And it became settled that a permanent right 
 of property, in the right of streams and inland lakes, which 
 wholly ran through or were situated upon the public domain of 
 the United States, may be acquired for mining or irrigation pur- 
 poses b}' mere appropriation; that the appropriator may thus 
 acquire the right to divert, use and consume all of the water 
 so appropriated and diverted from the natural flow or condi- 
 tion of such streams or lakes if the same should be necessary 
 for the purposes of his mining operations or the irrigation of 
 his land; and it was then held that the prior appropriator 
 became the owner of his rights to the water by virtue of his 
 appropriation as against all the world except the United 
 States government. 
 
 § lOU. Decisions Favoriiig Doctrine — Irwin vs. Phillips. 
 
 One of the first decisions of the Supreme Court of California, 
 where this subject was thoroughly discussed, was that of 
 Irwin vs. Phillips et al.,^ decided in 1855, and we can do no 
 better than to quote here at length from the opinion rendered 
 by Mr. Justice Heydenfeldt, in which he says : "It is insisted 
 by the appellants that in this case the common law doctrine 
 must be invoked, which prescribes that a water-course must 
 be allowed to flow in its natural channel. But upon an 
 
 iKelly vs. Natoma W. Co., 6 Cal. 312. vSee also next two st-ctious 
 107; Maeris vs. Bicknell, 7 Cal. 262; and cases cited. 
 N. C. & S. C. Co. vs. Kidd., 37 Cal. 25 Cal. 140, 146.
 
 162 ARID REGION DOCTRINE. [§ 106 
 
 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 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 States 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 com- 
 mon law the diversion of water-courses could only be com- 
 plained of by riparian owners, who were deprived of the use, or 
 or those claiming directly under them. Can the appellants 
 assert their present claim as tenants at will ? To solve this 
 question it must be kept in mind that their tenancj^ is of 
 their own 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 pur- 
 pose of supplying the mines at another point. 
 
 " Courts are bound to take notice of the political and social 
 condition of the country which they judicially rule. In this 
 State 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 system has been permitted to grow up by 
 the voluntarj^ action and assent of the population, whose free and 
 unrestrained occupation of the mineral region has been tacitly 
 assented to by the one government, 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 neces- 
 sity and propriety have so firmlj^ fixed as that they have come 
 to be looked upon as having the force and eflfect res judicata. 
 Among these the most important are the rights of miners to be
 
 § 106.] ARID REGION DOCTRINE. 163 
 
 protected in the possession of their selected localities, and the 
 rights of those who, bj- prior appropriation, have taken the 
 waters from their natural bed and by costly artificial 
 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 be- 
 come these rights, that without any specific legislation con- 
 ferring or confirming them , they are alluded to and spoken of 
 in the 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 law-makers; 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 IX of the same Act, providing 
 for the assessment of companies and associations, 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 
 privilege to work mines, it has equally conferred the right to 
 divert streams from their natural channel; and as these two 
 rights stand upon equal footing, when they conflict, they must 
 be decided by the fact of priority, upon the maxim of equity, 
 qici prior est in tanpore, potior est in jicre. 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 can not be taken to his prejudice; but if they 
 have been already diverted, and for as high and as legitimate 
 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 disadvantages of his own 
 selection. "1 
 
 1 Maeris vs, Bicknell, 7 Cal. 261 ; Cal. 33; Kidd vs. Laird, 15 Cal. 162; 
 10 Cal. 217; Crandall vs. Woods, 8 McKiiniey vs. Smith, 21 Cal. 3.S1; 
 Cal. 136; Ortniaii vs. Dixon. 13 Phoenix Water Co. vs. FU-tcher.
 
 16-J: ARID REGION DOCTRINE. [§ 107 
 
 § 107. Same.— Bear lliver, etc. Water Co. vs. New York 
 
 Milling Co. — Another early decision of the Supreme Court of 
 California in which this question was even more thoroughly- 
 discussed was that of The Bear River and Auburn Water and 
 Mining Co. vs. The New York Mining Company, decided in 
 1857,^ in which Mr. Justice Burnett said: " It may be said, 
 with truth, that the judiciary of this State has had thrown 
 upon it responsibilities not incurred by the Courts of any 
 other State in the Union. In addition to those perplexing 
 cases that must arise in the nature of things, and especially in 
 putting into practical operation a new constitution and a new 
 code of statutes, we have had a large class of cases unknown 
 in the jurisprudence of our sister States. The mining interest 
 of the State has grown up under the force of new and extra- 
 ordinary circumstances, and in the absence of any specific and 
 certain legislation to guide us. Left without any direct pre- 
 cedent, as well as without specific legislation, we have been 
 compelled to apply to this anomalous state of things the anal- 
 ogies of the common law and the more expanded principles of 
 equitable justice. There being no known system existing at 
 the beginning, parties were left without any certain guide, 
 and for that reason have placed themselves in such conflicting 
 positions that it is impossible to render anj^ decision that will 
 not produce great injury, not only to the parties immediately 
 connected with the suit, but to large bodies of men who, 
 though no formal parties to the record, must be deeply affec- 
 ted by the decision. No class of cases can arise more difficult 
 of a just solution or more distressing in practical result. And 
 the present is one of the most difficult of that most perplexing 
 class of cases. 
 
 "The business of gold-mining was not onlj^ new to our 
 people and the cases arising from it new to our Courts, and 
 
 23 Cal. 481; Wixon vs. Bear River son, 61 Cal. 259; Strait vs. Brown, 
 
 etc. Co., 24 Cal. 367; Hill vs. Smith 16 Nev. 317; Lowdell vs. Simpson, 
 
 27 Cal. 480; Nevada Co. and S. C. 2 Nev. 274; Ophir S. M. Co. vs. 
 
 Co. vs. Kidd, 37 Cal. 282; Parks Carpenter, 4 Nev. 534; Barnes vs. 
 
 Canal Co. vs. Hoyt, 57 Cal. 44; Sabron, 10 Nev. 217. 
 Farley vs. Spring Valley Water 18 Cal. 327, 333. 
 
 Co., 58 Cal. 142; Himes vs. John-
 
 § 107]. ARID REGION DOCTRINE. 165 
 
 without judicial or legislative precedent either in our own 
 country or in that country from which we have borrowed our 
 jurisprudence, but there are intrinsic difficulties in the subject 
 itself that it is almost impossible to settle satisfactorily, even 
 by the application to them of the abstract principles of justice. 
 Yet we are compelled to decide these cases, because they must 
 be settled in some way, whether we can say after it is done 
 that we have given a just decision or not. 
 
 "The use of water for domestic purposes and for the water- 
 ing of stock are preferred uses, because essential to sustain 
 life. Other uses must be subordinate to these. In such cases 
 the element is entirely consumed. Next to these may prop- 
 erly be placed the use of water for irrigation in dry and arid 
 countries. In such cases the element is almost entirely con- 
 sumed. Under a proper system of irrigation onl}- so much 
 water is taken from the stream as may be needed, and the 
 whole is absorbed or evaporated. Entire absorption is the 
 contemplated result of irrigation. When properly used as a 
 motive power for propelling machinery the element is not in- 
 jured, because the slight evaporation occasioned b}' the use is 
 unavoidable and is not esteemed by law a substantial injury. 
 Any number of riparian proprietors can use the water as a 
 motive power in succession, without substantial injury to any 
 other, for the element is just as good for the purpose of the 
 last as for those of the first proprietor. 
 
 "Considering the different uses to which water is applied 
 in countries governed b}' the common law, it is not so diffi- 
 cult to understand the principles that regulate the relative 
 rights of the different riparian proprietors. As to the pre- 
 ferred uses, each proprietor had the right to consume what 
 was necessary, and after doing this he was bound to let the 
 remaining portion flow, without material interruption or de- 
 terioration, in the natural channel of the stream, to others 
 below him. If the volume of water was not sufficient for all, 
 then those highest up the stream were supplied in preference 
 to those below. So far as the preferred uses were concerned, 
 no one was allowed to deteriorate the qualit}' of the water. 
 And for the purposes of a motive j^ower there was no use of 
 the element that could impair its quality.
 
 166 . ARID REGION DOCTRINE. [§ 107, 108 
 
 "But in our mineral region we have a novel use of water, 
 that can not be classed with the preferred uses; but still a use 
 that deteriorates the quality of the element itself when wanted 
 a second time for the same purposes. In cases heretofore 
 known, either the element was entirely consumed or else its 
 use did not impair its quality when wanted again for the same 
 purpose. And this fact constitutes the great difficulty in this 
 and other like cases. If the use of water for mining purposes 
 did not deteriorate the quality of the element itself, then the 
 only injury that could be complained of would be the dimi- 
 nution in the quantitj^ and the interruption in the flow. It is 
 this novel use of water, and its effects upon the fluid itself, 
 that constitutes the main difficulty in this case. In repeated de- 
 cisions of this Court it has been uniformly held that the miners 
 were in the possession of the mineral lands, under a license 
 from both the State and Federal Government. This being 
 conceded, the superior proprietor must have had some lead- 
 ing object in view when granting this license; and that object 
 must have been the working of these mineral lands to the best 
 advantage. The intention was to distribute the bount}^ of the 
 Government among the greatest number of persons, so as most 
 rapidly to develop the hidden resources of this region; while 
 at the same time the prior substantial rights of individuals 
 should be preserved. In the working of these mines water is 
 an essential element; therefore, that system which wull make 
 the most of its use without violating the rights of individuals 
 will be most in harmony with the end contemplated by the 
 superior proprietor." 
 
 § 108. Same. — Clougli vs. Wing. — In a more recent case, 
 Clough vs. Wing, decided by the Supreme Court of the Terri- 
 tory of Arizona,^ which Territory is within the very heart of 
 the arid region, after referring to several cases holding against 
 the applicabilit}" of the common law doctrine in the arid reg- 
 ion, the Court said: "These cases state a doctrine very dif- 
 ferent from the common law. * * * That law gave to the 
 servient and dominant heritage the right to the natural flow 
 of the water. The riparian owner might use the water in its 
 
 1 17 Pac. Rep. 455.
 
 § 108, L09.] ARID REGION DOCTRINE. 167 
 
 course to turn his water-wheel or for other purposes, but was 
 required to restore the same to its natural course. While he 
 might not hinder the flow so as to injure those below him, he 
 might depasture his domestic animals so as to drink therefrom, 
 and take water for domestic uses. He might not drain his 
 land so as to increase the flood, to injure those below, or dam 
 the water back upon the lands above him.^ The problem there 
 to be solved was how best to drain the water oflF the land and 
 get rid of it, not how to save it, to be conducted on the land in 
 the aid of the husbandman. The latter has been the problem 
 in the arid portions of the earth. From 'time whereof the 
 memory of man runneth not to the contrary' the rights of ri- 
 parian owners were settled in the common law." 
 
 § 109. Decisions on Principle Based Upon Doctrine of 
 Presnniption. — In view of the fact that previous to the year 
 1 866, the date of the first act of Congress upon the subject, 
 this new doctrine of prior appropriation could be based upon 
 no grant, statute, or express permission from the Federal 
 Government directly authorizing the right of exclusive appro- 
 priation of water upon the public domain, and from the fact 
 that the legislature of the State of California passed the 
 following act, "The common law of England so far as it is 
 not repugnant to or inconsistent with the Constitution of the 
 United States or the Constitution or the laws of the State of 
 California shall be the rule of the decisions of all the Courts 
 of this State," it seems strange that the early California 
 
 1 Citinj?, I Inst. 4; 2 Rla. Comm. Co., 9 N. W. Rep. 379; Ry. Co. vs. 
 
 18; Angell on Water-courses, 8; 3 Dyche, i Pac. Rep. 243; Red River 
 
 Kent Comm. 361; Elliot vs. Fitch- Co. vs. Wright, 15 N. W. Rep, 167; 
 
 burg Ry. Co., 10 Cush. 193; Right Creighton vs. Irrigation Co., 7 
 
 vs. Howard, i Sim. & Stu. 190; Pac. Rep. 658; Moore vs. Clear 
 
 Lux vs. Haggin, 4 Pac. Rep. 919: Lake Co., 5 Pac. Rep. 494; Wilcox 
 
 Weiss vs. Steel Co., 11 Pac. Rep. vs. Hausch, 3 Pac. Rep. 108; Lar- 
 
 255; Hill V.S. Lenormand, 16 Pac. rimer Co. vs. People, 9 Pac. Rep. 
 
 Rep. 266; Ware vs. Allen, 5 N. E. 794; Garwood vs. Railway Co., S3 
 
 Rep. 629; Mason vs. Cotton, 4 Fed. N. Y. 400; Ry. Co. vs. Miller, 3 
 
 Rep. 792; Dumont vs. Kellogg, 29 Atl. Rep. 780; Totel vs. Bonuefoy, 
 
 Mich. 420; Jones vs. Adams, 6 Pac. 14 N. E. Re]). 687; Peck vs. Her- 
 
 Rep. 442; Pyle vs. Richards, 22 N. ringlon, 109 111. 611. 
 \\^ Rep. 370; Van Orsdale vs. Ry.
 
 168 ARID REGION DOCTRINE. [§ 109 
 
 decisions respecting water rights, which are directly opposed 
 to the common law rules respecting the same, as universally 
 understood and expounded by the Courts of England and of the 
 United States, should be based upon " one favorite and much 
 indulged doctrine ' ' of the common law itself — the doctrine of 
 presumption. Yet, in spite of the seeming inconsistency, 
 such is the fact. Pomeroy in his work on Riparian Rights 
 seems to give the true explanation, that it was " in order to 
 protect the vast interests which had grown up under the 
 mining systems, and to give legal sanction to the rights thus 
 acquired."^ 
 
 ' ' Presumptions of fact are inferences as to the existence of 
 some fact drawn from the existence of some other fact."^ 
 So the existence of the open and notorious fact that certain 
 waters of streams and lakes located upon the public domain 
 of the United States had been appropriated by private parties 
 for mining, agriculture, and various other purposes; and that 
 enormous expenditures of mone}' had been made in building 
 up vast interests in conducting the water to places where it 
 was needed; also that in face ot these open and notorious 
 facts the Government of the United States, the proprietor of 
 these lands and waters, had not attempted to assert an}- right 
 of ownership in them, and that the State government of Cali- 
 fornia had not only looked approvingly upon this universal 
 appropriation of said lands and waters, but had in some 
 instances encouraged them, it was therefore presumed that 
 the prior appropriators had a better right than subsequent 
 patentees of the government posterior to July 26th, iS66» 
 who entered their lands, prior to that act, but had not per- 
 fected title until after, on the theory that the appropriation 
 was allowed or licensed by the United States, the owner. -^ 
 
 1 Pomeroj- Rip. Rights, Sec. 22. 3 See Lux vs. Haggin, 69 Cal. 
 
 SRouvier Law Die. sub. Presump- 255; 10 Pac. Rep. 721; Conger vs. 
 
 tion; I Phillips on Ev. 156; Rex Weaver, 6 Cal. 556; Fitzgerald vs. 
 
 vs. Burdett, 4 B. & Aid. 161; Pat- Urton, 5 Cal. 309. 
 
 tershall vs. Turford, 3 B. & Ad. But see ' the case of Boggs vs. 
 
 890; 23 Eng. C. L. 212; Eldridge Merced Mining Co., 14 Cal. 355, 
 
 vs. Knott, Cowper 215; Good Title 374, where Mr. Chief Justice Field 
 
 vs. Baldwin, 11 East 4SS. said in rendering the opinion of
 
 § 109, 110.] 
 
 ARID REGION DOCTRINE. 
 
 169 
 
 The supposed license consisted simply in the forbearance 
 of the government from interfering or prohibiting these appro- 
 priations, there never being an}- license in fact from the gov- 
 ernment nntil the act of Congress of July 26th, 1866.^ 
 
 § 110. Same — Coutiiiued — Conger vs. Weaver. — It will not 
 do to leave this discussion with but a passing notice of Conger 
 vs. Weaver, 2 where the question was discussed with great 
 ability by a learned judge as early as the year 1856. Mr. 
 Justice HcN'denfeldt, in delivering the opinion of the Court, 
 said: "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 less the common law; 
 
 the Court: "Assuming, then, in 
 the first place, for the purpose of 
 this case, that the mineral belongs 
 to the United States — has the de- 
 fendant any effectual license to 
 enter upon the premises of the 
 plaintiff and remove it. It is some- 
 times said, in speaking of the pub- 
 lic 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 the term. A license 
 to work the mines implies a per- 
 mission to extract and remove the 
 mineral. Such license from an 
 individual owner can be created 
 only by writing, and from the 
 general government only l^y Act 
 of Congress. It carries an interest 
 in land, and arises only from grant. 
 The mineral, whether a distinct 
 possession or otherwise, consti- 
 tutes part of tlie realty, as much 
 so as growing timber, and no in- 
 terest in it can pass except in the 
 
 ordinary modes for the disposition 
 of land. It is under the exclusive 
 control of Congress equally with 
 any other interest which the gov- 
 ernment possesses in land. But 
 Congress has adopted no specific 
 action on the subject, and has left 
 the matter to be controlled by its 
 previous general legislation re- 
 specting the public domain. And 
 it is from its want of specific action 
 from its passiveness, that the in- 
 ference is drawn of a general 
 license. The most which can be 
 said is that the government has 
 forborne to exercise its rights, but 
 this forbearance confers no posi- 
 tive 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 
 pul)lic lands, consists in its simple 
 forbearance. Any other license 
 rests in mere assertion, and is un- 
 true in fad and unwarranted in 
 law." 
 
 ' Ibid; Tojueroy on Rii). Rights, 
 Sec. 23. 
 
 2 6 Cal. 54«, 556.
 
 IVO ARID REGION DOCTRINE. [§ 110 
 
 for the latter is a system of grand principles, founded upon 
 the nature and perfected reason of centuries. It would have 
 but little claim to the admiration to which it is entitled, if it 
 failed to adapt itself to any condition, however new, which 
 may arise; and it would be singularly lame if it is impotent 
 to determine the rights of any dispute whatsoever. Having, 
 as far as we have gone, met all difficulties by adhering to its 
 doctrines, we have no ground to presume that we will have to 
 go beyond its precincts for a solution of any which may arise. 
 One of the favorite and much indulged doctrines of the com- 
 mon law, is the doctrine of presumption. Thus, for the pur- 
 pose of settling men's differences, a presumption is often 
 indulged, where the fact presumed can not have existed." 
 After citing several authorities upon the subject, he continued: 
 "In these cases presumptions were indulged against the 
 truth — presumptions of Acts of Parliament and grants from 
 the Crown. It is true, the basis of the presumption was 
 length of time, but the reason of it was to settle the dispute 
 and to quiet the possession. If, then, lapse of time requires 
 a Court to raise presumptions, other circumstances, which are 
 equally potent and persuasive, must have the like effect for 
 the purposes of the desired end; for lapse of time is but a 
 circumstance, or fact, which calls out the principle and is not 
 the principle itself. 
 
 "Every judge is bound to know the history and the leading 
 traits which enter into the history of the country where he 
 presides. This we have held before, and it is also an admitted 
 doctrine of the common law. We must, therefore, know that 
 this State has a large territory; that upon its acquisition by 
 the United States, from the sparseness 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, had been acquired by 
 individuals b}^ 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 thej^ have dug for gold; excavated mineral 
 rock; constructed ditches, flumes and canals for conducting 
 water; built mills for sawing lumber and grinding corn;
 
 § 110, 111.] ARID REOIOX DOCTKIXE. 171 
 
 established farms for cultivating the earth; made settlements 
 for the grazing of cattle; laid off towns and villages; felled 
 trees, diverted water- courses; and, indeed, have done, in 
 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 an}' right of owner- 
 ship to any of the large body of land 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 an}' propriet}' of reason or com- 
 mon sense, that the parties to these acts have acquired no 
 rights? If they have acquired rights, these rights rest upon 
 the doctrine of presumption of a grant of right, arising 
 either from the tacit assent of the sovereign, or from the 
 expressions of her will in the course of her general legislation, 
 and, indeed, from both. Possession gives title only by pre- 
 sumption; then, when the possession is shown to be of public 
 land, why may not any one oust the possessor ? Why can 
 the latter protect his possession ? Only upon the doctrine of 
 presumption, for a license to occupy from the owner will be 
 presumed." ^ 
 
 § 111. Appropriation as Apiinst the United States. — The 
 
 United States being the owner of the public domain, and, of 
 course, as incident thereto the waters thereon, an appropriator 
 of those waters prior to the year 1866 has been held not to have 
 acquired any legal title to the same as against the Federal 
 Government or its grantee; although it has also been held that 
 the appropriator had, prior to the act of Congress, acquired an 
 
 •Hicks vs. Bell, 3 Cal. 219; Ir. vs. Natoiiui Water Co., loi U. S. 
 win vs. Phillips, 5 Cal. 140; Broder 276.
 
 172 ARID REGION DOCTRINE. [§ 111, 112 
 
 equitable title to the water appropriated. ^ It has never been 
 held by the Supreme Court of the United States, or by the Su- 
 preme Court of California, that an appropriation of water on 
 the public lands of the United States after the act of Congress 
 of July 26th, 1 866, or the amendator}- and declaratory act of 
 1870, gave to the appropriator the right to the water appro- 
 priated as against the grantee of riparian lands upon the same 
 stream under a grant made or issued prior to the act of 1866, 
 except in a case where the water, so subsequently appropriated, 
 was reserved by the special terms of such grant. And it has 
 been held by the Supreme Courts of California and Nevada 
 that one who acquired a title to riparian lands from the United 
 States prior to the act of Congress of July 26th, 1866, could 
 not, in the absence of special reservation in his grant, be de- 
 prived of his common law rights to the natural flow of the 
 stream as it was wont by one who had appropriated its waters 
 after the passage of that act. In other words the courts of 
 California have repeatedly held that the common law doctrine 
 was in force in that State and entitled to protection.^ 
 
 § 112. Appropriation Prior to Patent Issned Before Act 
 of 1866. — But the Courts of California and Nevada have gone 
 even further than the above. In the case of Lux vs. Haggin, 
 supra, decided b}' the Supreme Court of California, Mr. Jus- 
 tice McKinstr}^,^ in giving the opinion of the Court relative to 
 the principle that a patent issued prior to the act of Congress 
 of July 26th, 1 866, for riparian lands upon a stream was not 
 subject to an appropriation of the waters of the same stream 
 made prior to the issuance of the patent, referred approvingly 
 to the rule as laid down b}^ the Supreme Court of Nevada in 
 the case of Vansickle vs. Haines,^ and said: " In Vansickle 
 vs. Haines, the plaintiff had diverted one-fourth of the water of 
 Daggett Creek in the year 1857. He made the diversion on a 
 
 1 See post Chapt. VII. Sees. 192, 10 Pac. Rep. 724; Civil Code of Cali- 
 
 206: Jones vs. Adams, 19 Nev. 78; fornia, Sec. 1422; Vansickle vs. 
 
 6 Pac. Rep. 442; Broder vs. Na- Haines, 7 Nev. 249. 
 
 toma Water & M. Co., loi U. S. =^69 Cal. 255. 
 
 274. ^7 Nev. 249, overruled in Jones 
 
 ^Osgood vs. Water Co., 56 Cal. vs. Adams, 19 Nev. 78; 6 Pac. Rep. 
 
 571; Lux vs. Haggin, 69 Cal. 255; 242.
 
 § 112]. ARID REGION DOCTRINE. 173 
 
 point then on the public land, but which in 1864 was patented 
 by the United States to the defendant Haines. In 1865 Van- 
 sickle obtained a patent for his own land where he used the 
 water. In 1 867 Haines contructed a wood flume on his land 
 and turned into it all of the waters of the stream, thereby depriv- 
 ing the plaintiflFof that part of it which he had been using. The 
 Supreme Court of Nevada held that the plaintiff by his appro- 
 priation of water /r/cr to the date of the defendant V patent 
 acquired no right which could affect that grant, and that 
 while the act of Congress of July, 1866, protected those who at 
 that time were diverting water from its natural channels on 
 the public lands; and while all patents issued or titles acquired 
 from the United States since that date are obtained subject 
 to the rights of water by appropriation existing at that time 
 yet with respect to patents for riparian lands issued before the 
 act of Co7igress the patentee had already acquired the right to 
 the flow of the water, with which Congress could not inter- 
 fere." In other words the decision held that any one claim- 
 ing the water of a stream which was upon the public domain 
 simply by the appropriation of the same, no matter how bene- 
 ficial or necessary the use to which it was applied, acquired 
 no vested right as against the Government or its grantees, un- 
 less he still continued to appropriate the water to his own use 
 until after the act of Congress of 1866 without the water being 
 claimed by some riparian owner who had received his patent 
 to the \2Ln& prior to said act. But in reference to other appro- 
 priators and grantees of the Government who received their 
 patents after the said act of Congress of 1866 the first appro- 
 priator's title to the water was good. And it was further held 
 that those who had appropriated the waters on the public 
 lands prior to the act of 1866 were not treated by the Govern- 
 ment as trespassers, but as thereby licensed; but that they 
 had acquired no title which could be asserted against the 
 United States or its grantees.^ This, as can be readily seen, 
 was a very uncertain state of affairs for the parties whose title 
 to waters depended solely upon the prior appropriation of the 
 
 1 See also Union ?klill Co. vs. I"er- Dangberj.(, 2 Saw. 450; Could on 
 ris, 2 Saw. 176; Union Mill Co. vs. Waters, Sec. 240, and cases cited.
 
 174 ARID REGION DOCTRINE. [§ 112, 113 
 
 same, as it was not known when a grantee of the Government 
 or the Government itself might step in and claim all the 
 waters of the streams upon the public domain, to the great 
 loss to those who had made the appropriations. But we shall 
 see in our next section that relief soon came by the celebrated 
 act of Congress of July 26th, 1866, referred to above. ^ 
 
 § 113. The Act of Congress of July 26tli, 1S6G.— As we 
 
 have seen, the government had by its conduct recognized the 
 rights of persons who had appropriated the water of the streams 
 and lakes on the public domain, and who had constructed 
 canals and ditches to facilitate its use in mining operations 
 and for the purpose of agriculture in the region where such 
 artificial use of the water was a necessity. It is further true 
 that before any act of Congress was passed sanctioning those 
 claims of the miners, this doctrine of prior appropriation, 
 which at first applied onl}^ to the operations of mining, was ex- 
 tended to all other beneficial purposes for which water was 
 essential — to irrigation, in promoting agriculture and horti- 
 culture, to milling, manufacturing and municipal purposes — 
 which uses were also recognized and encouraged by the gov- 
 ernment as being equal. ^ On the 26th day of July, 1866, Con- 
 gress passed an act which confirmed this view, and formally rec- 
 ognized this new doctrine of prior appropriation, which has 
 been held by the United States Supreme Court to be "rather 
 a voluntary recognition of a pre-existing right of possession, 
 constituting a valid claim to its continued use than the estab- 
 lishment of a new one."-"^ The ninth section of that act reads 
 as follows: "Whenever, by priority of possession, rights to 
 the use of water for mining, agricultural, manufacturing or 
 other purposes, have vested and accrued, and the same are 
 recognized and 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 
 
 iSee discussion upon this sub- 3 Atchison vs. Peterson, 20 Wall, 
 
 ject, post Chapter VII, Section 507; Basey vs. Gallagher, 20 Wall. 
 
 192-206. 620; Forbes vs.Gracey, 94 U. S. 762; 
 
 2 See Pomeroy on Riparian Jennison vs. Kirk, 98 U. S. 453; 
 
 Rights Sec. 15, note and cases Broder vs. Natoma Water & M. 
 
 cited. Co., loi U. S. 274.
 
 § 113, 111.] ARID REGION DOCTRINE. 175 
 
 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 damages the possession of any settler on the 
 public domain, the party committing such injury shall be 
 liable to the party injured for such injury or damage."^ 
 
 Thus this act of Congress, whilst acknowledging the general 
 wisdom of the customs and regulations of the miners, as sanc- 
 tioned by the State of California and moulded by its Courts, 
 secured these rights to water, and rights of way over public 
 lands to convey the water where it was needed, to the parties 
 who had prior to the Act made the appropriation. And this 
 Act of Congress prevented the destruction of these rights by 
 making all subsequent patentees acquiring lands from the 
 United States take those lands subject to all " vested and ac- 
 crued " rights in and to the waters of the public domain ap- 
 propriated by other parties prior to its enactment. 
 
 § 114. Same— Coutinued— Cause of Passage of Act.— In 
 commenting upon the cause of the passage of this Act of Con- 
 gress, Mr. Justice Field of the Supreme Court of the United 
 States, in rendering the opinion of that Court in the case of 
 Jennison vs. Kirk,^ said: " 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 condition 
 of the miners in the mountains. The waters of rivers and 
 lakes were consequently carried great distances in ditches and 
 flumes, constructed with vast labor and enormous expendi- 
 tures of money, along the sides of mountains and through 
 canyons and ravines, to supply communities engaged in min- 
 ing, as well as for agriculturists and ordinary consumption. 
 Numerous regulations were adopted, or assumed to exist, from 
 their obvious justice, for the security of these ditches and flumes 
 and the protection of rights to water, not only between appro- 
 priators, but between them and the holders of mining claims. 
 These regulations and customs were appealed to in contro- 
 versies in the State courts, and received their sanction; and 
 properties to the value of many millions rested upon them, 
 1 Revised vStat. U. S. 2339. -'^'^ U. vS. 453.
 
 176 ARID UEGIOX DOCTRINE. [§ 114 
 
 For eighteen years, from 1848 to 1866, the regulations and cus- 
 toms of miners as enforced and moulded by the courts and 
 sanctioned by the legislation of the State, constituted law gov- 
 erning propert}^ in mines and in water on the public mineral 
 lands. Until 1866, no legislation was had looking to the sale 
 of the mineral land. The policy of the country had previ- 
 ously been, as shown by the legislation of Congress, to exempt 
 such land from sale. In that year the Act, the ninth section 
 of which we have quoted, was passed. In the first section it 
 was declared that the mineral lands of the United States were 
 free and open to exploration and occupation by the citizens of 
 the United States, and those who had declared their intention 
 of becoming citizens, subject to such regulations as might be 
 prescribed by law and the local customs or rules of miners in 
 the several mining districts, so far as the same were not in 
 conflict with the laws of the United States. * * * In no 
 provision of the Act was any intention manifested to inter- 
 fere with the possessory rights previously acquired, or which 
 might be afterwards acquired; the intention expressed was to 
 secure them by a patent from the government. The Senator 
 of Nevada, Hon. 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 portrayed in 
 glowing language the wonderful results that had followed the 
 system of free mining which had prevailed with the tacit con- 
 sent of the government. The Legislature of California, he 
 said, had wisely declared the rules and regulations of miners 
 should be received in evidence in all controversies respecting 
 mining claims, and, when not in conflict with the Constitu- 
 tion or laws of the State or of the United States, should gov- 
 ern their determination; and a series of wise judicial decisions 
 had moulded these regulations and customs into 'a comprehen- 
 sive 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 dis- 
 cover wealth, which, when found, was protected by no higher
 
 § 114, 115]. ARID REGION DOCTRINE. 177 
 
 law than that enacted by himself, under the implied sanction 
 of a just and generous government. And the Act proposed 
 continued the system 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 obli- 
 gation 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 already 
 attached.' These statements of the author of the Act, in advo- 
 cating its adoption cannot of course, control its construction, 
 where there is doubt as to its meaning; but they show the 
 condition of the mining property on the public lands of the 
 United States, and the tenure by which it was held by miners 
 in the absence of legislation on the subject; and thus serve to 
 indicate the probable intention of Congress in the passage of 
 the Act. * * * It was for the purpose of securing rights to 
 water, and rights of way over the public lands to convey it, 
 tvhich were thus recognized, that the ninth section was 
 adopted, and not to grant rights of way where they were not 
 previously recognized by the customary law of miners. "^ 
 
 § 115. Legaf Effect of the Act.— It has been held by the 
 Supreme Court of the United States in a number of cases that 
 this section of the act of Congress of i866 only confirmed to 
 the owners of water rights and of ditches and canals, on the 
 public lands of the United States, the same rights which they 
 held under the local customs, laws and decisions of the courts 
 of the state prior to its passage; and that it was "rather a 
 voluntary recognition of a pre-existing right of possession, 
 constituting a valid claim to its continued use than the estab- 
 lishment of a new one."^ The effect of the first clause of the 
 section was to secure the protection of rights to the use of 
 water for mining, agriculture, manufacturing, or other bene- 
 ficial purposes, acquired by priority of possession, when recog- 
 
 1 Cong. Globe, ist vSess. 39th Gallagher, 20 Wall. 670; Forbes vs. 
 
 Cong. Part IV. pages 3225-3228. Gracey, 94 U. S. 762; Jennison vs. 
 
 2Broder vs. Natoma Water & M. Kirk, 98 U. vS. 453; vSturr vs. Beck, 
 
 Co., loi U. S. 274; Atchison vs. 133 U. S. 541. 
 Peterson, 20 Wall. 507; Basey vs.
 
 178 ARID REGION DOCTRINE. [§ 115 
 
 nized by the local customs, laws and decisions of the Courts; 
 and the second clause, declaring that the rights of way for the 
 construction of ditches and canals to carry water for those pur- 
 poses, "is acknowledged and confirmed," was not held by the 
 Supreme Court of the United States as conferring a right of 
 way independent of such customary law, but only as ac- 
 knowledging and confirming such right as the law gave. Con- 
 struing the clause, "But whenever any person, in the con- 
 struction of any ditch or canal, injures or damages the posses- 
 sion of any settler on the public domain, the party committing 
 such injury or damage shall be liable to the party injured for 
 such injury or damage," the same Court has held that this 
 proviso imposed no additional liabilities on the owners of 
 ditches constructed prior to the Act; but simply rendered the 
 owners liable to parties on the public domain whose posses- 
 sions might be injured by such construction of ditches after 
 the Act. In other words, Congress therein declared, that 
 whenever rights to the use of water by priority of possession 
 had become vested and were recognized by the local customs; 
 laws and decisions of the Courts as such, the owners and pos- 
 sessors should be protected in them; and that the right of wa}'' 
 for ditches and canals incident and necessary »to such water 
 rights, for the purpose of conducting the water to the places 
 where needed, being recognized in the same manner, should 
 also be protected. But where ditches which were constructed 
 subsequent to the passage of the Act injured the possessions 
 of others on the public domain, the owners of such ditches 
 should be liable for the injuries sustained. No other con- 
 struction can be consistent with the general purpose of the 
 Act. This view of the object and meaning of the section was 
 adopted at an early day by the Land Department of the Gov- 
 ernment, and the subsequent legislation of Congress respect- 
 ing the waters and the mineral lands upon the public domain 
 is in harmony with it.^ 
 
 lL,etter of Commissioner Wil- i6 Stat, at L,. 217; Act of Congress 
 
 son, of Nov. 23rd, 1869; Copp's of May loth, 1872, 17 Stat, at L. 
 
 Mining Decisions of the U. S. 91; the United States caSes cited 
 
 21; Acts of Congress Jul}- 9th, 1S70, above.
 
 § 116.] ARID REGIOX DOCTRINE. 179 
 
 § 116. Same— Acts of Congress of July 9th, 1870.— Thus, 
 as we have seen, in following the history of the doctrine, the 
 prior appropriation of the water of a stream or lake upon the 
 public domain, from the very first, after the discovery of gold 
 in California in 1848, secured a title to the water appropriated, 
 which was then considered good as against all the world 
 except the United States Government. And furthermore, the 
 Government, instead of den^dng this right and treating it as 
 non-existing, not only recognized it as having accrued and 
 vested (by its forbearance from interfering and prohibiting 
 these open and notorious acts of appropriation of water), but 
 also, by the Statute of 1866, formally acknowledged the 
 doctrine and made the national ownership of the public 
 domain bordering on a stream or lake subject to the claims 
 and uses of the prior appropriators. And so, the Government 
 having disposed of the waters on its lands, where the same 
 had been actually appropriated, could only give to its 
 patentees, after the Act of 1866, a title to the riparian lands 
 subject to any vested and accrued water rights and rights of 
 way for the construction of ditches and canals.^ This was a 
 consequence which naturally followed from the well settled 
 law of conveyancing. And although there was no reserva- 
 tion clause in the government patents, prior to those issued 
 after the Act of 1870, " wherever the title of the United States 
 to any portion of the public domain was thus burdened the 
 same burden would on general principles accompany the 
 title, if transferred to any subsequent or private owner; who- 
 ever succeeded to the title of the United States, through any 
 mode of acquisition or conveyance, would acquire and hold it, 
 subject to the same servitude which before existed in favor of 
 the prior appropriator." - But it has not been left as a matter 
 of inference. By an Act of July 9th, 1870, Congress in 
 amending the Statute of 1866 provided: " All patents granted, 
 or pre-emption or homesteads allowed, shall be subject to any 
 
 1 Pomeroy on Riparian Rights, Copp's fining Dec, 1873, 1874. 
 
 Sec. 16, 25; Lux vs. Haggin, 69 '-2 Pom. Rip. Rights, Sec. 25; Os- 
 
 Cal. 255; 10 Pac. Rep. 724: Osgood good vs. Kl Dorado W. Co., 56 Cal. 
 
 vs. Water Co., 56 Cal. 671. vScc 671.
 
 180 ARID REGION DOCTRINE. [§ 116-118 
 
 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."^ 
 
 § 117. Same.— Construction of Act of 1870.— All patents 
 which were issued after this last act went into effect contained 
 the following reservation clause: — -" subject to any vested and 
 accrued water-rights for mining, agricultural, manufacturing 
 or other purposes, and rights to ditches and reservoirs used in 
 connection with such water-rights as may be recognized and 
 acknowledged by the local customs, laws and decisions of 
 Courts." It will be seen that this clause embodies the sub- 
 stance of the 9th section of the act of 1866 and the portion 
 quoted from that of 1870, which later act has been construed 
 to be amendatory and declaratory only.'^ The interpretation 
 given this section by the General Land Office is explained in the 
 letter of Commissioner Drummond, dated March 21st, 1872,^ 
 in which he said: " I am satisfied that rights to the use of 
 water for mining, manufacturing, agricultural or other pur- 
 poses, and rights for the construction of ditches and canals 
 used in connection with water rights are fully protected by 
 law; yet, in order that all misapprehension that might exist 
 between the holders or claimants of such rights and such 
 patentee might be set at rest, it was determined in all patents 
 hereafter granted in mineral regions of the United States to 
 insert an additional clause or condition, expressly protecting 
 and reserving such water rights, and making the patent sub- 
 ject thereto, the same as before it was granted." 
 
 § 118. Acts of Congress Svibsequent to 1870.— The general 
 Government has still further sanctioned this doctrine con- 
 cerning the appropriation and use of water in the arid west, 
 
 iSee Revised Statutes of U. S. which is one passed to put an end 
 
 Sec. 2340. to a doubt as to what the law is, 
 
 2 See previous section ii6; Bou- and which declares what it is and 
 
 vier,subject "Declaratory.'' Some- what it has been, i Bla. Com. 86. 
 
 thing which explains or ascertains 3 Copp's U. S. Mineral Lands 2nd 
 
 what before was uncertain or Ed. p. 84. 
 doubtful; as, a declaratory statute,
 
 § 118]. ARID REGION DOCTRINE. 181 
 
 by several recent enactments. On March 3rd, 1877, Congress 
 passed "An Act to provide for the sale of Desert lyands in 
 certain States and Territories," which provided as follows: 
 " Be it enacted, &c., That it shall be lawful for anj^ citizen of 
 the United States, or any person of requisite age ' who may 
 be entitled to become a citizen, and who has filed his declar- 
 ation to become such,' and upon payment of twenty-five cents 
 per acre to file a declaration under oath with the register and 
 receiver of the land district in which any desert land is 
 situated, that he intends to reclaim a tract of desert land not 
 exceeding one section, by conducting water upon the same, 
 within the period of three years thereafter. 
 
 ''Provided, however, that the right to the use of water 
 by the person so conducting the same, on or to any tract of 
 desert land of six hundred and forty acres shall depend upon 
 bona fide prior appropriation; and such right shall not exceed 
 the amount of water actually appropriated, and necessarily 
 used for the purpose of irrigation and reclamation, and all 
 surplus water over and above such actual appropriation and 
 use, together with the waters of all lakes, rivers, and other 
 sources of water supply upon the public lands and not navi- 
 gable, shall remain and be held free for the appropriation and 
 use of the public for irrigation, mining and manufacturing 
 purposes subject to existing rights. 
 
 " Said declaration shall describe particularly said section of 
 land if surveyed, and if unsurveyed, shall describe the same 
 as nearly as possible without a survey. 
 
 "At any time within the period of three years after filing 
 said declaration, upon making satisfactory proof to the regis- 
 ter and receiver of the reclamation of said tract of land in the 
 manner aforesaid, and upon payment to the receiver of the 
 additional sum of one dollar per acre for a tract of land not 
 exceeding six hundred and forty acres to any one person, a 
 patent for the same shall be issued to him. 
 
 "Provided, that no person shall be permitted to enter more 
 than one tract of land and not to exceed six hundred and forty 
 acres, which shall be in compact form. 
 
 " Sec. 2. That all lands exclusive of timber and mineral 
 lands which will not, without irrigation, produce some agri-
 
 182 ARID RECilON DOCTRINE. [§ 118, 119 
 
 cultural crop, shall be deemed desert lands, within the mean- 
 ing of this act, which fact shall be ascertained by proof of two 
 or more creditable witnesses under oath, whose affidavits shall 
 be filed in the land office in which said tract of land may be 
 situated. 
 
 " Sec. 3. That this act shall only apply to and take effect in 
 the States of California, Oregon and Nevada, and the Terri- 
 tories of Washington, Idaho, Montana, Utah, Wyoming, 
 Arizona, New Mexico and Dakota, and the determination of 
 what may be considered desert land shall be subject to the 
 decision and regulation of the Commissioner of the General 
 I^and Office. [March 3, 1877. " ^ 
 
 § 119. Same.— Act of March 3rtl, 1891.— On March 3rd, 
 1891, Congress passed an Act amendatory to the Act of March 
 3rd, 1877, which among other things provided, in Sec. 18, 
 that rights of way were thereby granted to any canal or ditch 
 company formed for the purpose of irrigation, or which might 
 thereafter be orgmiised for that purpose; and in the following 
 section 20, it especially provided that this Act should be 
 applicable to both existing and future canals. The following 
 is a copy of the section which refers to the subject in question: 
 
 " Sec. 18. That the right of way through the public lands 
 and reservations of the United States is hereby granted to any 
 canal or ditch company formed for the purpose of irrigation 
 and duly organized under the laws of any State or Territory, 
 which shall have filed, or maj^ hereafter file, with the Sec- 
 retary of the Interior a copy of its articles of incorporation, 
 and due proof of its organization under the same, to the 
 extent of the ground occupied by the water of the reservoir, 
 and of the canal and its laterals, and fifty feet on each side of 
 the marginal limits thereof; also, the right to take from the 
 public lands adjacent to the canal or ditch, material, earth, 
 and stone necessary for the construction of such canal or 
 ditch; Provided, that no such right of way shall be so located 
 as to interfere with the proper occupation by the government 
 of any such reservation, and all maps of location shall be sub- 
 ject to the approval of the Department of the Government 
 1 Supplement Rev. Stat. U. S. 1S74-1891; p. 137.
 
 § 119.] ARID REGION DOCTRINE. 183 
 
 having jurisdiction of such reservation. And the privilege 
 herein granted shall not be construed to interfere with the 
 control of waters for irrigation and for other purposes under 
 the authority of the respective States and territories. 
 
 "Sec. 19. That any canal or ditch company desiring to 
 secure the benefits of this Act shall, within twelve months 
 after the location of ten miles of its canal, if the same be upon 
 surveyed lands, and if upon unsurveyed lands, within twelve 
 months after the survey thereof by the United States, file with 
 the register of the land ofi5ce for the district where such land 
 is located a map of its canal or ditch and reservoir; and upon 
 the approval thereof of the Secretary of the Interior, the same 
 shall be noted upon the plats in said office, and thereafter all 
 such lands over which such rights of way shall pass shall 
 be disposed of subject to such right of way. 
 
 Whenever any person or corporation in the construction of 
 any canal, ditch, or reservoir, injures or damages the posses- 
 sion of any settler on the public domain, the party committing 
 such injury or damage shall be liable to the party injured for 
 such injury or damage. 
 
 " Sec. 20. That the provisions of this Act shall apply to all 
 canals, ditches, or reservoirs, heretofore or hereafter con- 
 structed, wdiether constructed by corporations, individuals, or 
 associations of individuals, on the filing the certificates and 
 maps herein provided for. If such ditch, canal or reservoir, 
 has been or shall be constructed by an individual or associa- 
 tion of individuals, it shall be sufficient for such individual or 
 association of individuals to file with the Secretary of the 
 Interior, and with the register of the land office where said 
 land is located, a map of the line of such canal, ditch, or 
 reservoir, as in case of a corporation, with the name of the 
 individual owner or owners thereof, together with the articles 
 of association, if any there be. Plats heretofore filed shall 
 have the benefits of this Act from the date of their filing as 
 though filed under it: 
 
 Provided, That if any section of said canal, or ditch, shall 
 not be completed within five years after the location of said 
 section, the rights herein granted shall be forfeited, as to any 
 uncompleted section of said canal, ditch or reservoir, to the
 
 184 ARID REGION DOCTRINE. [§ 119, 120 
 
 extent that the same is not completed at the date of the 
 forfeiture. 
 
 Sec. 21. That nothing in this Act shall authorize such canal 
 or ditch company to occupy such right of way except for the 
 purpose of said canal or ditch, and then only so far as may be 
 necessary for the construction, maintenance, and care of said 
 canal or ditch." ^ 
 
 § 120. Same.— Acts of Congress of 1889 and 1S<MK— For 
 the evident purpose of reclaiming the lands west of the one 
 hundredth meridian, which were then and are now but a bar- 
 ren waste, or covered only with sage brush and grease wood, 
 the government has, since 1885, not only maintained and pro- 
 tected this doctrine concerning the use of water peculiar to the 
 arid west, where such rights were vested and accrued, but has 
 also assumed a more aggressive position, and has enacted laws 
 that more particularly favor and encourage the use of water 
 for the purpose of irrigation. As preliminary to future legis- 
 lation for encouraging the settlement of that section, Congress 
 on the 2nd of March, 1889, enacted the following: 
 
 " Irrigation Survey: — For the purpose of investigating the 
 extent to which the arid region of the United States can be re- 
 deemed by irrigation and the segregation of irrigable lands in 
 such arid region, and for the selection of sites for reservoirs 
 and other hydraulic works necessary for the storage and 
 utilization of water for irrigation and for ascertaining the cost 
 thereof, and the prevention of floods and overflows, and to 
 make the necessary maps, * * * and the Director of the 
 Geological Survey, under the supervision of the Secretary of 
 the Interior, shall make a report to Congress on the first Monday 
 in December of each year showing in detail how the said money 
 has been expended, the amount used for actual surve^^ and en- 
 gineer work in the field in locating sites for reservoirs, and 
 an itemized account of the expenditures under this and any 
 future appropriation. "2 
 
 iSupp. Rev. St. of U. vS. 1891, 698, Part 4; a.s to a similar prior Act 
 p. 946, Sees. 18, 19, 20, 21. see Sup. Rev. St. IT. S. 187 i; P. 
 
 SSupp. Rev. St. U. S. 1891, P. 626, Part 4, afterv.ards repealed.
 
 § 120, 121]. ARID REGION DOCTRINE. 185 
 
 On August 30th, 1890, Congress enacted the following; 
 " That in all patents for lands hereafter taken up under anj' 
 of the land laws of the United States, or on entries or claims 
 validated by the "Act, west of the one hundredth meridian, it 
 shall be expressed that there is reserv^ed from the lands in said 
 patent described a right of way thereon for ditches or canals 
 constructed by the authority of the United States. "^ 
 
 § 121. Future Acts of Congress on tlie Subject.— What the 
 
 future legislation of Congress will be upon the subject of irri- 
 gation remains to be seen. But it may not be considered out 
 of place to say that from the acts and laws recently passed by 
 that body, and from the bills now pending,, it is likely to 
 receive more attention in the future than it has heretofore. 
 The entire region west of the one hundredth meridian was 
 originally divided into Territories, and these Territories, as 
 the population increased, have been admitted into the Union 
 as States. The admission of these States has given the 
 west additional representation in Congress, and more effec- 
 tive legislation may be expected. That such legislation is 
 necessary is unquestionable. Just how far the common law 
 rules, as understood by the English and American authorities, 
 are imfitted for the arid region and the interests peculiar to 
 that part of the country should be settled by enactment. How 
 the millions of acres of arid land in the West can best be re- 
 claimed must be determined; whether it shall be by cession of 
 all the public lands, and waters, to the States and Territories 
 in which they lie, or w^hether by additional Congressional legis- 
 lation for the reclamation of these lands. If either of these 
 methods are chosen, then arises the question of international 
 and interstate waters. The transfer of the arid lands to the 
 States is thought by many to be essential to the complete 
 success of our irrigation system and the fullest development 
 of our agricultural resources. Undoubtedly the land and 
 waters in the public domain, being joint elements necessary 
 to success, should be under one control, and whether this con- 
 trol should be vested in the State in which they are situated 
 or in the United States, as at present, is the pertinent ques- 
 
 1 Sec Sup. to the Rev. St. U. S. 1S91, P. 792.
 
 186 ARID REGION DOCTRINE. [§ 121, 122 
 
 tion. The former method has its advantages, and the latter 
 its disadvantages. If in the beginning of the settlement of 
 the arid region the United States Government had exercised 
 the same supervision over the diversion and use of water that 
 it did over the settlement and acquisition of title to the land 
 there might have been no question as to the wisdom of the 
 Government continuing in the ownership and control of the 
 lands and waters upon the public domain. But its failure to 
 take any steps to secure the economical use of the waters or 
 to protect the rights of parties diverting it and applying it to 
 beneficial uses, has forced upon each State and Territorial 
 government the necessity of exercising such control and super- 
 vision. The result of this has been that these States and 
 Territories have built up their own codes of laws as to these 
 matters, which form the basis and protection of property 
 rights of enormous value and importance. That these laws 
 differ greatly in the different States will be seen in the further 
 discussion of the subject. Any attempt on the part of the 
 United States at this late day to formulate a uniform system 
 of laws for this section would involve the present irrigation 
 interests in untold confusion. On the other hand, should the 
 question be left to the States, they should be given the neces- 
 sary authority and placed in the possession of the resources 
 whereby it can be most speedily and effectually accomplished. 
 The possession of the arid lands will enable the States to ex- 
 ercise a systematic supervision over the diversion and use of 
 unappropriated waters, and will endow them with resources 
 to assist in the construction of storage works for the utiliza- 
 tion of waste waters, and to aid in the construction of works 
 too great in magnitude and cost to be undertaken by private 
 enterprise. 
 
 § 122. Summary. — We have endeavored to show, in this 
 chapter, that the cause of the change from the common law 
 theories upon the subject of waters, in the " Arid Region," 
 spring out of the difference in the physical conditions between 
 that country, where the common law first originated, and 
 those of the "Arid Region." And in following the history 
 of the change, we have seen that these new doctrines, were
 
 § 122.] ARID REGION DOCTRINE. 187 
 
 first enforced by the early California miners, who out of the 
 very necessities of the case, adopted rules and customs, based 
 upon the primary principle of free land, to which discovery 
 and appropriation gave title, which rules and customs gov- 
 erned all questions relative to the title of mining claims and 
 the appropriation of water for working the same; that these 
 new doctrines were first sanctioned by the State legislature of 
 California, afterwards by the Courts of that State, and finally 
 by the Supreme Court of the United States, and Congress; 
 that Congress has not only sanctioned these doctrines, 
 peculiar to this part of the country, and as originating out of 
 the necessities of the early miners, as being applicable to the 
 working of the mines, but also as being lawfully extended to 
 all other beneficial uses or purposes for which water may be 
 essential — to irrigation for the purpose of agriculture and 
 horticulture, to milling, manufacturing and municipal pur- 
 poses, and has passed acts, encouraging those uses of the 
 water, for an}' of these beneficial purposes named. The fun- 
 damental hypothesis of the theory are that the development of 
 that portion of the country known as the "Arid Region," and 
 the general welfare of the people demanded that any one so 
 desiring shall be entitled to apply to beneficial uses, any 
 unemployed water of natural streams; and that the rights 
 acquired in water shall be enjoyed in accordance with the date 
 of acquisition of such rights, priority of date of acquisition 
 giving the better right to such enjoyment. The supporters of 
 this new theory demand from State Legislatures enact- 
 ments defining the rights which may be acquired in water, 
 and providing for the acquisition and enjoyment of these 
 rights, and prescribing penalties for their abuse. They de- 
 mand from Courts decisions concerning water rights which 
 are applicable to the needs and necessities of the people in 
 the "Arid Region," and are supported by reasoning pertinent 
 to the existing climatic conditions, not decisions marred by 
 a forced adherence to precedents applicable, perhaps in 
 other lands or other parts of our own country, but not to the 
 hot, dry, arid region of the west. The laws of the various 
 western States and Territories, as wc shall see in another
 
 188 ARID REGION DOCTRINE. [§ 122 
 
 part of this work, all show the encroachment of this new 
 theory upon the old English common law doctrine, with vary- 
 ing degrees of success. It is another phase of the conflict 
 between conservatism and progress, and the spirit of the 
 times points to the triumph of the new theory.
 
 CHAPTER V. 
 
 Acquisition, Ownership, Disposal of juid Jurisdiction over 
 Lands and Waters by the United States, 
 
 Sections. — 
 
 123. Scope of present chapter. 
 
 I. SOURCE OF TITLE OF GOVERN- 
 MENT I.ANDS AND WATERS. 
 
 124. What are public lands. 
 
 125. Power of the United States to 
 
 acquire lands. 
 
 Same. — Continued. 
 
 How the United States ac- 
 quires land. 
 
 Same — Treaties. 
 
 Same. — Mexico and England. 
 
 Government takes land sub- 
 ject to equitable rights of 
 property therein. 
 
 Same. — Authorities dis- 
 cussed. 
 
 Same. — Same. 
 
 133. Indian title of occupancy. 
 II. DISPOSAI, OF PUBLIC LANDS 
 
 AND WATERS. 
 
 134. Right of the United States to 
 
 dispose of its lands. 
 
 135. Ownership of soil and water 
 
 distinguished. 
 
 136. How the government disposes 
 
 of its lands. — Special Res- 
 ervations. 
 
 126. 
 127. 
 
 128. 
 129. 
 130. 
 
 131- 
 
 132. 
 
 internal im- 
 
 Sections.— 
 
 137. Donations for 
 provements. 
 Same. — Continued. 
 Same. — School lands. 
 Town-site law. 
 
 Pre-existing water rights not 
 effected by Congressional 
 grants. 
 142. Regular disposal through the 
 land office.— Pre-emption. 
 Same. — Homestead — Public 
 Sale— Military Land War- 
 rants. 
 Same — Rights attach when. 
 JURISDICTION OVER PUBLIC 
 LANDS AND WATERS. 
 
 145. Jurisdiction of appropriation 
 
 of water upon the pul)lic 
 domain. 
 
 146. Lex Loci Sitae. After title 
 
 has passed from the govern- 
 ment. 
 
 147. Grantee takes subject to con- 
 
 ditions annexed to grant. 
 
 148. Same — Continued, same au- 
 
 thorities. 
 
 138. 
 
 139- 
 140. 
 141. 
 
 143- 
 
 144. 
 Ill 
 
 §123. Scope of Present Chapter. — It is necessar)- at this 
 point in our work, in order to get at the very foundation of 
 the title to the waters of the " arid region " to go back, and 
 trace the source of title to the same, to the time of their
 
 190 JURISDICTION OVER [§ 123, 124 
 
 acquisition by the Government of the United States; and as 
 this can only be done, in connection with the lands over which 
 they flow, the two will be treated together in the present 
 chapter. And it is proposed in this chapter to consider only 
 such lands and waters as are, or were at one time, the property 
 of the United States. The principles governing the law 
 relating to lands and waters belonging to the iudi-vidual States 
 will be treated of in Part II of this volume. And for the 
 purposes of this chapter, when the terms "public lands" or 
 "public domain" are used, they are meant to include not 
 only the soil, but also the waters from any source upon the 
 same, although thej' may not be specifically mentioned. We 
 will devote the chapter to a discussion of how the United 
 States acquired its public lands and waters, the title acquired 
 thereto, and the disposal thereof. Also a discussion as to the 
 jurisdiction over the lands and waters upon the public domain 
 of the United States. 
 
 I. Source of Title of Government Lands and Waters. 
 
 §121. What are PuMc Lands. — The term "public 
 domain" in its broadest sense comprehends all lands and 
 waters in the possession or ownership of the United States, 
 and including lands owned by the several States, as distin- 
 guished from lands possessed bj'' private individuals or cor- 
 porations. The term "public lands" only embodies such 
 lands as are subject to the sale or other disposition by the 
 United States under general laws.^ It is a well settled prin- 
 ciple that land once reserved by the Government or appropri- 
 ated for any special purpose, ceases to be a part of the public 
 lands, and in all grants or proclamations, declaring public 
 lands open to settlement, the portion already reserved is 
 always excepted, though the exception is not specifically 
 mentioned.^ The rule is also well settled by a long line of 
 
 iNewhall vs. Sanger, 92 U. S. 2 Wilcox vs. Jackson, 13 Peters 
 
 766; Wirth vs. Bronsou, 98 U. S. 49S; Recher vs. Weatherby, 95 U. 
 
 118; Heydenfeldt vs. Daney Gold S. 517; I,eavenworth etc. Ry. Co. 
 
 M. Co., 10 Nev. 290; Anderson's vs. U. S., 92 U. S. 733; United 
 
 Law Diet. Sub. Public Land; Bou- States vs. Stone, 2 Wall. 525. 
 vier's Law Diet. Sub. Public Land.
 
 § 124, 125.J LANDS AND WATERS. 191 
 
 decisions, that when public lands have been surveyed and 
 placed on the market, or otherwise opened to private acquisi- 
 tion, a person who complies with all the requisites necessary 
 to entitle him to a patent in a particular lot or tract is to be 
 regarded as the equitable owner thereof, and the land- is no 
 longer public or open to location.^ 
 
 No lands, wherein the Indian right to occupancy has not 
 been extinguished, are public.^ The United States as pro- 
 prietor merely, also owns and holds certain public lands within 
 the boundaries of the several States, that have been acquired 
 by cession, from individual States, and by treaties with 
 Indians and other nations, and are possessed by virtue of the 
 power vested by the Constitution. In fact, a large portion of 
 the public domain, owned b}' the United States, is within the 
 confines of the several States. 
 
 § 125. Power of tlie United States to Acquire Lands. — The 
 
 right of the Federal Government to acquire lands is sustained 
 by several decisions of the Supreme Court of the United States, 
 as a necessary accompaniment of the power to make treaties. 
 The authority given by the Constitution is, that the President of 
 the United States ' 'shall have power, by and with the advice and 
 
 1 Wirth vs. Branson, 98 U. S. 119, with the public lauds, as equiva- 
 
 where the Court held, that when lent to a patent issued; and when, 
 
 public lands have been open to in fact the patent does issue, it 
 
 private acquisition, a person who relates back to the inception of 
 
 complies with all the requisites to the right of the patentee, so far as 
 
 entitle him to a patent in a par- it may be necessary to cut off in- 
 
 ticular lot, is to be regarded as the tervening claims, 
 equitable owner thereof, and the See also Frisbie vs. Whitney', 9 
 
 lan<l is no longer open to location; Wall. 1S7; Yosemite Valley Case, 
 
 and that the public faith had be- 15 Wall. 77; Railroad Co. vs. Mc- 
 
 come pledged to him, and any sub- Shane, 22 Wall. 444; Shipley vs. 
 
 sequent grant of the land to Cowan, 91 U. S. 330. 
 another party is void, unless the 2 Leavenworth, etc., R}'. Co. vs. 
 
 first location or entry be vacated U. S., 92 U. S. 723; where it was 
 
 and set aside. held that the Indians have the 
 
 Lytte vs. Arkansas, 9 How. 314; unquestionable right to the lands 
 
 Stark vs. Starr, 6 Wallace 402; they occupy, until it be extin- 
 
 where it was held that the right guished by a voluntary cession to 
 
 to a patent once vested, is treated the Government. United States 
 
 by the Government, when dealing vs. Carpenter, in U. S. 347.
 
 192 
 
 JURISDICTION OVER 
 
 [§125 
 
 consent of the Senate, to make treaties, provided two-thirds of 
 the Senators present concur."^ From this it may be readily 
 seen, the power to make treaties is given in general terms, by the 
 Constitution, without any description of the objects intended 
 to be embraced by it; and consequently, it was designed to in- 
 clude all those questions, which in the ordinary intercourse 
 of nations, are usually made subjects of negotiations and treat}', 
 and which are consistent with the nature of our institutions, 
 and with the relation between the States and the United 
 States. And since the acquisition and disposal of territory 
 between nations is one of the most common subjects of ordinary 
 intercourse, it follows that the treaty-making power of the 
 United States has authority to make negotiations with other 
 nations concerning the acquisition of additional territory by 
 purchase or otherwise.- 
 
 1 Constitution of the United 
 States, Art. 2, Sec. 2, CI. 2. 
 
 2 See upon subject of treaty- 
 making power, Holmes vs. Jenni- 
 son, 14 Pet. 540; Holden vs. Joy. i7 
 Wal. 211. 
 
 Amer. Ins. Co. vs. 365 Bales of 
 Cotton, I Peters, 511, where it was 
 held that the Constitution of the 
 United States confers absolutely 
 on the government of the Union 
 the power of making war and of 
 making treaties^ Consequently, 
 that Government possesses the 
 power of acguiritig territory, 
 either by conquest or by treaty. 
 
 I Kent Comm. 165, 166; Story 
 Const. Sec. 1508, and cases cited; 
 annals of Congress, 14 Cong, ist 
 Session, 1815, 1S16, pp. 489, 526, 
 564, 539; Works of Hamilton, i 
 Vol. pp. 501-528; annals of Con- 
 gress, 4 Cong, rst Sess. 1795, 1796, 
 P. 760; Calhoun's Works, P. 202; 
 People vs. Gerke & Clark, 5 Cal. 
 381, 384; Duer Const. Jur., P. 228, 
 etseq.: Ware vs. Hilton et al., 3 
 Dall. 199; Marbury vs. Madison, i 
 
 Cranch, 137; F'oster & Elam vs 
 Neilsou, 2 Pet. 253. 
 
 Cherokee Nation vs. Georgia, 5 
 Pet. I, where it was held that: 
 The Cherokees are a State. They 
 have been uniformly treated as a 
 State since the settlement of our 
 country. The numerous treaties 
 made with them by the United 
 States recognizes them as a peo- 
 ple capable of maintaining the re- 
 lations of peace and war; of being 
 responsible in their political char- 
 acter for any violations of their 
 engagements or for any aggres- 
 sions committed on the citizens of 
 the United States by any individ- 
 ual of their community. Laws 
 have been enacted in the spirit of 
 these treaties. The Acts of our 
 Government plainly recognizes 
 the Cherokee Nation as a State, 
 and the courts are bound by these 
 Acts. 
 
 Patterson vs. Winn, et al., 5 Pet. 
 233; Worcester vs. State of Geor- 
 gia, 6 Pet. 515: City of New Or- 
 leans vs. De Armas et al., q Pet.
 
 § 126]. 
 
 LANDS AND WATERS. 
 
 193 
 
 § 12<>. Same— CoutiimtMl.— It was by the treaty-making 
 power alone that the United States had the authority to ac- 
 quire the Louisiana lands. In 1803 the United States Minis- 
 ter to France conducted a treaty with Napoleon the First, 
 whereby the immense Territory of Louisiana was to be ceded 
 to the United States upon the payment of $15,000,000. The 
 treaty was sent to the Senate by President JeflFerson for ratifi- 
 cation, and in his accompanying message he advised that 
 it be adopted without debate, which has been taken by some 
 to clearly indicate that he believed the United States Gov- 
 ernment had no power under the Constitution to acquire land. 
 Such an opportunity was not to be lost and the Senate rat- 
 ified the treaty in compliance with the message of the Presi- 
 dent. But later this view of Mr. Jefferson has been clearly 
 shown, under the cases cited, to be erroneous, on the ground 
 that the authority to acquire land is one of the most neces- 
 sary and essential accompaniments of the treaty making.^ 
 
 224; 2 Bryce's American Common- 
 wealth, 62. 
 
 1 Ibid. 2 Br3'ce's American Com- 
 monwealth, 62; Cooley's Louisi- 
 ana Purchase. As to the relative 
 extent of the power of Congress 
 and of the treaty making power, 
 see Fostoer vs. Neilson, 2 Pet. 
 314, in which Chief Justice Mar- 
 shall in delivering the opinion of 
 the Court said: "A treaty is in its 
 nature a contract between two 
 nations, not a Legislative Act. It 
 does not generally effect, of itself, 
 the object to be accomplished, es- 
 pecially so far as its operation is 
 infraterritorial; but is carried in- 
 to execution by the sovereign 
 power of respective parties to the 
 instrument. In the United States 
 a different principle is established. 
 Our Constitution declares a treaty 
 to be the law of the land. It is, 
 consequently, to be regarded in 
 Courts of Justice as equivalent 
 
 to an Act of Legislature, when- 
 ever it operates of itself without 
 the aid of any legislative provi- 
 sion. But when the terms of the 
 stipulation impart a contract — 
 when either of the parties engaged 
 to perform a certain, a peculiar 
 Act — the treaty addresses itself to 
 the political, not the judicial de- 
 partment ; and the Legislature 
 must execute the contract before 
 it can become a rule for the 
 Court." 
 
 See also on this subiect, Chero- 
 kee Nation vs. Georgia, 5 Pet. i, 
 46; United States vs. Arredondo, 
 6 Pet. 691, 735; Williams vs. Suf- 
 folk Ins. Co., 13 Pet. 420; Lattimer 
 vs. Poteet, 14 Pet. 4, 15; Pollard's 
 Lessee vs. P^iles, 2 How. 602; Pol- 
 lard's Lessee vs. Ilagan, 3 How. 
 228; Luther vs. Borden, 7 How. 
 I, 56; La Roche vs. Jones, 9 How. 
 127, 154; I'ellows vs. Blacksmith, 
 19 How. 366, 372; United Stat.se
 
 194 • JURISDICTION OVER [§ 126. 127 
 
 And it has also been held by the Supreme Court from the 
 very foundation of the Government, that the United States 
 could dispose of the fee simple to the public lands; hence a 
 fortiori, the government must have a perfect right and title 
 to the same before it could so dispose of them. ^ 
 
 § 127. How the United States Acquires Lands. — In order 
 that one may obtain a clearer understanding of the general 
 source of title of the United States to lands and waters this 
 subject will be very briefly traced. 
 
 The English possessions in America were not claimed by 
 right of contest, but by right of discovery; and all discoveries 
 made by persons acting under the authority of that govern- 
 ment were for the benefit of that nation, and not for the bene- 
 fit of such persons individually. The same may be said rela- 
 tive to sections of the country discovered by individuals under 
 the authorit}^ of other European nations, that the lands dis- 
 covered were for the benefit of the respective nations. And, 
 according to the principles of international law, as then un- 
 derstood by the civilized powers of Europe, the Indian tribes, 
 in the New World, were regarded as mere temporary occu- 
 pants of the soil; and the absolute rights of property and do- 
 minion were held to belong to the European nations by which 
 any particular portion of the country was first disco vered.^ 
 And whatever forbearance may have been sometimes prac- 
 ticed towards the unfortunate aborigines, either from human- 
 ity or policy, yet the territory they occupied was disposed of 
 by the governments of Europe at their pleasure, as if it had 
 been found entirely uninhabited. The Revolution having taken 
 place b}^ which the power of England over the colonies was 
 shaken off by the treaty of 1783, the English possessions in 
 
 vs. Andres Sastellero, 2 Black. 320; 119 U. S. 55; Beecher vs. Weath- 
 
 Phillips vs. Payne, 2 Otto. 130; erby 95 U. S. 517, 525, where the 
 
 United States vs. Forty-three Gal- Court held, that the right of the 
 
 Ions of Whiskey, 3 Otto, 188, 196; United States to dispose of the fee 
 
 Hawenstein vs. Lynham, 10 Otto, of lands occupied by the Indian 
 
 490; U. S. Const. Art. 6, CI. 2; tribes, has always been recognized 
 
 Dred Scott vs. Sandford, 19 How. by that Court from the foundation 
 
 630. of the Government. 
 
 iButz vs. Northern Pac. Ry. Co., 2 Martin et al. vs. Lessee of
 
 § 127]. LANDS AND WATERS. 195 
 
 that territory, which is now included within the boundaries of 
 the United States, became the property of the several States, 
 from the fact that they were united, at that time, only by the 
 Articles of Confederation, and the Federal Government had 
 not been formed. And afterwards several of the thirteen orig- 
 inal States claimed the title to vast tracts of territory, which 
 extended far into the interior and equaled in several cases, 
 many times the present size of the State laying claim to the 
 same. Thus Virginia, at one time, laid claim to all territory 
 north and west of the Ohio River. Afterwards this land was 
 ceded by New York, Virginia, Massachusetts and Connecticut 
 to the United States, and the Northwest Territorial Govern- 
 ment was organized, from which the States of Ohio, Indiana, 
 Illinois, Michigan and part of Minnesota were formed.^ After 
 the adoption of the Constitution many of the original States 
 ceded vast tracts of lands to the United States which lands be- 
 came a part of the public domain, to which the general gov- 
 ernment held the fee by force of the deeds of cession, the Con- 
 stitution and by the statutes enacted for that purpose. By 
 this means the Government became simply the proprietor of 
 these lands and now holds them only as such proprietor where 
 they are located in the States created out of the territory ceded 
 to it, and not b}' any municipal sovereignty or right of emi- 
 nent domain which it may be supposed that it possessed.^ 
 
 Thus one method by which the United States acquires land 
 is by cession of the same by the individual States. 
 
 Waddell, i6 Peters, 367; Johnson force of the deeds of cession and 
 
 vs. Mcintosh, 8 Wheat. 575. the statutes connected with them, 
 
 iLangdeauvs. Haines, 21 Wall. and not by any municipal sover- 
 
 521; Morton vs. Nebraska, 21 Wall. eignty, which it may be supposed 
 
 660. See also Wallace vs. Parker, 6 they possess or have received by 
 
 Peters, 680; Jones vs. Van Zant, 5 compact with the new States for 
 
 How. 215; Strader et al. vs. Gra- that particular purpose, 
 
 ham, 10 How. 82; Penn. vs. Wheel- Clark vs. Smith, 13 Pet. 195; U. 
 
 ing Bridge Co., 18 How. 421; Bates S. vs. Gratiot, 14 Pet. 526; Fort 
 
 vs. Brown, 5 Wal. 710; Messinger Leavenworth, etc., Ry. Co. vs. 
 
 vs. Mason, 10 Wal. 507; Clinton vs. Lowe, 114 U.S. 525: Bagnel vs. 
 
 Englebrecht, 13 Wall. 434. Broderick, 13 Pet. 436; U. S. vs. 
 
 2Polard vs. Hagan, 3 How. 212. Maxwell Land Grant, 121 U. S. 
 
 The United States now holds the 325; U. S. vs. Repentigny, 5 Wall, 
 
 public lands in the new States by 211; McMicken vs. U. S., 97 U. S.
 
 196 
 
 JURISDICTION OVER 
 
 [§128 
 
 § 128. Same. — Treaties. — Other tracts of land which are 
 now included in the public domain of the United States have 
 been acquired by treaties with, and b^^ purchases from, other 
 countries. In 1803 France ceded to the United States, for 
 the sum of fifteen million dollars, all that territory which now 
 forms the State of lyouisiana, parts of Alabama and Missis- 
 sippi, all of Arkansas, Missouri, Iowa, part of Minnesota, all 
 of Dakota, Nebraska, Kansas, part of Indian Territory, and 
 parts of Montana, Wj^oming and Colorado. And as Spain 
 also laid claim to part of this territory between the Missis- 
 sippi and Perdido Rivers wrongfully, as the United States 
 contended, in the year 1810 President Madison issued a 
 proclamation directing the forcible occupation and possession 
 of this territory by the United States, and possession was 
 accordingly taken. ^ 
 
 204; Schulenburg vs. Hariman, 21 
 Wal. 44; Farnsworth vs. Min. Ry. 
 Co., 92 U. S. 49; Martin vs. Wad- 
 dell, 16 Pet. 367; U. S. vs. Kaj^ana, 
 118 U. S. 375; Johnson vs. Mcln- 
 tosli, 8 Wheat. 543; Fletcher vs. 
 Peck, 6 Cranch, 77; i Kent's Com., 
 
 257, 259- 
 
 1 On the first of October, 1800, 
 a secret treaty was made at St. 
 Ildefonso between Spain and 
 Bonaparte, then First Consul, by 
 which Spain agreed, on certain 
 conditions to be performed, to ret- 
 rocede to the French Republic, 
 "the Colony or Province of Louisi- 
 ana, with the same extent that it 
 now has, in the hands of Spain, 
 and that it had when France pos- 
 sessed it, and such as it ought to 
 be after the treaties subsequently 
 entered into, between Spain and 
 the other States." The ambiguity 
 of the last expression w^as the 
 cause of the subsequent misunder- 
 standing between Spain and the 
 United States. Did it mean that 
 Spain was to retrocede to France, 
 
 all the territory which the latter 
 had formerly possessed, under the 
 name of Louisiana, or only so 
 much as remained after the sepa- 
 ration of West Florida therefrom 
 and the cession thereof to Great 
 Britain? The United States con- 
 tended for the former construction 
 and Spain for the latter. 
 
 As to the construction of the 
 United States Supreme Court 
 tipon the subject of the Spanish 
 title to these lands, after the treaty 
 of Ildefonso see i. 
 
 United States vs. Rynes, 9 How. 
 127; Davis vs. Police Jury of Con- 
 cordia, 9 How. 280; United States 
 vs. Lynde's Heirs, 11 Wall. 632; 
 New Orleans vs. DeArmas, 9 Pet. 
 224; Foster vs. Neilson, 2 Peters 
 253; Arredondo Case, 6 Peters, 691; 
 United States vs. Percheman, 7 
 Peters, 51; United States vs. D'Au- 
 terive, 10 How. 609; United States 
 vs. Philadelphia & New Orleans, 
 II How. 609; Montault vs. United 
 States, 12 How. 47; United States 
 vs. Constant, 12 How. 437.
 
 § 128, 129J. LANDS AND WATERS. 197 
 
 Oil February 22nd, 1821, Spain in consideration of the as- 
 sumption b\' the United States of claims against that Govern- 
 ment of certain citizens of this Government, to an amount not 
 exceeding the sum of five million dollars and the exoneration 
 of Spain from all demands in the future, on account of such 
 claims, ceded to the United States the Floridas and all interests 
 that she claimed in the disputed portion of Louisiana, formerly 
 ceded by France. Out of this tract of land the present State 
 of Florida was formed.^ 
 
 §129. Same— Mexico and Eiijjjlaiid.— In 1848 Mexico, by 
 the treaty of Guadalupe Hidalgo, ceded to the United 
 States the tracts of land embracing the Pacific highlands, 
 from the Gila River to the 42° parallel, and from the Texas 
 border and Rocky Mountains to the Pacific Ocean. ^' After- 
 wards Mexico sold to the United States the Messilla Valley, 
 south of the Gila River to the present southern boundary of 
 the United States, by what is known as the Gadsden Purchase, 
 the consideration being the sum of ten million dollars. 
 
 In 1846, by a compromise with England, the northwest 
 corner of the United States was added to the public domain. 
 Both countries claimed the tract by right of discovery. And, 
 in the negotiations pending the settlement of the dividing 
 line, England demanded that the Columbia River be the 
 division, while the United States demanded the "54° 40', or 
 fight." When, however, England agreed to an extension of 
 the dividing line, which had been fixed east of the mountains 
 of the 49° to the Pacific, the government assented, rather 
 than contend for territory of which we had little knowledge, 
 and the 49° was then agreed upon. 
 
 This will suffice to show how the United States became pos- 
 sessed of her public domain, although there were other grants 
 of lands of minor importance. 
 
 UJniteclvStatesvs. Lynde's Heirs, which, prior thereto, in 1835, had 
 
 II Wall. 632; United .States vs. De declared its own freedom as "The 
 
 Amistad, 15 Peters, 518; Coniegys Republic of Texas," and in 1845 
 
 vs. Vasse, i Peters, 193; Meade vs. was annexed to the United States. 
 
 United States, 15 Wall. 69S. McKinney vs. Savieji^o, 18 How. 
 
 SThis treaty, however, did not 235; Viisse vs. Brownsville, 20 
 
 refer to any ])ortion of Texas, Wall. L. D. 420.
 
 198 JURISDICTION OVER [§ 130 
 
 § 130. GoTeriiment Takes Lands Subject to Equitable 
 Rights of Private Property Tlierein. — The United States 
 took the fee to all lands acquired by cession from the various 
 States and countries, subject to two reservations, whether 
 named specificallj^ in the treaty or grant or otherwise: First, 
 All bona fide grants to individuals, prior to the treaty or deed 
 of cession, by the State or country' then owning the land; 
 and, second, the Indian title of occupancy. In regard to the 
 first class, all the tracts granted, although at that time com- 
 paratively sparsely populated, were dotted over with land 
 claims of private individuals. And the rights to private 
 property, whether they consisted of the soil or in rights of 
 waters, or both, were not impaired by the change of sover- 
 eignty and jurisdiction. They were fully secured by the law 
 of nations, and generally by treaty stipulations; and the 
 United States has always honored and protected all valid 
 claims of this nature. The ownership of so much of the soil, 
 or to certain rights of water, as was vested in an individual 
 proprietorship, prior to the grant, did not pass to the Govern- 
 ment. It only took the land subject to all equitable rights of 
 private property therein which existed at the time of the 
 transfer. Valid claims to lands or waters, or both, whether 
 grounded upon an inchoate or perfected title were ascertained 
 and adequately protected. This dut}^ enjoined by a sense of 
 natural justice and by treaty obligations, could only be dis- 
 charged by prohibiting any intrusion whatever upon the 
 claimed lands or water rights until an opportunity was 
 afforded the parties in interest for a judicial hearing and 
 determination. As was expected, many unfounded and fraud- 
 ulent claims would be presented for confirmation , and as there 
 was no way of separating them from those which were valid, 
 without an investigation by a competent tribunal, Congress 
 therefore shaped our legislation so that all lands to which 
 a claim was attached should, until it was barred or passed 
 upon, be excluded from any mode of acquiring them.^ 
 
 1 See Acts of Congress i8ii, 2 the boundaries of an alleged Mex- 
 
 Stat. at L. pp. 664, 665, Sec. 6, 10. lean or Spanish grant, which were 
 
 In Newhall vs. Sanger, 92 U. S. then sub judice are not public 
 
 761, it was held, that lands within within the meaning of the Acts of
 
 § 131]. LANDS AXD WATERS. 199 
 
 § 131. Same.— Authorities Discussed. — Hence all lands to 
 which there was a claim of the nature described in the last 
 section did not become a part of the public domain of the 
 United States unless the claim was settled adversely to the 
 claimant. lu the case of the United States vs. Arredondo et 
 al.,^ decided in 1832, the Court said: "The United States 
 seem never to have claimed any part of what could be shown 
 by legal evidence and local law to have been severed from the 
 royal domain before their right attached," * * * "The 
 United States have by three cessions acquired territory, 
 within which there have been many private claims to land 
 under Spanish titles. The first in point of time was by the 
 compact with Georgia, in 1802, by the terms of which it was 
 stipulated 'that all persons who, on the 27th of October, 1795, 
 were actual settlers within the Territory thus ceded, shall be 
 confirmed in all their grants, legally and fully executed prior 
 to that day, by the former British Government of West Florida, 
 or by the Government of Spain.' The stipulations of 
 the treaties by which they acquired Louisiana and Florida 
 contained provisions of a similar nature as to claims to land 
 under Spain before the cession. The whole legislation of Con- 
 gress from 1803 to 1828, in relation to the three classes of 
 cases, so far as respected Spanish titles, is of an uniform char- 
 Congress, under which the patent and consequentl)' as against the 
 whereon the appellee's title rests. United States, though the particu- 
 was issued; and to ante date the lar tract had not been designated 
 judicial rejection of a claim so as by a survey at the time of the 
 to render operative a grant which cession to the United vStates; and 
 would otherwise be without effect, the particular land to which this 
 cannot be sanctioned. title is to attach, must be ascer- 
 
 See Fremont vs. The United tained by a survey made under 
 States, 17 How. 542, where it was the authority and in the mode 
 held that: A grant by the Mexican provided by the laws of the Unileil 
 Governor of California of ten vStates. 
 
 square leagues of land within a See also the United States vs. 
 
 certain district of country in con^ Arredondo, 6 Peters, 691, 716; 
 sideration of meritorious service Menard vs. Massey, 8 How. 293; 
 of the grantee, conferred an equi- Glenn vs. United vStates, 13 How. 
 table right to that quantity of 250; DeV'ilemonte's Case, 13 How. 
 land within that district, valid as 266. 
 against the Mexican Government, 16 Peters, 717.
 
 200 JURISDICTION OVER [§ 131, 132 
 
 acter on cases of a corresponding description. The rules vary 
 according to the kind of title set up; distinctions have been 
 made in all the laws between pefect or complete grants, fully 
 executed or inchoate incomplete ones, where a right had been 
 in its inception, under or by color of local law or authority, 
 but required some Act of the government to be done to com- 
 plete it. Both classes have been submitted to the special trib- 
 unals appointed to settle, to report finally or specially upon 
 them and the claimants have under certain circumstances, 
 been permitted to assert their rights in Court by various 
 laws, similar in their general character, but varying in detail 
 to meet the case provided for." ^ 
 
 § 13*2. Same. — Same. — In the case of Woodruff vs. North 
 Bloomfield Gravel Min. Co.,- Mr. Justice Sawyer said: "A cus- 
 tom or usage attempted to be established whereby mining debris 
 might be sent down to the valleys, devastating the lands of 
 private owners, holding titles in fee from the Mexican Govern- 
 ment, as old as the title of the United States, without first ac- 
 quiring the right to do so, by purchase or other lawful means 
 upon compensation paid, would be in direct violation both of 
 the laws and constitution of the State and of the Constitution 
 
 iSee also Huff vs. Doyle, 93 U. the tribunals and officers of the 
 S. 546; R^-an vs. Railroad Co., 99 United States. 
 U. S. 387; Quinn vs. Chapman, iii Irvin vs. Marshall, 20 How. 558. 
 U. S. 446: It was held that where The term "property" in the treaty 
 land claimed as a part of a Mexi- by which the United States ac- 
 can grant was, by the final survey quired Louisiana, comprehends 
 of the confirmed grant, ascer- every species of title, inchoate or 
 tained not to be a part of that complete, legal or equitable, and 
 grant, it then became subject to embraces rights which lie in con- 
 entry and pre-emption for the tract executory as w^ell as exe- 
 first time. cuted. 
 
 Newhall vs. Sanger, 92 U. S. Bryan vs. Kennett, 113 U. S. 179; 
 761; Van Reynegan vs. Bolton, 95 Soulard vs. U. S., 4 Pet. 511; 
 U. S. 33: Where it was held that Tameling vs. United States Free- 
 lands claimed by Mexican grants hold, etc., 93 U. S. 644; Delassus 
 in California are excluded from vs. U. S., 9 Pet. 117; Maxwell 
 settlement under the pre-emption Land Grant, 121 U. S. 325; Smith 
 laws, so long as the claims of the vs. United States, 10 Pet. 326; 
 grantees remain undetermined by Slidell vs. Grandjeau, iii U. S. 412, 
 
 2 Sawyer 533; 18 Fed. Rep. 801.
 
 § 132, 133 J. LAND? AND WATERS. 201 
 
 of the United States. Instead of being authorized by the 
 statute, it would be in direct violation of the statute. It would 
 also be in direct violation of the express provisions of the 
 statutes defining nuisances already cited." 
 
 The same principle applies to property rights in waters ac- 
 quired under Mexican laws, before California and other por- 
 tions of the arid region were acquired by the United States. 
 They are entitled to complete protection under our laws.^ 
 
 § 133. Indian Title of Occupancy.— The right of the United 
 States to dispose of the lands thus acquired, as a part of the 
 public domain, is subject to the Indian right of occupancy. 
 The legal title to these lands is in the United States, and is 
 founded on the discovery and grant to the government, from 
 the various vStates and other countries. But it is held by the 
 highest authority in the land that a grant from the United 
 States made before the extinguishment of the Indian right, 
 remains subject to that right, but the title becomes absolute 
 in the grantee, whenever the Indian right is extinguished.- 
 
 Chancellor Kent in Vol. i, of his Commentaries, p. 258, 
 says on this subject of Indian titles: "The title is in the 
 United States by the treaty of peace with Great Britain, and 
 by subsequent cessions from France and Spain^ and by ces- 
 sions from the individual States; and the Indians have only 
 a right of occupancy, and the United States possess the legal 
 title subject to that occupancy, and with an absolute and exclu- 
 sive right to extinguish the Indian title of occupancy, either by 
 conquest or purchase. The title of the European nations, and 
 which passed to the United States, to this immense territorial 
 empire, was founded on discovery and conquest; and, by the 
 European customary law of nations, prior discovery gave this 
 title to the soil , subject to the possessory rights of the na- 
 tives, and which occupancy was all the right that European 
 conquerors and discoverers, and which the United States, as 
 
 1 Lux vs. Haj^j,nn, 69 Cal. 255; 10 543; lUittz vs. North. Pac. Ry. Co., 
 
 Pac. Rep. 654; .see vSecs. 289, 292, 119 U. vS. 55; Thoinpsou vs. Doak- 
 
 and cases cited; Ilaj^ar Rcclania- sum, 68 Cal. 595; Fletcher vs. 
 
 lion Dist. No. 108, iii U. S. 701. Peck, 6 Crancli, 86; Beecher vs. 
 
 2Clark vs. vSinith, 13 Pet. 195; Wether];y, 95 U. S. 517. 
 Johnson vs. Mcintosh, 8 Wheat.
 
 202 JURISDICTION OVER [§ 133 
 
 succeeding to their title, would admit to reside in the native 
 Indians. The principle is, that the Indians are to be consid- 
 ered merely as occupants, to be protected while in peace in 
 possession of their lands, but to be deemed incapable of trans- 
 ferring the absolute title to any other than the sovereign of the 
 country." And as the Indians only hold the right of occu- 
 pancy, it has been held by the Supreme Court that grants of 
 lands to private individuals made by Indian tribes can not be 
 recognized in the Courts of the United States,^ unless the pur- 
 chases were made at Indian treaties, held by the authority of, 
 and ratified by the United States.^ And it has also been de- 
 cided by the same authority that the Indians have the unques- 
 tionable right to the lands which they occupy, until it shall 
 be extinguished by a voluntary cession to the government;^ 
 and that until their title shall have been extinguished, the In- 
 dian lands are not open to settlement.^ And, as a treaty with 
 an Indian tribe is, under the Constitution, the supreme law of 
 the land, the above principle is especially true where lands have 
 been reserved for the use of an Indian tribe by treaty. And the 
 treaty is notice that the land will be retained by the Govern- 
 ment for the use of the Indians, and this purpose can not be 
 
 ijohnsoii et al vs. Mcintosh, S United States vs. Cook, 19 Wall. 
 
 Wheat. 543; United States vs. Ril- 591; Cherokee Nation vs. Georgia, 
 
 lieux, 14 How. 189; United States 5 Peters, i; Jackson vs. Hudson, 3 
 
 vs. Gusman, 14 How. 193; The Johns. 375. 
 
 Cherokee Tobacco, 11 Wall. 619; 4 Rector vs. United States, 92 U. 
 
 United States vs. Cook, 19 Wal. S. 698; United States vs. Carpen- 
 
 593. ter. III U. S. 347- 
 
 2 And in that case it has been United States vs. Cook, 19 Wall, 
 held to be good without any patent 591 , where the Court held that 
 to the purchaser from the United this right of occupancy was as 
 States. sacred as the title of the United 
 
 Mitchell vs. United States, 9 Pet. States to the fee. 
 
 711; Mitchell et al vs. United Johnson vs. Mcintosh, 8 Wheat. 
 
 States, 15 Pet. 52. 543; Wilcox vs. Jackson, 13 Peters, 
 
 3 Leavenworth, etc., Ry. Co. vs. 498; Clark vs. Smith, 13 Pet. 195; 
 United States, 92 U. S. 733; Mis- Spaulding vs. Martin, 11 Wis. 274; 
 souri, etc., Ry. Co. vs. U. S., 92 U. Dubuque Ry. Co. vs. Des Moines 
 S. 76; United States vs. Forty- Ry. Co., 109 U. S. 334; United 
 three gallons of Whiskey, 93 U. S. States vs. Payne, 2 McCrary, 289. 
 188; Clark vs. Brown, 95 U. S. 204;
 
 § 133, 134] LANDS AND WATERS. 203 
 
 defeated by the action of any officers of the General Land 
 Office. 1 
 
 II. Disposal of Public Lands and Waters. 
 
 § 134. Rii^ht of the United States to Dispose of its Lands.— 
 
 All lands and waters upon the public domain of the United 
 States, not appropriated before they were acquired by this 
 Government, are the exclusive property of the United States, 
 to be disposed of to such persons, at such times, and in such 
 modes, and b}' such title, as the Government b}' its Congress 
 may deem most advantageous. This principle has been 
 recognized b}^ the Courts from the very foimdation of the 
 Government.- The Government of the United States has a 
 perfect title to the public land and an absolute and unqualified 
 right of disposal. Neither State nor Territorial legislation 
 can, in any manner, modify or affect the right which the 
 Government has to the primary disposal of the public land.^ 
 And we have seen that even the Indian lands may be sold 
 before the extinguishment of their right to occupy the same, 
 but subject to that right, and the legal title becomes absolute 
 in the grantee, whenever the Indian right is extinguished.* 
 The possession when abandoned by the Indians, attaches 
 itself to the fee without further grant. However it is true, 
 that before the abandonment by the Indians, the grantee only 
 takes the naked fee, and can not disturb the occupancy of the 
 Indians; that occupancy can only be interfered with or deter- 
 mined by the United States. ■'• The power of the Government 
 to dispose of the public domain cannot be interfered with, nor 
 its exercise embarrassed, by any State or Territorial legisla- 
 
 1 United States vs. Carpenter, 109 3 Irvine vs. Marshall, 20 How. 
 
 U. S. 347. 561 ; Union M. & M. Co. vs. Ferris, 
 
 2lrvine vs. Marshall, 20 How. 2 Saw. 176; Vansickle vs. Haines, 
 
 558; Reversing i Minn. 340; Buttz 7 Nev. 249. 
 
 vs. Northern Pac. Ry. Co., 119 U. ^See previous section and cases 
 
 S. 55; Beecher vs. Wetherby, 95 U. cited. 
 
 S. 517; Johnson vs. M'Intosh, 8 ■''Becher vs. Wetherby, 95 U. S. 
 
 Wheat. 543; United Statesvs. Cook, 517; Johnson vs. Mcintosh, 8 
 
 19 Wall. 591; Clark vs. Smith, 13 Wheat., 543; U. S. vs. Cook, 19 
 
 Pet. 195; Veeder vs. Guppy, 3 Wis. Wall. 591. 
 502; Portage City, 8 Opin. Atty. 
 Gen. 262-269.
 
 204 JURISDICTION OVER [§ 134, 135 
 
 tion.^ This right has been uniformly reserved by solemn 
 compacts upon the admission of new States, and has been 
 recognized and scrupulously^ respected b)" the Courts of 
 sovereign States within which large portions of the public 
 lands have been situated and within which much of those 
 lands is still remaining. Article IV, Section 3 Clause 2, of 
 the Constitution of the United States, reads as follows: "Con- 
 gress shall have the power to dispose of and make all needful 
 rules and regulations respecting the Territory or other prop- 
 ert}' of the United States." And so, as the complete authority 
 to dispose of the public domain is in Congress, under the 
 Constitution, it follows that no appropriation of lands can be 
 made for anj^ purpose but by the authority of the Act of 
 Congress. 2 In the case of Union Mill and Mining Company 
 vs. Ferris,'^ the Court held, that the Government of the United 
 States has a perfect title to the public land and an absolute 
 and unqualified right of disposal. Neither State nor Terri- 
 torial legislation can, in any manner, modif)^, or affect the 
 right which the Government has to the primary disposal of 
 the public land, and also that, a stream of running water is 
 part and parcel of the land through which it flows, insepar- 
 ably annexed to the soil, and the use of it as an incident to 
 the soil passes to the patentee of the land. 
 
 § 135. OAvnership of Soil and Water Disthigiiished. — It is 
 
 not our purpose in this work to discuss at length all the 
 methods by which the Government disposes of its lands, only 
 so far as to show how the waters of rivers, streams, lakes and 
 ponds which are upon these lands and necessaril}- a part 
 thereof, pass from the ownership of the United States to other 
 
 llrvine vs. Marshall, 20 How. American Insurance Co. vs. Car- 
 
 558; Reichert vs. Felps, 13 Wall. ter, i Pet. 511; United States vs. 
 
 92; Jourdan vs. Barrett, 4 How. Rogers, 4 How. 567; Mackey vs. 
 
 169. Coxe, 18 How. 100; Beal vs. New 
 
 2 United vStates vs. Fitzgerald, 15 Mexico, 16 Wall. 535; Maxwell 
 
 Pet. 407; Gibson vs. Chouteau, 13 Land Grant Co., 121, U. S. 325; 
 
 Wall. 92; Jorndan vs. Barrett; 4 Tameling vs. United States, etc.. 
 
 How. 169; United States vs. Gra- Co., 93 U. S. 644. 
 
 tiot, 14 Pet. 526; McCulloch vs. ^ 2 Saw. 176. 
 State of Maryland, 4 Wheat. 316;
 
 § 135]. LANDS AND WATERS. 205 
 
 and private hands. And we think that it will not be out of 
 place, at this point, to briefly discuss the different methods 
 the Government has of disposing of its public lands, bearing 
 in mind that a grant of the soil may also carry with it certain 
 interests in the waters upon and adjoining the lands granted. 
 But it must be borne in mind that it is a well settled principle 
 in the arid region that ownership in the soil is not necessary 
 to an ownership in the waters ruuning over and adjoining 
 the land. Hence it follows, that a grant of land through 
 which a stream runs or adjoins, may or may not pass any in- 
 terest in the waters of the stream. In fact before the title to 
 a tract of land passes from the Government to private par- 
 ties all of the waters that natural!}' ran over the tract may 
 have been appropriated by other parties and diverted from 
 their natural course and conducted to other tracts, perhaps 
 miles away; and the grantee of the lands in question is com- 
 pelled to look to other streams, on other lands, for his supply 
 of water. Under the decisions upon this subject the law is 
 settled to mean this: When a grantee of the United States 
 obtains title to a tract of land through or adjoining which a 
 stream of water runs, and the waters of the stream have not 
 hitherto been appropriated, the grantee's patent is not subject 
 to any possible appropriation which may be subsequently 
 made by another party, unless the State or Territory in which 
 the land is located has, by statutory enactments, abolished 
 the common law theory of riparian rights.^ If the land 
 granted before any appropriation has been made is upon the 
 public domain, within the boundaries of a State, the riparian 
 rights of the grantee must be determined and regulated 
 wholly by the municipal law of the State, over which Congress 
 has no power whatever to legislate. And unlCvSS there is a 
 State law upon the subject abolishing or modifying the com- 
 mon law of riparian rights within that State subsequent ap- 
 propriators of the waters of the stream must take the water 
 subject to all of those rights of the riparian grantee.'-^ But u})on 
 
 ISee Part vSecond. dell vs. Hall, 3 Nev. 507; Opliir S. 
 
 2Lytle Creek W. Co. vs. Perdue, M. Co. vs. Carpenter, 4 Nev. 534; 
 
 65 Cal. 447; 2 Pac. Rep. 732; Lob- Robinson vs. Imperial S. M, Co.. 
 
 del vs. Simpson, 2 Nev. 274; Lob- 5 Nev. 44; Covington vs. Becker, 5
 
 206 JURISDICTION OVER [§ 135, 136 
 
 the other hand, if the waters of a stream upon any part of the 
 public domain, whether within the boundaries of a State or 
 not, have been appropriated prior to the existence of any 
 rights of a subsequent riparian grantee of the Government, 
 then the riparian rights of the grantee are subject to the rights 
 of the appropriators.^ And in States which have abolished 
 the common law theories of riparian rights, the person 
 who first actually appropriates, diverts and uses the waters 
 from any natural stream upon the public domain, for some 
 beneficial purpose, has a pefect title to the same, and that too 
 whether the appropriation is made prior or subsequent to any 
 existing rights of a grantee of the Government. But these 
 questions will be more thoroughly discussed in a future por- 
 tion of the volume. 2 
 
 §136. How tlie OoYeriimeiit disposes of its Lands — 
 Special Reservations. — The United States has two general 
 methods of disposing of its public lands. First, by special 
 reservations, for the use of the Government, and by donations, 
 the basis of the title to the land in this case being a Congres- 
 sional Act; and second, by regular disposal through the 
 General L,and OSice, the basis being a Government patent 
 issued under the authority of the general land laws. 
 
 Bearing in mind the definition of the term " public land " 
 as laid down in Newhall vs. Sanger, ^ that the words are used 
 to describe only such lands as are subject to sale or other dis- 
 posal, and do not embrace tracts after having been reserved 
 by competent authority for any purpose or in any manner, 
 we can see how a reservation of such lands for a definite pur- 
 pose can be termed a disposal of them. Under the Constitu- 
 
 Nev. 281; Hobart vs. Ford, 6 Nev. Tieleke, 2 Mont. 59; Caruthers vs. 
 
 77; Vansickle vs. Haines, 7 Nev. Pemberton, i Mont, iii; Hagarvs. 
 
 249; Barnes vs. Sabron, 10 Nev. Reclamation District No. 108, iii 
 
 217; Sboemakervs. Hatch, 13 Nev. U. S. 701. 
 
 261; Dick vs. Caldwell, 14 Nev. 167; iSee Chapter VII, Sections 191- 
 
 Straitvs. Brown, 16 Nev. 317; Cra- 207 and authorities cited. 
 
 mervs Randall, 2 Utah 24S; Mun- 2 See Chapters VII and VIII and 
 
 roe vs. Ivie, 2 Utah 535; Fabian vs. authoi-ities cited. 
 
 Colins, 3 Mont. 215; Barkley vs =^92 U. S. 761.
 
 § 136]. LANDS AND WATERS. 207 
 
 tion as we have seen, no appropriation of the public lands 
 can be made for any purpose but by authority of an Act of 
 Congress.^ 
 
 Appropriation of land by the government is nothing more 
 or less than setting it aside for some particular use. So, 
 whenever a tract of land shall have once been legally appro- 
 priated to any purpose of the Government, from that moment 
 the land thus appropriated becomes severed from the mass of 
 public lands; and no subsequent law or proclamation or 
 sale would be construed to embrace it or to operate upon it, 
 although no reservation were made of it.^ And the erection 
 of fortifications, and the selection of sites for military and 
 civil purposes, are authorized by the Constitution and Acts 
 of Congress, and the power to make the selection is usually 
 committed to the President by Congress, and when made has 
 the same legal validity as if it had been done by express 
 enactment. Also as the President speaks and acts through 
 the heads of the several departments in relation to subjects 
 which appertain to their respective duties, a reservation of 
 lands made at the request of a secretary, for purposes in his 
 department, must be considered as made by the President of 
 the United States, within the terms of the respective Acts of 
 Congress.-'^ And if any patents are issued, purporting to con- 
 
 lAnte Section 134 and cases United States vs. Gear, 3 How 
 
 cited; Art. 4, Sec. 3, Clause 2, 132. 
 Constitution of the United States. 3 Wilcox vs. Jackson, 13 Pet. 498, 
 
 United States vs. Fitzgerald, 15 where it was held that: An ap- 
 Pet. 407, where it was held that if propriation of land by the Govern- 
 a tract of land has been severed nient is nothing more or less than 
 from the public domain, by a setting it apart for some particular 
 legal appropriation of it, for any use. In the case before the Court 
 public purpose, no right can be there has been an appropriation of 
 acquired to it by cultivation or the land not only in fact, but in 
 possession; because the land thus law, for a military post, for an In- 
 severed is not subject to the pre- dian agency and for the erection of 
 emption law. a light house. And also that by 
 
 2 Wilcox vs. Jackson, 13 Pet. 49S ; the Act of Congress of 1830, when- 
 United States vs. Railroad Bridge, soever a tract of land shall have 
 6 Mcl^ean, 527; United States vs. once been legally api)ropriated to 
 Fitzgerald, 15 Pet. 421; City of any purpose from that moment 
 Mobile vs. Kslava, 16 Pet. 250; the lan<l tlius appropriated be.
 
 208 JURISDICTION OVER [§ 136, 137 
 
 vey any lands which have formerlj^ been reserved by com- 
 petent authority' for any purpose whatever, it follows that the 
 patents are inoperative to convey any title, and are absolutely 
 void.^ 
 
 The Courts have settled by a long line of decisions that 
 the issuing of a patent for public lands is a ministerial act, 
 which must be performed according to law, and that where it 
 has been issued without authority of law, whether fraud- 
 ulently or not, is void.^ 
 
 § 137. Donations for Internal Improvement. — Also land is 
 granted to individuals, corporations. States and Territories, 
 for the purpose of internal improvement, most frequently to 
 aid in the construction of a railroad to be built between certain 
 places, by a certain company named in the grant. But as 
 every land grant is made by an Act of Congress the nature 
 and terms of any particular grant must be gathered from the 
 language of the Act itself, as that Act, by which it is made, is 
 a law.-'^ There are two ways of granting land for this purpose. 
 
 comes severed from the mass of l Ibid. 
 
 public lands; and no subsequent 2 Stoddard vs. Chambers, 2 How. 
 law or proclamation or sale would 2S4; Minter vs. Crommelin, 18 
 be construed to embrace it, or to How. 87; Brush vs. Ware, 15 Pet. 
 operate upon it, although no other 93; Danforth vs. Wear, 9 Wheat, 
 resei-vation were made of it. 673; Patterson vs. Jenks, 2 Pet. 
 By the Act of Congress of 1830, 235; Polk vs. Wendall, 9 Cranch, 
 all lands are exempted from pre- 98; Hoofnagle vs. Anderson, 7 
 emption which are reserved from Wheat. 214; Cunningham vs. Ash- 
 sale by order of the President of ley, 14 How. 389; Lindsey vs. Mil- 
 the United States. The President ler, 6 Pet. 674; Brown vs. Clem- 
 speaks and acts through the heads ents, 3 How. 667; Lodiga vs. Ro- 
 of the several departments in re- land, 2 How. 581; Lindsey vs. 
 lation to subjects which appertain Hawes, 2 Black, 558; Minnesota 
 to their respective duties. Mili- vs. Bachelder, i Wall. 107. 
 tary posts belong to the War ^ See Lester's Land Laws of the 
 Department. A reservation of United States, 2nd Edition. Kan. 
 lands made at the request of Pac. Ry. Co. vs. Dunmeyer, 113 U. 
 the Secretary of War for purposes S. 629; Missouri Pacific Ry. Co. vs. 
 of his department must be con- Kansas Pac. Ry. Co., 97 United 
 strued as made by the President of States 491 ; St. Paul, etc , Ry. Co. vs. 
 the United States within the terms Greenhalgh, 26 Fed. Rep. 563; 
 of the Act of Congress. Hall vs. Russell, loi U. S. 503.
 
 § 137, 138.] 
 
 LANDS AND WATERS. 
 
 209 
 
 One is direct to the company,^ and the other is made to a 
 State in aid of a- railroad; and where this is done the State 
 acquires nothing under the Act of Congress more than a mere 
 naked trust, with power to transfer the lands therein specified 
 to the company when it has complied with the necessary re- 
 quirements or to apply the proceeds from their sale to the use 
 and purpose prescribed in the Act.^ But in either case the 
 building of the road is the consideration for the grant.-^ 
 
 § 138. Same. — Coiitinuetl.— Congressional grants of land 
 have also been made for other purposes, such as the improve- 
 ment of river navigation,'* the building of wagon roads," and the 
 swamp land grants to the several States, to enable those States to 
 construct levees and drains, and reclaim swamp and overflowed 
 lands. ^ By this method Congress has granted vast tracts of 
 
 As to grant ht praesenti, see 
 Wright vs. Roseberrj', I2i U. S. 
 4S8; Martin vs. Marks, 97 U. S. 
 345; Hannibal Ry. Co. vs. Smith 
 9 Wall. 95; Winona etc. Ry Co. vs. 
 Barney, 113 U. S. 618. 
 
 1 Brewster vs. K. C. L. & S. K. R. 
 Co., 25 Fed. Rep. 243; Missouri 
 Pacific Ry. Co. vs. Kan. Pac. Ry. 
 Co., 97 U. S. 491; Kansas Pac. Ry. 
 Co. vs. Dunmeyer, 113 U. S. 629. 
 
 ^Rice vs. Minn. etc. Ry. Co., i 
 Black 360; Wolsey vs. Chapman, 
 loi U. S. 755; Van Wyck vs. 
 Knevals, 106 U. S. 360; Hannibal 
 etc. Ry. Co. vs. Smith, 9 Wall. 95; 
 Schulenberg vs. Harriman, 21 
 Wall. 60; Grinell vs. Chicago etc. 
 Ry. Co., 103 U. S. 739; Cedar 
 Rapids etc. Ry. Co. vs. Court- 
 wright, 21 Wall. 310; Williams vs. 
 Baker, 17 Wall. 144; K. C. Ry. Co. 
 vs. Atty. Gen., 118 U. S. 682; 
 Leavenworth etc. Ry. Co. vs. 
 United States, 92 U. S. 733; Litch- 
 field vs. Webster Co., loi U. S. 
 773; Miller vs. Swann, 89 Ala. 
 631. 
 
 3 Brewster vs. K. C. Rj'. Co., 2 
 Fed. Rep. 243. 
 
 4 Woolcott vs. D. M. Co., 5 Wall. 
 681; Dubuqne etc. Ry. Co. vs. 
 Litchfield, 23 How. 66. 
 
 5 Penga vs. Munz, 29 Fed. Rep. 
 830; Cal. & Oreg. L. Co. vs. Munz, 
 29 Fed. Rep. 837. 
 
 tj United vStates Rev. Stat, Sec. 
 2479, 2480; Sacramento Sav. Bank 
 vs. Hymes, 50 Cal. 195; Cragiu vs. 
 Powell, 128 U. S. 691; Gormley vs. 
 Uthe, 116 111. 643; 133 U. S. 655; 
 Hannibal etc. Ry. Co. vs. Smith, 9 
 Wall. 95. 
 
 The grant being one in prae- 
 senti, the interest of the State in 
 the lands cannot be impaired by 
 the delay or the refusal of the Sec- 
 retary to have the lists and plats 
 made. San. Fran. Sav. Unions vs. 
 Irwin, 28 P'^ed. Rep. 708; Owens 
 vs. Jackson, 9 Cal. 322; Summers 
 vs. Dickinson, 9 Cal. 554; French 
 vs. P^yan, 93 U. S. 169, Gaines vs. 
 Thompson, 7 Wall. 347; Cox vs. 
 McGarrahan, 9 Wall. 298; Litch- 
 field vs. Richards, 9 Wall. 575.
 
 210 JURISDICTION OVER [§ 138, 139 
 
 lands for the purpose of aiding in the construction of railroads 
 and other internal improvements, but in making these dona- 
 tions Congress can not be supposed to exercise its liberality 
 to the prejudice of pre-existing rights, which, though often 
 times imperfect, were still meritorious, and had just claims to 
 legislative protection; and therefore, where any homestead, 
 pre-emption rights or claims in and to waters of natural 
 streams and lakes or other similar rights have attached prior 
 to the grant, they will be recognized and protected in pursu- 
 ance of the constant policy of the government to protect those 
 who, in good faith, have settled upon and improved any por- 
 tion of the public lands. "^ 
 
 § 139. Same — School Lands. — Congress, by several Acts, 
 passed at various times, has granted to certain States and 
 Territories a portion of the public lands within their respective 
 boundaries for the use of the public schools of those States or 
 Territories, respectively. The portion granted has most often 
 been the i6th section of each township,^ although in many of 
 those States and Territories formed out of the arid region both 
 the 1 6th and 36th sections have been granted. ^ And it is in all 
 cases provided where sections sixteen and thirty-six, or either 
 of them, are occupied by actual settlers prior to the survey of 
 such lands, that other lands may be located to an equal amount, 
 
 1 Lamb vs. Davenport, 18 Wall- Missouri, 18 How. 126; Dickens vs. 
 
 ^13; Rector vs. Gibbon, iii U. S- Mahana, 2 How. 276; Beecher vs. 
 
 276; U. S. vs. Missouri Ry. Co., 37 Weatlierby, 95 U. S. 517; Kissell 
 
 Fed. Rep. 68; Forbes vs. Gracey, vs. St. Louis Pub. Schools, 18 
 
 94 U. S. 762; Wolcott vs. Des How. 19; St. Louis Public Schools 
 
 Moines Co., 5 Wall. 6S1; Williams vs. Walker, 9 Wall. 282; Act of 
 
 vs. Baker, 17 Wall. 144. March 3rd, 1803, 2 Stat, at L. 229; 
 
 2Upon their admission to the Gaines vs. Nickolson, 9 How. 356. 
 
 Union, Congress granted to each 3 Rev. Stat. U. S., Sees. 1946- 
 
 of the States of Illinois, Michigan, 1947, and citations as to dates of 
 
 Missouri, Ohio, Wisconsin and passage of Acts; Ferrj^ vs. Street, 
 
 others the .sixteenth section of 4 Utah, 521; Ivanhoe Mining Co. 
 
 each township for school purposes. vs. Keystone Con. M. Co., 102 U. 
 
 Springfield vs. Quick, 22 How. S. 167; Natoma Water etc. Co. vs. 
 
 56; Vincennes Universit}- vs. In- Bugbey, 96 U. S. 165; Heydenfeld 
 
 diana, 14 How. 268; Cooper vs. vs. Daney Gold etc. M. Co., 93 U. 
 
 Roberts, 18 How. 173; Hendrick S. 634. 
 vs. Hughes, 15 Wall. 123; Ham vs.
 
 § 139, 140]. LANDS AND WATERS. 211 
 
 in lieu of the sections so occupied.^ However, all selections 
 of lieu lands made by a State upon unsurveyed public lands 
 of the United States are held to be utterly void.^ It is 
 held that the title to the lands granted for the use of the pub- 
 lic schools vests in the State at once upon the Act taking 
 effect, where the lands are surveyed, or where they are 
 bounded or ascertained,^ as effectually as if a patent had been 
 issued; and the title so transferred relates back to the date of 
 the selection of the lands b}'- the State, if they are lieu lands, 
 and a patent is unnecessary.'^ And hence, after lands have 
 been selected by the State as indemnity school lands, and 
 certified or listed as such by the proper officers of the United 
 States, there can be no right of pre-emption to such lands.^ 
 No subsequent law of Congress authorizing a sale of public 
 lands can be construed to embrace such school lands. ^ How- 
 ever, the title being vested in the respective States they can 
 sell and give a perfect title to the school lands, and their 
 title is conclusive of a regular and valid sale." 
 
 It is also held by the Supreme Court of the United States 
 that by the settled policy of the General Government, in these 
 grants for school purposes, mineral grants are excluded.^ 
 
 §140. Town Site Law. — There are three methods by means 
 
 of which public lands are disposed of for town site purposes: 
 
 First — The President is authorized to reserve from the 
 
 1 Rev. Stat. U. S., vSec. 1947. the party which first commences 
 
 Hedrick vs. Hughes, 15 Wall. 123; the proceedings required to obtain 
 
 Ham vs. Missouri, 18 How. 123; the title, if they are followed up 
 
 Natoma W. Co. vs. Bugbey, 96 U. to the final act for its transfer, is 
 
 S. 165; Heydenfeldvs. Daney Gold considered to have priority of 
 
 etc. M. Co., 93 U. S. 634; Gaines right. The rule prevails in such 
 
 vs. Nickolson, 9 How. 356; Bullock cases, first in time, first in right, 
 
 vs. Rouse, 81 Cal. 590; McCreery Howell vs. Slauson, 83 Cal. 539. 
 
 vs. Haskell, 119 U. S. 327; Howell f'Dorard vs. Martin, 120 U. S. 
 
 vs. Slauson, 83 Cal. 539; Hanible- 366. 
 
 ton vs. Duhain, 71 Cal. 136. f>Beecher vs. Wetherby, 95 U. S. 
 
 2 United States vs. Cartner, 38 517. 
 
 Fed. Rep. i. 7 Cooper vs. Roberts, iS How. 
 
 3 Ferry vs. Street, 4 Utah, 521. 173. 
 
 4 McCreery vs. Haskell, 119 U. SivanhoeM. Co. vs. Keystone 
 S. 327, where it was held that as Con. M. Co., 102 U. S. 167; vS!ii_t- 
 between the State and the settler man vs. Bruck, 93 U. S. 20j.
 
 212 JURISDICTION OVER . [§ 140 
 
 public lands, whether surveyed or unsurveyed, lands for town 
 site purposes, on the shores of harbors, at the junctions of 
 rivers, at important portages, or any natural or prospective 
 centres of population. Provisions are made for the survey of 
 such lands selected into lots of suitable size, for the appraise- 
 ment of the same at their cash valuation, their sale at public 
 out-cry to the highest bidder, and for the disposal of unsold 
 lots at public sale or private entry, at not less than their ap- 
 praised value. All such sales are to be conducted by the 
 Register and Receiver of the L-and Office, in that district, 
 in accordance with the instructions of the General Ivand 
 Office. 1. 
 
 Second — In case parties have already founded, or may 
 desire to found, a city or town on the public lands they may 
 cause to be filed with the Recorder of the County in which 
 the same is situated a plat for not exceeding six hundred and 
 fort}' acres, describing its exterior boundaries according to 
 the lines of the public sur\^eys, if the lands have been sur- 
 veyed; also giving the name of such city or town, and ex- 
 hibiting its streets, squares, etc., with measurements, and area 
 of each municipal subdivision, the lots in which shall not 
 exceed four thousand two hundred square feet, with a state- 
 ment of the extent and general character of the improve- 
 ments; such a map and statement to be verified under oath, 
 and a verified transcript of the same, within thirty days after 
 its filing, must be transmitted to the General Land Office, 
 accompanied by the testimony of two witnesses that such 
 city or town has been established in good faith, and when 
 the premises are within the limits of an organized land dis- 
 trict a similar statement shall be filed with the Register and 
 Receiver thereof. The President is then authorized to cause 
 the lots embraced within the limits of such city or town to 
 be offered at public sale to the highest bidder; and such lots 
 that may not be thus disposed of shall thereafter be liable to 
 private entry, at such price as the Secretary of the Interior 
 may order from time to time. When such cities or towns are 
 
 1 United States Rev. Stat. 2380, Stat. 557, 558; 2 Copp's Public 
 2381, Act of March 3rd, 1863; Land Laws, 1007, loii. 
 Gould and Tucker's notes on Rev.
 
 § 1-40]. LANDS AND WATERS. 213 
 
 established upon iiusurveyed lands, after the extension there- 
 to of the public surveys, the extension limits of the premises 
 may be adjusted according to those lines, where it can be 
 done without interference with rights which may be vested 
 by sale. Patents for all lands so disposed of shall issue -as in 
 ordinary cases. ^ 
 
 Third. — Whenever any portion of the public lands have 
 been already or may be settled upon and occupied as a town 
 site, not subject to entry under the agricultural pre-emption 
 laws, it is lawful for the corporate authorities thereof, or if it 
 be unincorporated, for the Judge of the County Court of the 
 county, to enter at the proper land office, and at the mini- 
 mum price, the land so settled and occupied " in trust for the 
 several use and benefit of the inhabitants thereof, according to 
 their respective interest;" the execution of this trust, as to the 
 disposal of such lots in such town, and the proceeds of the sales 
 thereof, is to be conducted under the regulations as may be 
 prescribed by the legislative authority of the State or Territory 
 in which the town may be situated.^ In no case, how- 
 ever, may town sites be, located or any title acquired in that 
 manner upon or to an}- known mineral lands, or to any valid 
 mining claim or to the prejudice of any vested rights to water 
 that naturally flows over or adjoins the premises.-^ Other 
 
 1 United States Rev. Stat. 2382- SDeffeuljach vs. Ilawkes, 115 U. 
 
 2386, Actof July 6th, 1S64; 2 Copp's S. 392. 
 
 Public Land Laws, loii. But in vSparks vs. Pierce, 
 
 ^United States Rev. vSt. Sees 115 U. S. 408, where it was held 
 
 2387, 2394, Act of Mar. 2nd, 1867; that a person who makes improve- 
 2 Copp's Public Land Laws, 1012; ments upon public lands, knowing 
 Stringfellow vs. Cain, 98 U. S. 610; that he has no title, and that the 
 Burbank vs. P^llis, 7 Neb. 156; land is open to exploration and 
 Ashby vs. Hall, 119 U. S. 526; sale for its minerals, and makes 
 Townsend vs. Little, 109 U. S. 504; no effort to secure the title to it as 
 Clark vs. Titus, (Ariz.) 11 Pac. Rep. such under laws of Congress, or a 
 312; Pratt vs. Young, I Utah 347; right of posses.sion under the local 
 Cain vs. Young, i Utah 361; Lech- customs and rules of miners, has 
 ler vs. Chapin, 12 Nev. 65; Singer no claim to compensation for his 
 Mfg Co. vs. Tillman, (Ariz.) 21 improvements as an adverse 
 Pac. Rep. 818; Hussy vs. Smith, holder in good faith, wlien such 
 99 U. S. 20; Reversing, i Utah 129; sale is made to another and the 
 Taylor vs. Winona etc. Ry. Co., title is passed to him l)y a i)atent 
 45 Minn. 66; Lamm vs. Chicago of the United vStates. 
 
 etc. Ry. Co., 45 Minn. 71. Witherspoon vs. Duncan, 4 Wall.
 
 214 JTTRISDICTION OVER [§ 140, 141 
 
 miscellaneous grants have been made at various times, and 
 for different objects, but enough has been said to show how 
 the government disposes of its lands by this means. ^ 
 
 §141. Pre-Existing Water Rights not Effected by Con- 
 gressional (jrants.— As has been stated, no pre-existing 
 rights are effected by these Congressional grants of lands.- 
 This is as true of pre-existing rights to waters that naturally 
 flow over or adjoin these lands as it is of rights to the soil, 
 whether there are any special reservations of these water 
 rights in the grant itself or not. This law is based upon a 
 common principle of justice, and in pursuance of the constant 
 policy of the government, through Congress and the Courts, 
 to protect any bona fide rights which have attached prior to 
 grant, of those who have in good faith settled upon and 
 improved any portion of the public domain. ^ And it is gener- 
 ally provided that where lands along the line of a proposed 
 railway are already taken up the railway company may take 
 other lands of the public domain as indemnitj^^ 
 
 But whether these rights are provided for in the grant or 
 not it is the established doctrine of the courts that water 
 
 2i8; Steel vs. St. Louis Smelting Ry. Cas. 215; P'orbes vs. Gracey, 
 
 Co., 106 U. 8. 447; Broder vs. 94 U. S. 762; Lamb vs. Davenport, 
 
 Natoma Water Co., loi U. S. 274; 18 Wall. 313; Jennison vs. Kirk, 98 
 
 Atchison vs. Peterson, 20 Wall. U. S. 240; Rector vs. Gibbon, iii 
 
 507; Basey vs. Gallagher, 20 Wall. U. S. 276; Sparrow vs. Strong, 3 
 
 670. Wall. 97; Williams vs. Baker, 17 
 
 lU. S. Rev. St. Sec. 247S; Cragin Wall. 144; Myers vs. Craft, 13 
 
 vs. Powell, 128 U. S. 691; 5 Stat. Wall. 291; R. R. Co. vs United 
 
 at L., 496; U. S. Rev. Stat., 2378; States, 92 U. S. 733; Davenport vs. 
 
 Oregon Donation Act, 9 Stat, at Lamb, 13 Wall. 418; Thredgill vs. 
 
 L., 496. Pintard, 12 How. 24; Woolcott vs. 
 
 a Ante Sec. 138. Des Moines Co., 5 Wall. 681; Wil- 
 
 3 Brader vs. Natoma Water etc. Hams vs. Baker, 17 Wall. 144. 
 
 Co., loi U. S. 274; 50 Cal. 621; Wi- ^ Kan. Pac. Ry. Co. vs. Atch. etc. 
 
 nona etc. Ry. Co. vs. Barney, 113 Ry. Co., 112 U. S. 414; Winona etc. 
 
 U.S. 618; Atchison vs. Peterson, Ry. Co. vs. Barney, 113 U. S- 618; 
 
 20 Wall. 507; St. Joseph etc. Ry. Barney vs. Winona etc. Ry. Co., 117 
 
 Co. vs. Baldwin. 103 U. S. 426; U. S. 228; Wis. Cent. etc. Ry. Co. 
 
 Burnham vs. Starkey, 41 Kan. 604; vs. Price Co., 133 U. S. 496;South- 
 
 Basey vs. Gallagher, 20 Wall. 670; ern Pac. Ry. Co. vs. Tilley, 41 Fed. 
 
 Burlington etc. Ry. Co. vs. John- Rep. 729. 
 son, 38 Kan. 142; 33 Am. & Eng.
 
 § 141, 142]. LANDS AND WATERS. 215 
 
 rights of persons and rights of way of those who have con- 
 structed canals and ditches to be used for irrigation and in 
 mining operations, and the right of all bona Jide settlers 
 upon the surveyed or unsurveyed portion of the public domain, 
 are rights which the Government has by its conduct recog- 
 nized and encouraged and is bound by that conduct to protect, 
 even should these rights have accrued prior to the Acts of 
 1 866 or of 1870. And furthermore, Congress in making 
 donations or grants to railroad companies can not exercise 
 its liberality at the expense of pre-existing rights, which, 
 though imperfect, are still meritorious, and have just claim 
 to the protection of the legislature and the Courts.^ 
 
 § 142. Reguliir Disposal Tlirouji^li tlie General Laud OIHce. 
 — Pre-emption. — ^The government has had five principal 
 methods for the disposal of its land through the Land 
 OflBce.- It is not the purpose of this work to discuss these 
 various methods at length, but a short statement of each is 
 necessary, as one must understand just when the rights of the 
 parties taking lands first attached; audit is also necessary in 
 these cases to ascertain who has the priority, not only as to the 
 soil, but also as to the waters which flow over or adjoin it. 
 
 First. — Pre-emption. The pre-emptor goes upon the land, 
 improves it and resides there continuously for six months, and 
 at the expiration of the required time, by making proof of his 
 residence and improvements, and paying the sum of $1.25 per 
 acre, he is entitled to a patent.^ After the claimant has made 
 his settlement, and not before, he is to file a declaratory 
 statement in the land office of that district,^ within thirty days 
 
 1 Ibid. tied upon public laud with a view 
 
 2 The Timber Culture law of to acquire a right to pre-emption, 
 
 1878, U. S. Rev. Stat. Sec. 2436, the land being open to settlement, 
 
 Repealed on March 3rd, 1891, See his right thus initiated, is not pre- 
 
 Rev. Stat. 1874-1891, p. 940. judiced by a refusal of the local 
 
 3 U.S. Rev. Stat. Sees. 2257-88; land officers, to receive his proofs 
 
 United States vs. P'itzgerald, 15 of settlement, upon an erroneous 
 
 Pet. 407; Frisbie vs. Whitney, 9 opinion that the land was reserved 
 
 Wall. 187; The Sossol vs. Ranch, from sale. 
 
 II Op. Att. Gen. 490, Shepley vs. ■! U. S. Rev Stat. 2264; 2 Oo])p's 
 
 Cowan, 91 U. vS. 330, where it was Pub. I^und I.., 641; (juinn vs. 
 
 held, that where a party has set- Chapman, iii U. vS. 445.
 
 216 JURISDICTION OVER [§ 142, 143 
 
 after the settlement, if the land is surveyed and offered for 
 sale; within three months if the land is unsiir\'eyed but 
 offered for sale; and if unsurveyed, within three months 
 after the plat is filed in the district land office.^ The right of 
 the pre-emptor first attaches to the land, if he complies with 
 the law in other respects, at the time of the settlement tipon the 
 same. 
 
 § 143. Same— Homestead— Public Sale— Military Land 
 Warrants. — The second method is under the homestead law, 
 which is in many respects similar to the pre-emption law. 
 By this method a person makes an entry in the local Land 
 Office of the land subject to homestead, improves it, but 
 must besides this reside upon the land continuously for five 
 years; and at the expiration of that time, upon making final 
 proof such residence and improvements, he is entitled to 
 receive a patent, without the paj^ment of money except a 
 small amount for fees.^ 
 
 Any person having a homestead upon the public domain 
 can, by paying the minimun price of the land entered upon, 
 obtain a patent for the same under the pre-emption laws. 
 Ivikewise, a person having entered a pre-emption claim may 
 " homestead his pre-emption." ^ The right of claimant under 
 the homestead act first attaches when he files his application 
 in the Land Office. But if he was an actual and bona fide 
 settler prior to the time that the lands were offered for sale his 
 right attaches at the time of such settlement. The policy of 
 the Federal Government has always been liberal in this 
 respect. It recognizes the superior equity of such settlers to 
 become the purchasers over that of any other person, and his 
 right to the premises relates back to the time of the settle- 
 ment, provided he has not allowed the time to lapse in which 
 
 lU. S. Rev. Stat. vSecs. 2264-65; United States vs. Reed, 28 Fed. 
 
 Johnson vs. Towley, 13 Wall. 72; Rep. 482; Union Pac. Ry. Co. vs. 
 
 Moore vs. Robbins, 96 U. S. 530; Watts, 2 Hill. no. 
 
 Tyler vs. Green, 28 Cal. 406; 87 3U. S. Rev. Stat. 2301; Timber 
 
 Am. Dec. 130 and note; Gimmy vs. Cases, 11 Fed. Rep. 81; United 
 
 Culverson, 5 Sawy. 605. States vs. Freyberry, 32 Fed. Rep. 
 
 2U. S. Rev. Stat. 2289-2317; i 195. 
 Copp's Pub. Land Laws, 1840; 339;
 
 § 143]. LANDS AND WATERS. 217 
 
 to make the proper entry of the laud, after the land is open 
 for sale.^ 
 
 The third method is by public sale and private entries. 
 Congress may authorize the President to issue an order 
 exposing certain lands for sale. And after having been 
 offered at public auction for a period of two weeks, the lands 
 remaining unsold are held subject to private entry and sale.- 
 
 In these cases the right of the parties attach upon the 
 entry of the tract at the Land Office, which must be paid for 
 upon the day of purchase.^ 
 
 The fourth method is by the issuance of military land war- 
 rants. Militar}^ land warrants have been issued to individuals 
 under Acts of Congress, from time to time, for military ser- 
 vice, and the lands granted under them are called bounty 
 lands. The law provides that the lands for which warrants 
 have been, or may be hereafter, issued in pursuance of law, 
 may be located in one body, according to the legal subdivisions 
 of the public lands, upon any of the lands of the United 
 States, subject to private entry at the time of such location 
 and at the minimum price. ^ The location of land under a 
 military land warrant is more in the nature of a sale than a 
 grant or donation and is disposed of through the General Land 
 Office, and the term " all lands remaining unsold" is consid- 
 ered to except lands located under land warrants.^ The right 
 to lands entered under these warrants attach to the original 
 
 iClemeutsvs. Warner, 24 How. U. S., Sees. 2414, 2423. Gould & 
 
 394; U.S. Rev. Stat. 2265; John- Tucker's Notes on Rev. St., p. 556. 
 
 son vs Towsley, 13 Wall. 72; Moore 5Gormley vs. Uthe, 116, 111., 643; 
 
 vs. Robbins, 6 Otto. 530; 9 Op. 133 U. S. 655, where the Court held 
 
 Atty. Gen., 515. that the giving of a military land 
 
 2U. S. Rev. vStat. 2353, 2360. warrant l)y the holder thereof to 
 
 By Act of March 2nd, 1889, 25 tlie proper officers of the govern- 
 
 Stat. L. 854, all lands of the United nient, with directions that it be 
 
 States were withdrawn from being located in a designated tract of 
 
 subject to private entry, except public land, constituted a sale of 
 
 those in Missouri. Gould & Tuck- that tract within the meaning of 
 
 er's Notes on Rev. Stat. 552. that Act of Congress of September 
 
 3U. S. Rev. Stat. 2556; (iould ^: 2.Sth, 1850. 9 Stat, at k., 519 c. 84. 
 
 Tucker's Notes on Rev. Stat. 552. I'ussell vs. Ciregg, 113 U. S. 550; 
 
 4 As to the general law upon the Doddridge vs. Thompson, 9 Wheat, 
 
 subject see Chapter X, Rev. Stat. 499; Reynolds vs. McArthur, 2 I'et.
 
 218 JURISDICTION OVER [§ 143, 144 
 
 owner thereof or to his assigns,^ zvhen the entry is made and he 
 receives his certificate of the same.^ 
 
 The last of these methods is by the Desert Land Act^ of 
 March 3rd, 1877 ; modified by Act of March 3rd, i8gi. 
 
 This Act provides that a person entitled to the right, upon 
 payment of twenty-five cents per acre, may file a declaration 
 under oath with the local Land Office that he intends to 
 reclaim a tract of desert land, not exceeding one half section, 
 by conducting water upon the same, and within a period of 
 four years after such declaration, upon making final proof of 
 the reclamation of the land he is entitled to a patent, upon 
 payment of one dollar additional per acre.** The right first 
 attaches upon the claimant's making the proper entry in the 
 Land Office. 
 
 § 144. Same. — Riglits Attach When. — As the term entry 
 is of frequent occurrence in this discussion its meaning should 
 be fully explained. As applied to the appropriation of public 
 lands it means that act by which an individual acquires an 
 inceptive right of record to possession of the unappropriated 
 soil of the public domain by filing his necessary papers in the 
 proper office.^ However, an equitable right, as has been seen, 
 may attach under certain circumstances upon the mere settle- 
 ment of the land and before the filing of any papers at all. 
 And the party who takes the first step, if followed up to patent, 
 is deemed to have acquired the better right as against all 
 others to the premises. The patent, which is afterwards is- 
 sued, relates back to the date of the initiatory act, and thus 
 
 417; Taylor vs. Meyers, 7 Wheat. 2u. S. Rev. Stat. 2414, 2423; 
 
 23; Jackson vs. Clark, i Pet. 62S; Gould &: Tucker's Notes to Rev. 
 
 M'Arthur vs. Browder, 4 Wheat. Stat., p. 556: Gray vs. Jones, 14 
 
 488; Bouldin vs. Massie, 7 Wheat. Fed. Rep. 83; Key vs. Jennings, 
 
 122; Watts vs. I/indsey, 7 Wheat. 66 Mo. 356; Wirth vs. Bronson, 98 
 
 158; Maxwell vs. Moore, 22 How. U. S. iiS; Stinsou vs. Geer, 42 
 
 185; Walker vs. Smith, 21 How. Kan. 520. 
 
 579. 3 Of March 3rd, 1877; 19 Stat, at 
 
 1 These warrants are made assign- L,. 377, modified by Act of March 
 
 able by law. See U. S. Rev. Stat. 3rd, 1891; 26 Stat, at L 1095. 
 
 Sec. 2414; Bronson vs. Kukuk, 3 ^2 Copp's Land Laws, 888, 909. 
 
 Dill. 490; 5 Atty. Gen. ap. 237, 5 Chotard vs. Pope, 12 Wheat. 
 
 387, 509. 586.
 
 § 14-4, 145]. LANDS AND WATERS. 219 
 
 cuts off all intervening claimants, whether that act be an actual 
 settlement upon the land itself or filing the necessary papers 
 in the Land Office.^ "Other things being equal, he who has 
 the priority has the superior right," applies to all conflicting 
 Congressional grants'-' and to all conflicts between these grants 
 and the claims of settlers. Homestead, pre-emption, or other 
 claims, entered before the location of the railroad, though 
 after the passage of the land grant Act, are not affected 
 thereby.^ 
 
 III. Jurisdiction over Public Lands and Waters. 
 
 § 145. Jurisdiction of Appropriation of Water Upon the 
 Public Domain.— Waters upon the public domain, or upon 
 lands to which the United States still holds the title, are sub- 
 ject and open to appropriation under the authority of the laws 
 of the United States, as set forth in the previous chapter of 
 this work. These waters, although upon the public domain 
 of the United States, are situated within the various States 
 and Territories of the arid west, and must be appropriated, 
 transferred or used, according to the laws and rules governing 
 the same, of that State through which the stream flows, 
 from the fact that the United States has only the rights of a 
 proprietor over these lands and waters, and not the rights of 
 a political sovereign. And the United States, by giving the 
 authority and right to appropriate, divested itself of the title 
 to these waters, and all control over the same passes to the 
 legislature of the respective States or Territories through 
 which they flow. The power to prescpibe such rules forms a 
 part of the law concerning real property, and belongs exclu- 
 
 IShepley vs. Cowan, 91 U. vS. This is so, even though such set- 
 
 330- tier's claim be abandoned after- 
 
 2 vSt. Paul etc. Ry. Co. vs. \Vi- ward. The principle is that no 
 
 nona, etc. Ry. Co., 112 U. .S. 720; land can pa.ss by a Congressional 
 
 Kan. Pacific Ry. Co. vs. Dun- Act, which is not in the control of 
 
 meyer, 113 U. S. 629; Northern the Government at the time of the 
 
 Pac. Ry. Co. v.s. St. P. etc. Ry. Co., location of the road. 
 
 26 Fed. Rep. 551. vSee also I'lmslcc vs. Vuung, 24 
 
 a Kansas Pac. Ry. Co. vs. Dun- Kan. 732; Clements vs. Warner, 24 
 
 nieyer, 113 U. S. 629; affirming 29 How. 394. 
 Kan. 725.
 
 220 JURISDICTION OVER [§ 145 
 
 siveh' to the jurisdiction of the respective States, and even 
 Territories so long as the laws of the same are not in conflict 
 with the laws of the United States. ^ B}- the tGth clause of 
 the 8th Section of the ist Article of the Constitution we find 
 that power is given to Congress ' ' To exercise exclusive 
 legislation in all cases whatsoever over such district (not to 
 exceed ten miles square) as may, by cession of particular 
 States and the acceptance of Congress, become the Seat of 
 the Government of the United States, and to exercise like 
 authorit}^ over all places purchased by the consent of the 
 legislature of the State in which the same shall be, for the 
 erection of forts, magazines, arsenals, dock yards, and other 
 needful buildings."^ So within the District of Columbia, and 
 other places purchased and used for puposes above mentioned, 
 the municipal powers of the government of ever}' description 
 are united and are the sole governing powers.'^ But these are 
 the onl}^ cases within the United States in which all the 
 powers are united in a single government. Even in cases of 
 temporar}' Territorial organization a local government alwa^^s 
 exists, and the specific rules for the appropriation and use of 
 waters, as forming a part of the law concerning real property, 
 falls within the jurisdiction of the local laws, so long as they 
 are not in conflict with those of the United States upon the 
 subject. The United States is simply the proprietor of the 
 public lands, outside of the few exceptions above noted. And 
 whatever may be the rules adopted by the statutes or deci- 
 
 1 Pollard et al. vs. Haggiii, 44 U. Dumphy vs. Kleinsclimidt et al., 
 S. 212; Goodtitle et al. vs. Kibbe, 11 Wall. 610; Willardvs. Presbury, 
 9 How. 478; John Doe et al. vs. 14 Wall. 676; Phillips vs. Payne, 
 Beebe et al., 13 How. 26; Stale of 92 U. S. 130; United vStates vs. 
 Penn. vs. Wheeling & Belmont Fox, 94 United States 315. 
 Bridge Co., 13 How. 5S4; Smith vs. Transfer of lands governed by 
 State of Maryland, 18 How 71. State decisions, /ex- loci rei sitae. 
 
 2 Hepburn et al. vs. EUzey, 2 See notes Lawyers' edition to 
 Cranch. 444; Longbars vs. Blake, Clark vs. Graham, 19 U S. 577. 
 
 5 Wheat. 317; Cohens vs. Virginia, Elmendorf vs. Taylor, 23 U. S. 
 
 6 Wheat. 264; Amr. Ins. Co. vs. 152; Darby vs. Mayer, 23 U. S. 
 Canter i Pet. 511; Kendall vs. 465; Jackson vs. Chew, 25 U. S. 
 United States, 12 Pet. 524; United 153. 
 
 States vs. De Witt, 9 Wall. 41; :^Ibid.
 
 §145,1-40]. LANDS AXl) WATiniS. 221 
 
 sions of any particular State with reference to the rights of 
 riparian owners and appropriators, still that doctrine, hereto- 
 fore described, as originating from the local customs of miners 
 and sustained by the legislation of Congress, is confined in 
 its operation to the public domain of the United States, and 
 all extension of this doctrine to other .lands and other pro- 
 prietors, and all additional rules, must necessarily proceed 
 from the vStates themselves.^ 
 
 § 14(). Lex Loci Sitae jifter Title luis i>asse(i from the 
 Ooverumeilt. — The title to land or water having- once passed 
 from the United States, can be acquired or lost only in the 
 manner prescribed by the law of the State where such land 
 or water is situated, and the Federal Courts are bound to apply 
 the laws and rules of the State in which the property is 
 situated, and to decide the controversy as the State Court 
 would .2 And the United States Government has no power to 
 la}' down any rules of law that would be binding upon its 
 grantees after they have acquired their title from the gov- 
 ernment concerning the use to which the lands or water must 
 be put. All such laws come clearly within the jurisdiction of 
 the States. Before title has passed from the government the 
 United States has a perfect title to the public lands and an 
 absolute and uncjualified right of disposal. AU the lands and 
 waters of the government not appropriated by competent 
 authority before they were acquired by the government are 
 in the first instance the exclusive property of the United 
 States, to be disposed of to such persons at such times, in 
 such manner and by such titles as the government may deem 
 most advantageous to the public. This right of the Govern- 
 
 1 See Pomeroy Rip. Rights, vSec. Clark vs. vSniith, 13 Pet. 195; Wil- 
 30. cox vs. Jackson, 13 Pet. 498; Amis 
 
 2 Walker vs. vState Coin's; 17 vs. vSmith, 16 Pet. 303; Fisher vs. 
 Wall. 648; vSupervisors vs. United Ilaldenian, 20 How. 186; Miles vs. 
 States, 18 Wall. 71; State vs. Swal- Caldwell, 2 Wall, 35; Suydani vs. 
 low, I Bond. 189; Coolidge vs. Cur- Williamson, 24 How. 427; Chicago 
 tis, I Bond. 222; vSimms vs. Irvine, vs. Roljbins, 2 Black 418; Ro.ss vs. 
 3 Dall. 425; Waring vs. Jack.son, i Duval, 13 Pet. 45; Orvis vs. Powell, 
 Pet. 570; Davis vs. Mason, i Pet. 8 Otto 176. 
 
 503; Hinde vs. Vattier, 5 Pet. 398;
 
 222 JURISDICTION OVER [§ 146, 147 
 
 ment has been uniformly reserved by solemn compact upon 
 the admission of new States into the Union, and has always 
 been recognized and respected by the various States within 
 which large portions of the public lands of the United States 
 have been located, and within which much of these lands 
 are still remaining. The legislatures of the various States 
 in which the public lands are situated have no power to inter- 
 fere and to dictate to the United States, to whom, or in what 
 manner, or by what title, the public lands shall be conveyed 
 in the first instance. But after the title has once passed the 
 law of the State wherein the land is situated alone prevails. ^ 
 And as to what laws shall determine this question the rule is 
 laid down in Wilcox vs. Jackson, ^ to be, " We hold the true 
 principle to be this, that whenever the question in any Court, 
 State or Federal, is, whether the title to land, which had been 
 once the property of the United States has passed, that question 
 must be resolved by the laws of the United States but that 
 whenever, according to those laws, the title shall have passed, 
 then that property, like all other property in the State, is 
 subject to State legislation, so far as that legislation is con- 
 sistent with the admission that the title passed according 
 to the laws of the United States."^ But it must be borne in 
 mind, that from the moment that tracts of land which were 
 once public, and which border upon a stream, and are situ- 
 ated within a State or Territory, have come into private 
 ownership of patentees or grantees of the Government, all 
 controversies as to their rights upon the subject as to whether 
 their owners are riparian proprietors or otherwise must be 
 determined and regulated wholly by the laws of the State 
 or Territory in which the land is located, as Congress, after 
 the title has once passed from the Government, has no power 
 to legislate concerning the title of lands and the incidents 
 thereto situated within a State. 
 
 § 147. Grantee Takes Subject to Conditions Annexed to 
 Grants. — The United States as the proprietor of the public 
 
 1 Irwin vs. Marshall, 20 How. 2 13 Peters 498. 
 
 561; Vansickle vs. Haines, 7 3 Irvine vs. Marshall, 20 How. 
 
 Nev. 249; Union M. & M. Co. vs. 558. 
 Ferris, 2 Saw. 176.
 
 § 147]. LANDS AND WATERS. 223 
 
 lands has bj' virtue of its proprietorship, the absolute and 
 unqualified right of disposal,^ and neither a State nor Territo- 
 rial legislature can dictate, modify or embarrass in any man- 
 ner the right of Congress to the primary disposal of the 
 public lands.2 Also an inland lake or stream incapable of 
 being navigated, is naturally a part and parcel of the land 
 itself, inseparably annexed to the soil, and as such passes to 
 the grantee or patentee of the soil from the United States, 
 unless certain conditions are annexed, either in the grant 
 itself, or by general Act of Congress, prior to the grant. But 
 the Federal Government as proprietor of the public domain 
 has the power to annex conditions to grants. It may do this 
 either in the grant or patent itself, conveying each particular 
 portion of the public domain to its grantees and patentees, or it 
 may by Congressional legislation adopt any general regula- 
 tions or impose any conditions or limitations upon the use of the 
 public domain, upon all persons who acquire title to portions 
 of the public lands from the Government. And the title so 
 acquired will be held by the grantee thereof, subject to such 
 conditions and limitations. Congress has provided by gen- 
 eral statute that, "whenever, by priority of possession, rights 
 to the use of water for mining, agricultural or other purposes, 
 have vested and accrued, and the same are recogni/.ed 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 purpose 
 herein specified, is acknowledged and confirmed. "^ Also by 
 another section of the Act of 1866, it is enacted: "As a con- 
 dition of sale, in the absence of necessary legislation by Con- 
 gress, the local legislature of any State or Territory may 
 provide rules for working mines, involving easements, drain- 
 age and other necessary means, to their complete development; 
 
 1 Ante vSectioii 134; Irvine vs. Jourdan vs. Barratt, 4 How. 169; 
 Marshall, 20 How. 558. United States vs. Gratiot, 14 Tet. 
 
 2 Irvine vs. Marsliall, 20 How. 526. 
 
 558; Richertvs. Felps, 6Wall. 160; a Act of 1866, U. S. Rev. ,Stat. 
 
 Gibson vs. Chouteau, 13 Wall. 92; 2339.
 
 224 JURISDICTION OVER [§ 147, 148 
 
 and these conditions shall be fally expressed in the patent."^ 
 The patent spoken of is that issued by the United States to 
 the purchasers of the public domain. Thus by a general 
 statute, Congress has provided for a right of way over the 
 public lands for ditches and canals for all those who have 
 made an appropriation of water before the lands were disposed 
 of, and that all grantees of the Government who subsequently 
 acquire portions of this land, shall take and hold this title 
 subject to such existing rights of way; or that all grantees of 
 public lands bordering upon a stream or lake shall hold their 
 titles subject to any previously existing appropriation of 
 water; or further that all grantees of the public lands shall 
 take their titles, subject to the local customs or laws of the 
 State within which the lands are situated concerning the uses 
 of water for mining, irrigating, agricultural and other pur- 
 poses.^ 
 
 § 148. Same. — Same. — Autliorities Discussed. — It must be 
 borne in mind that these conditions and limitations to the title 
 to the lands which originally belonged to the public domain 
 are not confined to the immediate grantees of the Federal 
 Government. If the grantee of the Government sells his land, 
 his purchaser only acquires the same title that he himself had, 
 and takes the land also "subject to the same conditions and 
 limitations. Also on the other hand, if the public land bor- 
 dering upon a stream or lake and situated within a State, should 
 all be conveyed to private persons, free from any condition or 
 limitation, Congress would have no power to control such per- 
 sons in the use of their lands or in the use to which they put 
 the waters of the stream or lake upon which their lands bor- 
 der. If, also, the streams and lakes are wholly situated on 
 lands which have been granted to a State and no appropria- 
 tion of the water of such streams or lakes was ever made 
 prior to the grant then the grant carries all right, title or 
 interest in and to the waters to the State, and the waters must 
 be appropriated under its laws. However, if all or part of the 
 water had been appropriated prior to the grant, then the State 
 
 1 United States Rev. Stat. 2338. 670; Union M. & M. Co. vs. Fer- 
 
 2Basey vs. Gallagher, 20 Wall ris, 2 Sawyer 176.
 
 § 148]. LANDS AND WATERS. 225 
 
 as well as any other grantee of the Government takes the land 
 from the United States, subject to all "vested rights." The 
 power to legislate and to prescribe rules after once the title to 
 lands which were public has passed in the first instance to in- 
 dividuals, corporations or states, belongs exclusively to the 
 State as a part of its supreme municipal authority over persons 
 and property within its jurisdiction. 
 
 Mr. Justice Hilh'er in rendering the opinion in the case of 
 Union Mill and Mining Co. vs. Ferris,^ discusses this general 
 subject at some length, and the part relating thereto is well 
 worth quoting in this connection. He says, relative to Sec- 
 tion nine, of the Act of Congress of July 26th, 1866, which 
 we quote as follows: "It gives the possessor of a quartz 
 lode a right of pre-emption, and it declares that the person 
 who has acquired a right to the use of water by priority of 
 possession shall be maintained and protected in the same if 
 such right is recognized and acknowledged by the local cus- 
 toms, laws and decisions of Courts. The policy of this enact- 
 ment, so far at least as it relates to agricultural districts, may 
 be doubtful, but it is the law of the land, and the Courts must 
 carry out what appears to be the intention of the legislature, 
 as therein expressed. And that, as indicated by the Act, ap- 
 pears to be to grant to the owner of possessory rights to the 
 use of water under local customs, laws and decisions the ab- 
 solute right to such use, which the Government alone could 
 grant. Under this law, when a possessory right to the use of 
 waters is claimed, whether or not such right exists will be 
 determined by reference to the local customs, laws, decisions, 
 and the question will be determined just as it would have been 
 had it been raised between occupants before the title to the 
 land had passed from the Government. When the right is 
 thus ascertained the statute has the force of confirming it to 
 the person entitled under the local laws and decisions. * * * 
 As against these patents, neither can claim any right to the 
 use of the water by virtue of prior appropriation or possession, 
 but in respect to them their rights to the water must be fixed by 
 the law applicable to them as owners of the soil through which 
 
 1 2 Sawyer, 176.
 
 226 JURISDICTION OVER LANDS AND WATERS. [§ 148 
 
 the stream naturally flows. But if when the Act was passed, 
 the defendant had such a right of priorit}^ of possession as that 
 Act contemplates, upon the construction which must be given, 
 that right is confirmed in him, and he is entitled to protection 
 as against one claiming as riparian proprietor merely, through 
 a patent issued after, and when no right had vested in the 
 patentee before the Act became a law. The statute is in effect 
 incorporated into such subsequent patent, and operates as an 
 exception out of the estate granted. "^ 
 
 iHobart vs. Ford, 6 Nev. 77; 53 Cal. 135; Osgood vs. El Dorado 
 
 Shoemaker vs. Hatch, 13 Nev. Water Co., 56 Cal., 571; Himes vs. 
 
 261; Rivers vs. Burbank, 13 Nev. Johnson, 61 Cal. 259; Coffin vs." 
 
 398; Jones vs. Adams, 19 Nev. 78; Left Hand Ditch Co., 6 Colo. 443; 
 
 Broder vs. Natoma Water Co., 50 Woodruff vs. North Bloomfield M. 
 
 Cal. 621; loi U. S. 274; Titcomb vs. Co., 8 Sawy. 626; 9 Id. 441 
 Kirk, 51 Cal. 288; Cave vs. Crafts,
 
 CHAPTER VI. 
 Methods by Which Appropriations of Water are Effected. 
 
 Section. — 
 
 149. Scope of Present Chapter. 
 
 I. ESSENTIALS OF AN APPROPRI- 
 
 ATION. 
 
 150. Appropriation of waters for 
 
 a "beneficial use." 
 
 151. Same. — Authorities dis- 
 
 cussed. 
 
 152. Same. — Essentials of appro- 
 
 priations by canal com- 
 panies. 
 
 153. Same. — Combs vs* Agricul- 
 
 tural Ditch Company. 
 
 154. Change of use of water. 
 
 II. METHOD BY WHICH AN AP- 
 PROPRIATION IS EFFECTED. 
 
 155. Who are entitled to appro- 
 
 priate waters. 
 
 156. Title to the soil unnecessary. 
 
 157. Notice of intent to appro- 
 
 priate. 
 
 Section, — 
 
 158. Same. — Continued. 
 
 159. Ph^'sical acts necessary to 
 
 constitute an appropriation. 
 
 160. Reasonable diligence must be 
 
 used in completion of works. 
 
 161. vSame. — Continued. 
 
 162. There must be an actual diver- 
 
 sion of the water. 
 
 163. Same. — Continued. 
 
 164. There must be an actual user 
 
 of the water appropriated. 
 
 165. All of the water appropriated 
 
 must be used. 
 
 166. Same. — Continued. 
 
 167. When the appropriation is 
 
 complete. 
 
 168. Doctrine of relation. 
 
 169. Same. — Continued. 
 
 170. Modifications of above rules 
 
 by local laws. 
 
 171. Summar}' of chapter. 
 
 § 149. Scoi)e of Present Chapter. — Having shown how 
 the appropriation of water npoii the public domain originated, 
 and having followed the history of the doctrine down to the 
 present time, we will devote this chapter to a discussion of the 
 requisite essentials of a valid appropriation of waters, the theory 
 of an appropriation for a "beneficial use," and next to the 
 methods by which an appropriation is effected. 
 
 1. Essentials of an Appropriation. 
 
 § 1.5(». ApproiH'iation of Waters for a '' Beneficial Use." 
 
 — The Supreme Court of California defines the word "ai)pro- 
 priation," as follows: "Appropriation is the intent to take,
 
 228 
 
 APPROPRIATION OF WATER. 
 
 [§ 150 
 
 accompanied by some open physical demonstration of the in- 
 tent, and for some valuable use."^ And all the authorities 
 agree upon the proposition, that in order to make an appro- 
 priation of waters a valid one, there must be an intention 
 upon the part of the appropriator to appl}^ the waters to some 
 beneficial use; and without this intention of applying it to some 
 useful purpose, within a reasonable time, it is held that no valid 
 appropriation has been made and that the water is subject to 
 appropriation by other parties.^ The very birth and life of a 
 prior right to the use of water is the intention to apply the 
 same to some beneficial purpose.^ This intention goes to the 
 very foundation of the act of appropriation, and must be evi- 
 denced by a constancy, or steadfastness of purpose or labor as 
 is usual with men engaged in like enterprises, who desire a 
 speedy accomplishment of their designs; such assiduity in its 
 prosecution as will manifest a bona fide intention to complete 
 
 1 MeDonald vs. River Co., 13 
 Cal. 222, 223. 
 
 SMaeris vs. Bicknell, 7 Cal. 261; 
 10 Cal. 217, where it was held that 
 merely cutting a ditch for a drain, 
 and using the water for no useful 
 purpose gives no priority. 
 
 McKinney vs. Smith, 21 Cal. 
 374; Weaver vs. Eureka Lake Co., 
 15 Cal. 271; where it was held, that 
 to render valid a claim of water b}' 
 appropriation, the claim must be 
 for some useful or beneficial pur- 
 pose, or in contemplation of a 
 future appropriation for such pur- 
 pose, for the parties claiming it. 
 A claim for mere speculation will 
 not answer. 
 
 Thomas vs. Guiraud, 6 Colo. 
 540; Ortman vs. Dixon, 13 Cal. 33; 
 Davis vs. Gale, 32 Cal. 33, where 
 Sanderson, J. , said: "Appropria- 
 tion, use, and non-use are the tests 
 of his right; and 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 appropri- 
 ated 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 end- 
 less complications, and most mate- 
 rially impair the value of water 
 rights and privileges." 
 
 Woolmanvs. Garringer, i Mont. 
 543; McDonald vs. Bear River Co., 
 13 Cal. 220; McDonald vs. Askew, 
 29 Cal. 200; Gibson vs. Puchta, 33 
 Cal. 310; Dick vs. Caldwell, 14 
 Nev. 167; Dick vs. Bird, 14 Nev. 
 161; Monroe vs. Ivie, 2 Utah 535. 
 
 3 Combs vs. Ag. Ditch Co., 17 
 Colo. 146; 28 Pac. Rep. 966, where 
 it was held that: a mere diversion 
 of water is not an appropriation of 
 it within the meaning of the con- 
 stitution, a diversion without ap- 
 plication to a beneficial use is 
 unlawful; and also that the privi- 
 lege of diverting water extends 
 only to uses truly beneficial, and 
 not to purposes of speculation.
 
 § 150, 151]. APPROPRIATION OF WATER. 229 
 
 the construction of the works necessary to carry the water to 
 the place where it is to be used, and the application of the same 
 to the use intended .^ This purpose contemplated for the use of 
 the water may be irrigation for agricultural or horticultural 
 purposes, mining, milling, manufacturing, domestic or any 
 other purpose for which water is needed to supply the natural 
 and artificial wants of man, provided that it be for a benefi- 
 cial use.- And a right acquired by an appropriation for any 
 of the above named purposes stands upon the same footing, 
 and an appropriation or use of the water for one of these pur- 
 poses is not justifiable when it interferes with the prior ap- 
 propriation or location for one of the others.'^ 
 
 § 151. Same.— Autliorities Discussed.— The decisions have 
 settled the question that where a person makes an appropria- 
 tion of the waters of a stream there must be, first, some actual 
 beneficial purpose existing at the time, or contemplated in the 
 future, as the object for which the appropriator is to use the 
 water; second, such intention must be followed up by the ap- 
 propriator proceeding to complete his ditches or canals for 
 conveying the water to the place where it is needed without 
 delay. And if there is no actual intention at the time the ap- 
 propriation is made to apply the water to some of the pur- 
 poses named, or there is unnecessary delay in the completion 
 of the works for the application of the water, then a subse- 
 quent appropriator who first diverts and applies the water, for 
 a beneficial purpose, has the better right. ^ In that now cele- 
 brated case of Lux vs. Haggin,^ McKinstry, J., said: "The 
 appropriator does not necessarily act as the agent of the State 
 
 1 vSee authorities cited above. Orttnan vs. Dixou, 13 Cal. 34; Gib- 
 
 Kimball vs. Gearhart, 12 Cal. 27; son vs. Puchta, 33 Cal. 310; Felix 
 
 Ophir S. Mg. Co. vs. Carpenter, 4 vs. Los Angeles, 58 Cal. 73; Elms 
 
 Nev. 534. vs. Los Angeles, 58 Cal. 80; Basey 
 
 SPomeroy on Riparian Rights, vs. Gallagher, 20 Wall. 682; Jen- 
 Sec. 47. nison vs. Kirk; 98 U. S. 453; 
 
 3 McDonald vs. Bear River Co., Munroe vs. Ivie, 2 Utah 535; Lehi 
 
 13 Cal. 220; 15 Cal. 145; Fo.ster vs. Ir. Co. vs. Moyle, 4 Utah 327. 
 Spring Creek Co., 5 Cal. 395; 4 Weaver vs. Eureka Lake Co., 
 
 Ramsay vs. Chandler, 3 Cal. 90; 15 Cal. 271; and authoiities cited 
 
 Leigh vs. Independent Ditch Co., 8 above. 
 Cal. 328; Ball vs. Kehl, 87 Cal. 505; O69 Cal. 255; 10 Pac. Rep. 674.
 
 230 APPEOPRIATION OF WATER. [§ 151 
 
 emploj'ing the power of eminent domain for the benefit of the 
 public, but by his appropriation makes the running water his 
 own, subject onlj' to the test that he shall employ it for some 
 useful purpose."^ The actual appropriation, diversion and 
 application of water to a useful purpose gives a perfect title 
 over all previous intentional appropriations not consummated 
 or carried into effect; and where a ditch has been dug and a 
 diversion of water has been made, simply for the purpose of 
 drainage, and not with the bona fide intention of appropriat- 
 ing the water thus diverted and applying the same to some 
 beneficial use, and other parties afterwards have dug ditches for 
 the express effect of taking the water and applying it to some 
 such purpose, it is well settled that the latter parties have gained 
 a priority over the first, and all grantees holding under them.- 
 So also it has been held that an appropriation for the mere 
 purpose of speculation is nugatory and void.^ "If the law 
 were to be declared otherwise," saj^s Mr. Justice Elliot, in 
 Combs vs. Agricultural Ditch Co.,^ "if ditch companies were 
 at liberty to divert water without limit, and at the same time 
 make the ownership of stock an absolute condition precedent 
 to the right to procure water from their irrigating canals, 
 water rights would soon become a matter of speculation and 
 monopol}^ and the tillers of the soil would have to pa^^ ex- 
 orbitant rates for the use of the water, or our arid lands 
 would become unproductive. The Constitution provides that 
 the waters of natural streams may be diverted to beneficial 
 use; but the privilege of diversion is granted only for uses 
 truly beneficial, and not for the purpose of speculation. * * * 
 An excessive diversion of water cannot be regarded as a 
 diversion to beneficial use within the meaning of the Constitu- 
 tion. Water in this country is too scarce, and consequently 
 
 iDe Necochea vs. Curtis, So Cal. 33; Woolman vs. Garringer, i 
 
 397; Vau Biber vs. Hilton, 84 Cal. Mont. 535. 
 
 585; Alta Land Co. vs. Hancock, '^ Weaver vs. Eureka Lake Co., 
 
 85 Cal. 219, 229; United Laud Assn, 15 Cal. 271; Combs vs. Agricultural 
 
 vs. Knight, 85 Cal. 418, 477. Ditch Co., 17 Colo. 146; 28 Pac. 
 
 2Maeris vs. Bicknell, 7 Cal. 262; Rep. 966; Dick vs. Caldwell, 14 
 
 McKinney vs. Smith, 21 Cal. 381; Nev. 167; Bilew vs. Paisley, 18 
 
 N. C. & S. C. Co. vs. Kidd, 37 Or. 47. 
 
 Cal. 312; Davis vs. Gale, 32 Cal. ^\~ Colo. 152; 28 Pac. Rep. 966.
 
 § 151, 152]. APPROPRIATION OF WATER. 231 
 
 too precious, to admit of waste." In any case, in order that 
 an appropriation ma)' hold, it must conform with the laws of 
 the United States and the laws of the State or Territory 
 wherein the same is made. A person who has simpl}' used 
 the water of a stream by proper diversion, and who has not 
 complied with the laws of the State for the appropriation of 
 the same, may be enjoined from the further use of the water 
 by a subsequent appropriator who has complied with all the 
 laws. But as against anj^ person who also has not complied 
 with the laws of appropriation, the person actually using the 
 water for beneficial purposes has the first right. 
 
 § 152. Same— Essentials of Appropriation by Canal Com- 
 panies. — As we have seen in the previous section, not only 
 must the appropriation be prior in time but also it must be 
 legal in all respects or it is not valid. And, after the appro- 
 priation is made, the true test as to whether the water can be 
 held or not, is whether the same has been or is about to be 
 applied to some beneficial use, although the method of divert- 
 ing or carrying the same where it is needed, or of making 
 such application is immaterial.^ But we now come to a some- 
 what different phase of the case or question, and that is this: 
 Is the delivery of water from a canal or ditch company to the 
 consumer for the purpose of application of the same to his 
 land for irrigation, or to be used by him for any other bene- 
 ficial purpose, and when the same is so used, such an appropria- 
 tion for a beneficial purpose, for which the water can be legally 
 diverted from the natural stream and held by the canal com- 
 pany ? 2 In other words, can one party appropriate and divert 
 the water, and can another party apply it to some beneficial 
 purpose, and still be within the law, so that the first party can 
 hold the water appropriated ? Upon this question the weight 
 
 1 Thomas vs. Ciuiraud, 6 Colo. theproprietor thereof, and as such, 
 
 530. could sell and deliver it for irriga- 
 
 2In the case of Wyatt vs. Lari- tion purpcses, and that right could 
 
 nier & Weld Ir.'Co., i Colo. App. be defeated only by a failure of 
 
 480; 29 Pac. Rep. 906, the Court held application of the water to a bene- 
 
 that a canal company diverting ficial use. But the Supreme Court 
 
 water to a beneficial use Ijecame overruled the decision of the
 
 232 
 
 APPROPRIATION OF WATER. 
 
 [§152 
 
 of authority seems to hold, that if all the water appropriated 
 by the ditch company is applied, either by the company or by 
 the parties to whom it sells the water, to a beneficial use, 
 then the ditch compan^^ can hold all of the water appropriated 
 by it. But, on the other hand, if the company should appro- 
 priate and divert more water than it can or does use for any 
 beneficial purpose, or more than it sells for that purpose, the 
 surplus water is open for reappropriation; or mandamus will 
 lie against the ditch company to compel it to deliver to con- 
 sumers who will so apply it to some beneficial use or purpose.^ 
 This rule is based upon the principle that water after it has 
 been actually appropriated and diverted is such property, that 
 a person or company may sell all or. part of it, and still hold 
 the appropriation, provided all the water diverted is used for 
 a beneficial purpose.^ 
 
 Thus by the canal company making the appropriation and 
 diversion, and selling and delivering the water to consumers 
 to be used by them for some beneficial use or purpose, the 
 separate acts of the canal compan}^ as carriers, and of the 
 Court of Appeals, and Mr. Justice Ft. Morgan Land & Canal Co. vs. 
 
 So. Platte Ditch Co., (Colo.) 30 Pac. 
 Rep. 1032, where the Court held 
 that the awarding of priorities to 
 ditches, in excess of the amount 
 of water actually appropriated at 
 the time, is error. A diversion 
 and promise to use in the future 
 will not support such a decree. 
 Canal Co. vs. Southworth, 13 Colo. 
 hi; 21 Pac. Rep. 1028; Strickler 
 vs. Colo. Springs, 16 Colo. 61; 26 
 Pac. Rep. 313; Combs vs. .Agricul- 
 tural Ditch Co., 17 Colo. 141; 28 
 Pac. Rep. 966. 
 
 2 Strickler vs. Colo. Springs, 16 
 Colo. 61; 26 Pac. Rep. 313, where 
 the Court held that a priority to 
 the use of water for irrigation is a 
 property right, and may be sold 
 and transferred separately from 
 the land in connection with which 
 the right ripened. 
 
 Goddard in rendering the opinion 
 of that court said: " We adhere to 
 the doctrine that such a canal 
 company is not the proprietor of 
 the water diverted by it, but that 
 ' it must be regarded as interme- 
 diate agency existing for the pur- 
 pose of aiding consumers in the 
 exercise of their constitutional 
 rights, as well as private enter- 
 prise prosecuted for the benefit of 
 its owners.' " 33 Pac. Rep. 147. 
 Citing, Wheeler vs. Irrigation Co. 
 10 Colo. 582; 17 Pac. Rep. 487; 
 Farmer's High Line Canal Co. vs. 
 Southworth, 13 Colo, iii; 21 Pac 
 Rep. 1028; Strickler vs. Citj' of 
 Colorado Springs, 16 Colo. 61; 26 
 Pac. Rep. 313; Combs vs. Agricul- 
 tural Ditch Co., 17 Colo. 146; 28 
 Pac. Rep. 966. 
 
 1 Wheeler vs. Northern Colo. Ir. 
 Co., 9 Colo. 248; 17 Pac. Rep. 487;
 
 § 152, 153]. APPROPRIATION OF WATER. 2.33 
 
 consumers are joined one to the other to complete the single 
 act of appropriation/ which is held to be valid. 
 
 § 153. Slime.— Combs vs. Agriciiltiinil Ditch Company.— - 
 
 In the State constitution of Colorado is to be found the fol- 
 lowing provisions, Article i6, Sec. 6: "The right to divert 
 unappropriated waters of anj- natural stream to beneficial uses 
 shall never be denied. Prioritj^.of appropriation shall give 
 the better right as between those using the water for the same 
 purpose." * * * These provisions, as is readily seen, are 
 simply the embodiment in the highest law of the State of the 
 principles of law which govern the use of water upon the pub- 
 lic lands of the United States, and which were first founded 
 upon the customs and regulations of the earlj^ miners of Cali- 
 fornia. In the above entitled action, which is a ver}- recent 
 one, the plaintiff Combs applied for a writ of mandamus 
 against the defendant. The Agricultural Ditch Company, to 
 compel it to supph^ him with water for irrigation purposes. 
 The defehdant had theretofore refused, although it had suffi- 
 cient water in its ditch, and the plaintiff had tendered to the 
 defendant company the amount of money fixed by the Board 
 of County Commissioners, and required by law, as the maxi- 
 mum rates to be charged for the use of water, whether fur- 
 nished by individuals or corporations. In the District Court 
 the application for a writ of mandamus was denied. Mr. 
 Justice Elliot, in giving the opinion of the Supreme 
 Court, which reversed the judgment below, said upon the 
 point discussed in our last section: " The unappropriated 
 waters of every natural stream belong to the public and are 
 subject to appropriation bj' the people to beneficial use. Pri- 
 ority of appropriation to actual beneficial use, and not mere 
 ownership of stock in a ditch compan}-, gives the better right 
 to such use. Individuals may organize a company, either by 
 or without incorporation, for the construction of an irrigating 
 ditch, and may by such means divert the unappropriated 
 waters of a natural stream. They ma}' provide that their sev- 
 eral interests in such an enterpri.se shall be represented by 
 shares of stock. But neither the company nor any stockholder 
 
 I3 Irrigation Age 139. -17 Colo. 146; 28 Pac. Rep. 966.
 
 234 APPROPRIATION OF WATER. [§ 153 
 
 of the company can withhold the water from beneficial use, 
 nor reserve it for the future use of junior appropriators to the 
 prejudice of prior appropriators, nor to the exclusion of those 
 who in the meantime may undertake, in good faith, to make 
 a valid appropriation thereof. Undoubtedly, those who by 
 labor or by the payment of mone}' 'actually construct an irri- 
 gating ditch may therebj' acquire a prior right to the water 
 which may be diverted therein, provided they apply the same 
 to beneficial use within a reasonable time after such diversion. 
 But they cannot postpone the exercise of such right for an un- 
 reasonable time, so as to prevent others from acquiring a right 
 to the water; nor can they thus acquire a right to dispose of 
 the water contrary to the priority rule. Those who construct 
 ditches and divert water for general purposes of irrigation 
 must within a reasonable time apply the water to beneficial 
 use, or else, upon proper application and for proper considera- 
 tion, they must dispose of the same to those who are ready to 
 make beneficial use of it. If ditch companies are .unwilling 
 to be charged with such duties and responsibilities, they must 
 leave the water in the natural stream. The mere diversion of 
 the water is not an appropriation of it, within the meaning of 
 the Constitution. There must be an application of the water 
 to beneficial use within a reasonable time or the diversion is 
 unlawful. * * * In a carefulh^ considered opinion recently 
 delivered b}' Mr. Justice Hayt, in the case of Strickler vs. 
 Cit}^ of Colorado Springs, i6 Colo. 6i, 26 Pac. Rep. 313, this 
 Court held that 'a priority' to the use of water for irrigation is 
 a property right, and may be sold and transferred separately 
 from the land in connection with which the right ripened.' 
 It must not be inferred from this language that such prioritj^ 
 ma}^ be secured b}^ the mere acquisition of stock in an irrigat- 
 ing company without applying the water to beneficial use. 
 An owner of irrigating stock cannot thus carry prior rights to 
 the use of water in his pocket for an indefinite or unreasonable 
 time, and thereby prevent others from acquiring a do?ia fide 
 priority by actual use. The ownership of a prior right to the 
 use of water is essentiall}^ different from the ownership of stock 
 in an irrigating compan3^ The ownership of the stock, like 
 the title to other property, ma}- be acquired by descent of pur-
 
 § 153]. APPROPRIATION OF WATER. 235 
 
 chase. The ownership of the prior right can be acquired 
 originally only by the actual beneficial use of the water. The 
 very birth and life of a prior right to the use of water is actual 
 user. A stockholder in an irrigating company who makes an 
 actual application of water from the company's ditch to bene- 
 cial use may, by means of such use, acquire a prior right 
 thereto; but his title to the stock without such use gives him 
 no title to the priority. He may transfer his stock to whom 
 he will, but he can only transfer his priorit}' to some one who 
 will continue to use the water. * * * jn so far as the de- 
 fense was placed upon the ground that the stockholders were 
 actual prior appropriators of water from the ditch to beneficial 
 use, as explained in this opinion, the defense was proper; and 
 if, as a matter of fact, the actual appropriations of w^ater by 
 the stockholders were prior to the application of the petitioner, 
 and if their appropriation \vas equal in the aggregate to the 
 whole amount of water carried by the ditch, the application of 
 the petitioner was properly refused. If, on the other hand, 
 there was a surplus of water remaining in the ditch after sup- 
 plying prior appropriators, the petitioner was entitled to be 
 supplied out of such surplus. The legal theory upon which a 
 case of this kind should be tried is very simple, however diffi- 
 cult it may be to apply the law to the evidence. It is plain 
 that the quantity of land and the character of the soil which 
 the appropriators of water from the ditch have under cultiva- 
 tion, as well as their actual prior appropriations of water to 
 the irrigation of such lands, and not the number of shares of 
 stock that they may own, are the important matters to be con- 
 sidered in determining such a controversy. In the trial of 
 such an issue it is also important to observe that no matter 
 how early a person's priority of appropriation may be, he is not 
 entitled to receive more water than is necessary for his actual 
 use. An excessive diversion of water cannot be regarded as a 
 diversion to beneficial use, within the meaning of the Constitu- 
 tion. Water in this country is too scarce, and consequently 
 too precious, to admit of waste. The Constitutional rule of 
 distribution, ' first come, firstserved,' does not imply that the 
 prior appropriator may be extravagantly prodigal in dealing 
 with this peculiar bounty of nature. We are aware that it
 
 236 APPROPRIATION OF WATER. [^ 153, 154 
 
 may not be practicable to attain mathematical exactness in 
 measuring the flow of water, but a reasonable approximation 
 to substantial accuracy should be aimed at in determining 
 controversies relating to water supply."^ 
 
 § 154. Change of Use of Water. — The application of the 
 use of water for which the appropriation is made must be 
 continuous. The water must not be allowed to run to waste 
 for any length of time, or it will be treated as an abandon- 
 ment, and hence open for appropriation. But when water 
 has been lawfully appropriated, the priority thereby acquired is 
 not lost by changing the use for which it was first appro- 
 priated and applied, or the place at which it was first employed, 
 provided that the alterations made from time to time shall 
 not be injurious tb the rights acquired by others, prior to the 
 change. This was held to be the law at a very early period 
 as will be seen from the authorities cited. ^ It will be seen 
 upon examination, that the authorities hold conclusively, that 
 in all cases the effect of the change upon the rights of others 
 is the controlling consideration, and that in the absence of 
 injurious consequences to others, any change which the party 
 chooses to make is legal and proper, either as to the place of 
 using the water, or the use of the water. In fact this is also 
 the common law rule upon the subject. "* So if the original 
 appropriation was made to run a saw mill, the w^ater may be 
 
 1 See also Canal Co. vs. South- as against one who has dug a 
 
 worth, 13 Colo, m, 21 Pac. Rep. ditch from the same stream before 
 
 1028; Strickler vs. City of Colorado the change is made. Kidd vs. 
 
 Springs, 16 Colo. 61; 26 Pac. Rep. Laird, 15 Cal. 162; Coffin vs. Left 
 
 313. Hand Ditch Co., 6 Colo. 443; 
 
 2Maeris vs. Bicknell, 7 Cal. 261; Thomas vs. Guiraud, 6 Colo. 530, 
 
 Hill vs. Smith, 27 Cal. 476; Davis Sieber vs. Frink, 7 Colo. 148; Dorr 
 
 vs. Gale, 32 Cal. 26; where it was vs. Hammond, 7 Colo. 79; Butte 
 
 held by the Court that: "A person T. M. Co. vs. Morgan; 19 Cal. 616; 
 
 who has appropriated the water McDonald vs. Askew, 29 Cal. 206; 
 
 of a stream, and caused it to flow N. C. & S. C. Co. vs. Kidd, 37 Cal. 
 
 to a particular place by means of 311; Junkans vs. Bergin, 67 Cal. 
 
 a ditch for a special use, may 270. 
 
 afterwards change the use to ^Angell upon Water Courses, 
 
 which he first applied the water. Sees. 224, 226, 227; Belknap vs. 
 
 and the place at which he used it, Trimble, 3 Paige Ch. 605; Whittier 
 
 without losing his priority of right, vs. Cacheco Mfg. Co., 9 N. H. 454.
 
 § 154]. APPROPHIATIOX OF WATER. 237 
 
 used to run a grist mill, for mining, irrigating or for some 
 other useful purpose, and the appropriator will lose no right 
 that he may have acquired by virtue of his appropriation so 
 long as he injures the rights of no one else, acquired prior to 
 the change.^ So if one has made a valid appropriation of 
 water of a stream, by means of a ditch for the purpose of irri- 
 gating a certain tract of land, or working a particular mining 
 claim, or for anj'^ other particular use, at a certain locality, he 
 may, after he has sufficiently irrigated the tract or worked out 
 the mining claim, or abandoned the same, extend his ditch 
 and use the water at other points without losing his priority 
 right, as against one who afterwards dug a ditch from the same 
 stream, and appropriated the water before the irrigation was 
 completed or the claim washed out. The mere change in 
 the place of use, from one localit}^ to another, b}' the extension 
 of the ditch, or by construction of branches of the same ditch, 
 does by no means effect the prior rights of the first appro- 
 priator. Appropriation, use, or non-use are the tests of his 
 right; and the place of use or the character of the same is not. 
 When he has made his appropriation, in manner required 
 by law, he becomes entitled to the use of the entire quantity 
 of water which he has appropriated at any place where he 
 may choose to convey it, and for any useful or beneficial 
 purpose to which he may choose to apply it. An}^ other rule 
 would lead to endless complications and most materially 
 impair the value of water rights and privileges.^ But on the 
 other hand, the mode of appropriation or the point of diver- 
 sion cannot be changed by the first appropriator so as to 
 interfere with the rights acquired b}^ subsequent appropri- 
 ators prior to the change.^ 
 
 'Ibid; McDonald, et al vs. Bear a ibid; Columbia Mining Co. 
 
 River etc. M. Co. 13 Cal. 220. vs. Holter, i Mont. 296. See 
 
 2lbid; Maeris vs. Bicknell, 5 Cal. Butte M. Co. vs. Morgan, 19 
 
 261; Davis vs. Gale, 32 Cal. 27; Cal. 609, where it was held that: 
 
 Woolman vs. Garringer, i Mont. A person appropriating and divert- 
 
 535; Fabian vs. Collins, 2 Mont. ing the water of a stream at a 
 
 510; Correa vs. Frietas, 42 Cal. given point, cannot afterwards 
 
 339; McKinney vs. Smith, 21 Cal. change the point of diversion to 
 
 374. I"\ilton vs. Swan R. P. M. Co. the prejudice of a subsequent 
 
 12 Col. 12. locator. See also Simpson vs. Wil-
 
 238 APPROPRIATION OF WATER. [§ 155 
 
 II. Method by Wliicli an Appropriation is Ettfected. 
 
 §155. Who are Entitled to Appropriate Waters. — All 
 
 the inhabitants of the States and Territories of the arid region 
 who are qualified to own and possess lands have the right to 
 appropriate the waters of the natural streams or lakes of that 
 region, for any beneficial use or purpose; also the right to 
 construct public or private ditches and canals, and use the 
 same for the purpose of conducting the water from the natural 
 river, creek, stream or lake to the place where it is to be used. 
 An Indian may acquire a right to use the water on the public 
 lands by an appropriation, and may maintain an action for the 
 diversion of such water. The right would also carry with it 
 the right to construct the' necessary canals and ditches and 
 keep them in repair; and those who might obtain title under 
 him would also have the same authority.^ Upon this question, 
 in the case of lyobdell vs. Hall, the Supreme Court of Nevada, 
 said: "At common law anj^ person, either Christian or 
 heathen, alien resident or non-resident, with the single excep- 
 tion of alien enemies, might bring suit to enforce any civil 
 rights they might possess. It is true that aliens under the 
 common law could not lawfully hold real estate, and transmit 
 the same to their heirs; j'^et the}' might buy it, and maintain 
 trespass for injuries thereto, or their lessee might maintain 
 ejectment. It has been held in the United States, that an 
 alien might maintain an}^ personal action to enforce his rights 
 to land by him purchased until proper steps had been taken 
 to declare such lands forfeited to the State. It has been 
 doubted whether he could maintain a real action, though it 
 is said that he might defend himself against such action. 
 (Fairforth vs. Hunter's I^essee, 7 Cranch, 603, where the 
 whole subject is discussed.) 
 
 Hams, 18 Nev. 432; Lobdell vs. Wixson vs. Devine, 80 Cal. 385; 
 
 vSimpson, 2 Nev. 274; Proctor vs. Byrne vs. Crafts, 73 Cal. 641; Alder 
 
 Jennings, 6 Nev. S3; Barnes vs. G. M. Co. vs. Hayes, 6 Mont. 631; 
 
 vSabron, 10 Nev. 217; American Rominger vs. Squares, 9 Colo. 327; 
 
 Co. vs. Bradford, 27 Cal. 360; Nev- See also chapter VIII, section 248. 
 
 ada W.Co. vs. Powell, 34 Cal. 109; 1 Lobdell vs. Hall, 3 Nev. 507, 
 
 Higgins vs. Barker, 42 Cal. 233; 516.
 
 § 155]. APPROPRIATION OF WATER. 239 
 
 "If then all persons, without regard to nationality, are in 
 this country allowed to maintain any action to enforce their 
 rights to the enjoyment of all property, personal or real, we 
 see no reason why an Indian who has appropriated water on 
 the public lands of the United States might not maintain an 
 action for the diversion of that water as well as any other 
 person. If an Indian could maintain an action for diversion 
 of water, then he certainly would have a fixed interest in the 
 waters so diverted, and a clear right to repair any temporary 
 damage to his ditch or dams." 
 
 Canal companies and corporations may also appropriate 
 waters in their company or corporate names, and for this pur- 
 pose a corporation organized and existing under the law" of a 
 State is to be considered a citizen within the law, for those 
 purposes.^ And it was decided in McKinley vs. Wheeler, ^ that 
 a corporation created under the laws of one of the States of 
 the Union, " all of whose members are citizens of the United 
 States, is competent to locate or join in the location of a min- 
 'ing claim upon the public lands of the United States, in like 
 manner as individual citizens."'^ And it therefore follows 
 that if a corporation can appropriate lands upon the public 
 domain, in its corporate name, that it can also appropriate the 
 water necessary for the operations to be carried on upon the 
 lands. 
 
 It has been held that an alien may hold a ditch and water- 
 right until he has forfeited the same by oflSce found; and in 
 the absence of such forfeiture may convey a good title. Upon 
 this subject the Supreme Court of Montana, in the case of 
 Quigsley vs. Birdseye,^ said: " In the chain of title of plain- 
 tiff to the ditch and water-right which he claims (the China 
 
 1 North Noonday Min. Co. vs. valid location of a mining claim, 
 Orient M. Co., 6 vSawy. 299; i Fed. provided the members thereof 
 Rep. "jav' ^'■^ citizens of the United States 
 
 2 130 U. S» Rep. 630. and really qualified to make a 
 
 3 Thomas vs. Chisholm, 13 Colo. location. 
 
 105, where the vSupreme Court of Rev. vStat. U.S. Sec. 2321; Lee 
 
 Colorado held that a corporation Doon vs. Tesh, 68 Cal. 43. 
 
 organized under the laws of the -iii Mont. 439; 28 Pac. Rep. 741, 
 
 United States or of any State or 743. 
 Territory thereof, may make- a
 
 240 APPROPRIATION OF WATER. [§ 155, 156 
 
 Ditch), appear the names of some alleged Chinamen as grantees 
 from the older owners of the ditch, and- as grantors to the 
 plaintiff. Defendants claim that, under the doctrine of Tib- 
 bitts vs. Ah Tong, 4 Mont. 536, 2 Pac. Rep. 759, and Wulf 
 vs. Manuel, 9 Mont. 279, 23 Pac. Rep. 723, Chinamen can not 
 take real estate, and therefore, that the grant of this water- 
 right and ditch to the Chinamen was an abandonment by the 
 original owners, and hence plaintiff took no title from the 
 Chinamen. In those cases the real estate in question was the 
 mining claims upon the public domain of the United States. 
 
 * * * We said in Wulf vs. Manuel, page 285, 9 Mont., 
 ' No other persons ma}' apply to purchase (such mineral lands) 
 from the United States. The mineral lands of the Govern- 
 ment are not open to exploration, occupation, or purchase by 
 aliens. An alien may not take or hold real estate of this class. 
 
 * * * Let it be conceded, in the case at bar, that the 
 Chinamen who were a link in the chain of plaintiff's title 
 were aliens. Let it be conceded that the ditch and water- 
 right were real estate. It was not real estate of such nature 
 as are possessory rights to mining claims upon the public 
 domains of the United States. * * * We have simply this 
 proposition: The chain of title is A to B to C to D. D is in 
 court with his title attacked because C was an alien. The 
 real estate is not a possessory right to a mining claim. All 
 that is to be considered is therefore, whether an alien may 
 take real estate and hold the same until oflS.ce found, against 
 collateral attacks by third persons, other than the sovereign, 
 and whether such alien in the absence of forfeiture, by office 
 found, may convey title to his grantee. Of this there is no 
 doubt. At the risk of affectation of learning, we subjoin a 
 few of the leading cases. "^ 
 
 § 156. Title to tlie Soil Unnecessary. — The common law 
 riparian rights vest in the proprietor, by virtue of his actual 
 ownership of land bordering upon a stream or lake, as an in- 
 
 1 Citing Cross vs. De Valle, i Craig vs. Radford, 3. Wheat. 594; 
 
 Wall. 8; Osterman vs. Baldvpin, 6 Mooers vs. White, 6 Johns. Ch. 
 
 Wall. 121; Fairfax's Devisee vs. 360; i Washb. R. P. 79, and cases 
 
 Hunter's Lessee, 7 Cranch 619; cited. 
 Phillips vs. Moore, 100 U. S. 208;
 
 § 156]. APPROPRIATION OF WATER. 2-41 
 
 cident to the soil owned by him. In the discussion of the 
 present subject it must be borne in mind that the ownership 
 of water-rights in the Pacific States does not depend upon 
 a legal title, or in fact anj' title to lands upon the stream 
 owned b)^ the appropriator, but is simply a possessory right 
 acquired b}' an appropriation and diversion of the waters of 
 the stream, and consummated by its application to some bene- 
 ficial use or purpose prior to its appropriation, diversion and 
 use b}' anyone else. This title, prior to any Congressional 
 enactment upon the subject, was held to be good as against 
 all the world except the Government or its grantees; and, 
 since the Act of Congress of July 26th, 1866, it is held to be 
 good as against the Government and its grantees as to all 
 rights of possession of waters acquired prior and subsequent 
 to the passage of that Act that were themselves prior to rights 
 acquired b}" grantees of land bordering upon the stream.^ And 
 this Act of 1866 and the one of 1870, which is declaratory and 
 amendatory to it, have had the effect to preserve this priority 
 to the appropriators of waters as against those who have re- 
 ceived patents to lands.- The same right in general holds 
 
 iHill vs. Newman, 5 Cal. 445; for other purposes," and the Act 
 
 Broder vs. Water Co., loi U. S. amendatory thereof, approved 
 
 276; 50 Cal. 621; Basey vs. Galla- July 9th, 1870, and the "Act to 
 
 gher, 20 Wall 670; Barnes vs. promote the development of the 
 
 Sabron, 10 Nev. 217. See discus- mineral resources of the United 
 
 sion, chapter VII, Sections 191, States," approved May loth, 1872, 
 
 207, as to rights acquired against must be considered and construed 
 
 the Government. together; and said Acts merely 
 
 ■^Union Mill Co. vs. Ferris, 2 confirm to the owners of mining 
 
 Sawyer 176, 185; Robert vs. Ford, claims and ditches and water 
 
 6 Nev. 77; Shoemaker vs. Hatch, rights under public lands of the 
 
 13 Nev. 261; Rivers vs. Burbank, United States the same rights 
 
 13 Nev. 398; Jones vs. Adams, 19 which were accorded to them by 
 
 Nev. 78; Hobertvs. Wicks, isNev. the local customs, laws and de- 
 
 418; Broder vs. Natoma Water Co. cision of the Courts, prior to the 
 
 50 Cal. 621; loi U. S. 274; Titcomb passage of the said Acts, 
 
 vs. Kirk, 51 Cal. 288, where the Cave vs. Crafts, 59 Cal. 135; Os- 
 
 Court held that the provisions of good vs. El Dorado Water Co., 56 
 
 the Acts of Congress, approved Cal. 571; Hinies vs. Johnson, 61 
 
 July 26th, 1866, "granting the Cal. 259; Coffin vs. Left Hand 
 
 right of way td ditch and canal Ditch Co., 6 Colo. 443; De Neco- 
 
 owners over the public lands, and chca vs. Curtis, 80 Cal. 397; Soutli
 
 242 APPROPRIATION OF WATER. [§ 156, 157 
 
 good as to the water-rights upon land owned by the various 
 States formed out of the arid region, as those States have pro- 
 visions either in their Constitutions or statutes allowing water- 
 rights to be held by prior appropriation and beneficial use. 
 This subject will, however, be more fully* discussed in a sub- 
 sequent part.^ Nor is it necessary that the appro priator in 
 order to be entitled to the use of the water, as at common law, 
 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. A valid appropriation may 
 be made for the irrigation of lands, or for an)- other beneficial 
 use, not situated upon or near the stream, and the very object 
 of his appropriation may be to conduct the water from the 
 stream through a ditch or canal, across the interv^ening public 
 lands, to irrigate a tract of land which he possesses, or to work 
 a mining claim or a mill; or even to sell and dispose of the 
 water thus conducted through the canal, to other parties, who 
 use it for other purposes on their own claims or tracts of lands. ^ 
 
 § 157. Notice of Intent to Appropriate. — Having shown 
 above that there must be an actual bona fide intention, in order 
 to appropriate the water of a stream, to apply the same to some 
 beneficial use or purpose,^ one of the first steps necessary 
 for the appropriator to take, is to give notice of that intent. 
 There is no particular form of notice prescribed, but any 
 
 Yuba vs. Rosa, 8o Cal. 333; Ged- borhood of the stream. Coffin vs. 
 
 dis vs. Parish, i Wash. 587; 21 Left Hand Ditch Co., 6 Colo. 444. 
 
 Pac. Rep. 314; Megerle vs. Ashe, SMaeris vs. Bickuell, 7 Cal. 261; 
 
 33 Cal. 74; Smith vs. Athern, 34 Davis vs Gale, 32 Cal. 26; Section 
 
 Cal. 507; Gould on waters, Sec. 150, and authorities cited. To 
 
 240; and cases cited. make a valid appropriation of 
 
 ISee Part II, Statutes of States water there must be some actual 
 
 governing appropriation. beneficial purpose existing at the 
 
 SPomero}' on Rip. Rights, Sec. time, or contemplated in the fu- 
 
 46; Hammond vs. Rose, 11 Colo. ture, as the object for which the 
 
 524, where it was held that a valid water is utilized. The needs of the 
 
 appropriation of the waters of a purpose for which the appropria- 
 
 stream, to the exclusion of a ripa- tion is made, is the limit to the 
 
 rian owner, may be made for the amount of water which may be 
 
 purpose of irrigation, though the ,taken. Simmons vs. Winters, 21 
 
 lands to be irrigated are not loca- Ore. 35; 27 Pac. Rep. 7. 
 ted on the banks or in the neigh-
 
 § 157J. 
 
 APPROPRIATION OF WATER, 
 
 243 
 
 form which gives the name of the appropriator, a definite 
 description of the locality, the stream from which the 
 appropriation is to be made in reference to some permanent 
 object, the amount of water to be appropriated, and the 
 purpose of the same, has been deemed sufficient. In general, 
 appropriators of waters have followed the forms used to locate 
 and hold mineral claims. All that is necessary is that the 
 terms of the notice shall be sufficient to put a reasonabh' pru- 
 dent man upon enquiry;^ but such notices are to be liberally 
 construed.^ The usual mode of giving the notice, at an early 
 period, and before anj' statutory' enactments had taken effect, 
 relative to the same, was by posting written or printed notices 
 
 1 Kimball vs. Gearhart, 12 Cal. 
 27, where it was held that where 
 parties go to issue in actions for 
 the diversion of water, upon gene- 
 ral averments and denials of title, 
 any thing that legally supports or 
 attacks a title is admissible in evi- 
 dence. Yale on Mining Claims, 
 78. See Hess vs. Winder, 30 Cal. 
 349; McKinney vs. Smith, 21 Cal. 
 374, where in an action involv- 
 ing a right to and extent 
 of a water privilege claimed 
 by plaintiffs under an alleged ap- 
 propriation by a number of co- 
 partners, defendants to limit the 
 extent of the appropriation 
 offered in evidence a paper pur- 
 porting to be a copy of the origi- 
 nal locating notice to the co-part- 
 ners, and without direct proof of 
 its execution showed that it was 
 prepared with the knowledge of 
 some of the partners, and was 
 seen as a posted notice by a por- 
 tion of them at the point of diver- 
 sion, and about the time the work 
 was commenced, and that its posi- 
 tion was such that it must prob- 
 ably have been seen by all; held 
 that upon this proof the pa])er was 
 admissible as a part of the res 
 
 gestae. North Noonday Min. Co. 
 vs. Orient Min. Co., 6 Sawyer, 299- 
 503. Under the recent statutes 
 enacted by the various States of 
 the arid region, provisions are 
 made for the form of and for the 
 recording of notices. See Part II, 
 Statutory enactments. 
 
 2 In Osgood vs. El Dorado W. 
 Co., 56 Cal. 571, it was held that 
 a notice as follows was sufficient: 
 "In conformit)' with an Act of 
 Congress, entitled an Act granting 
 a right of way to ditch and canal 
 owners over the public lauds, and 
 for other purposes, approved July 
 1866, the undersigned truly claims, 
 and are by priority of possession 
 entitled to the use of the waters 
 of this stream for mining, manu- 
 facturing, agricultural and other 
 purposes, and intend to dam said 
 stream, and carry the same, or a 
 portion thereof, in a flume, ditch 
 or canal or by natural channels, 
 wherever found suitable, to cer- 
 tain mining and agricultural dis- 
 tricts; and that the construction 
 of said flume or ditch will not 
 injure any settler on the pul)lic 
 domain. J. Kirk, 
 
 F. A. J011N.SON."
 
 244 APPROPRIATION OF WATER. [§ 157, 158 
 
 on or near tlie margin of the stream or lake at the point 
 where the diversion was to be made; and also, perhaps, post- 
 ing similar notices along the projected line of the canal, at 
 various points,^ I^ater it became customary not only to post 
 the notices as above, but also to file and record the same, 
 either in the office of the county recorder of the county, or 
 of the recorder of the mining district, in the district in which 
 the appropriation was to be made. And still at a later period 
 especially in those States which have passed statutory enact- 
 ments relative to this subject, it became necessary to file and 
 record the notice in the place provided by law, in order to 
 hold the appropriation.^ And at present it seems to be the 
 better practice, and in fact is required by statute, in nearly 
 all of the western States and Territories, to both post the 
 notices near the stream, and along the line of the projected 
 ditch or canal, and record the same in some official records, 
 which are now designated by laws of the various States and 
 Territories.'^ 
 
 § 158. Same. — Continued. — The notice of intention to 
 appropriate, if the law has been fully complied with, is 
 evidence of possession, but of itself is not sufficient. It is 
 only when taken with other acts, that it amounts to sufficient 
 evidence. It forms one of a series of acts, which taken 
 together makes the right perfect.'* And on the other hand the 
 
 1 Osgood vs. El Dorado W. Co. ,56 5 Nev. 44; Columbia M. Co., vs. 
 Cal. 571. Holter, i Mont. 296. 
 
 2 See Rev. Stat, of Arizona, 1889, 3 See Part Second for Section of 
 Sec. '917; California Civil Code, Statutes of various States relative 
 Sec. 1415; Kimball vs. Gearhart, to notice. 
 
 12 Cal. 27; Osgood vs. El Dorado ^Congervs. Weaver, 6 Cal. 548; 
 W. Co., 56 Cal. 571, 575. Kimball vs. Gearhart, 13 Cal. 27; 
 Notice alone of an intention to Thompson vs. Lee, 8 Cal. 275; 
 divert the water of a stream, for Columbia M. Co. vs. Holter, i 
 a specified purpose, will not, of Mont. 296; Robinson vs. Imperial 
 itself, constitute an appropriation, vS. M. Co., 5 Nev. 44, where the 
 but must be followed up by the circumstances were that certain 
 commencement and completion of parties. Black and Eastman, in 
 the works for the diversion there- December, 1859, posted a notice 
 of. Thompson vs. Lee, 8 Cal. 275; on a tree, on the bank of the Car- 
 Robinson vs. Imperial S. M. Co., son River, of the location of a
 
 § 158]. APPROPRIATION OF WATER. 245 
 
 mere act of commencing 'or digging a ditch, even with the 
 intent to appropriate the water of a stream and apply the 
 same to some beneficial use, is not sufficient of itself, without 
 some notice or publication of the intent.^ But this right to 
 the use of water being simply a possessory one by the appro- 
 priator, the giving of public notice of his intent to apply the 
 water to some beneficial use, the surveying the ground, setting 
 stakes along the line of the projected canal, and actually 
 commencing and diligently pursuing the work, to its com- 
 pletion, and finally using the water for some beneficial use or 
 purpose, is as much possession as the nature of the subject 
 will admit, and forms a series of acts of ownership that must 
 be conclusive of his right. ^ Thus under this rule, the giving 
 of notice is merely one of a series of acts which gives posses- 
 sion, but which constitutes onl)^ a part of the evidence of the 
 conclusive right of ownership. Indeed, from the very nature 
 and character of these water claims, it is one of the most 
 important acts of the appropriator, and tends more to prevent 
 imposition upon the public than any of his other acts. The 
 appropriator might make a survey, set stakes along the line 
 thereof, and immediate!}^ commence work thereon, and con- 
 water right commencing at that other words, after the indication 
 point, and of a right of way for a by some palpable and uneqnivocal 
 ditch of a certain capacity to a outward sign of the intent to ap- 
 rocky bend of the river below, propriate. The title to the water 
 and within the next six months does not arise as we have inti- 
 did some fifteen or twenty days mated before, from the manifes- 
 work on the ditch, but not sufR- tation of a purpose to take, but 
 cient to make it of any practical from the effectual prosecution of 
 use, held, not sufl&cient acts on that purpose. This prosecution, 
 the part of Black and Eastman, therefore, is a necessary element 
 to give them actual possession of of a title, and the negation of this, 
 the land traversed by the ditch, or the abandonment of the purpose, 
 to prevent the subsequent appro- is not so much matter in avoid- 
 priation of them by another party. ance of a title, as it is matter show- 
 Un Kiml)all vs. Gearhart, 12 ing that no title was ever ob- 
 Cal. 27; the Court said: "Thus is tained " .See also Robinson vs. 
 put in issue the very question of Imperial vS. IM. Co., 5 Nev. 44. 
 title, and this involves, necessarily, 2 Conger vs. Weaver, 6 Cal. 548* 
 
 the due prosecution of the work Thompson vs. Lee, 8 Cal. 276. 
 after the appropriation, or, in
 
 246 APPROPRIATION OF WATER. [§ 158, 159 
 
 tinue the same; and yet none of these acts without notice, 
 unless far progressed, would convey an idea to other persons 
 desiring to divert and appropriate the water of a particular 
 stream, that he intended to construct a trail, road, or ditch; but 
 after the notice of the intention to appropriate the water has 
 once been given, in order to hold the right, thus only partially 
 acquired, the works by which the appropriation is to be effected 
 must be actually commenced, and must then be prosecuted 
 with all reasonable diligence, until the same are completed, and 
 the water diverted from its natural stream into the ditch , and 
 conducted to the place where it is to be used, and then 
 actually applied to some beneficial use or purpose.^ 
 
 § 159. Physical Acts Necessary to Constitute an Appro- 
 priation. — An appropriation of waters can not be construc- 
 tive, but must be actual.^ 
 
 It follows, therefore, that a notice of intention to appro- 
 priate the water of a specified stream is not of itself sufficient 
 to constitute an appropriation thereof, although in connection 
 with other acts, it may be sufficient.^ As has been shown 
 
 iSee Post Section 167, and cases because it was not the intention 
 
 cited. to possess, but the actual posses- 
 
 2 See Kell)' vs. Natoma Water sion which gives the right." 
 
 Co., 6 Cal. 105, 108, in which Mr. In Conger vs. Weaver, 6 Cal. 
 
 Justice Heydenfeldt said: " Pos- 548, it was held that the enclosure 
 
 session or actual appropriation, of the ground used in digging a 
 
 must be the test of priority in all canal, not being necessary for the 
 
 claims to the use of water, when- work, would give its proprietor no 
 
 ever such claims are not dependent higher rights; nor is it necessary, 
 
 upon the ownership of the land as notice, to those who have 
 
 through which the water flows. received actual notice of the 
 
 Such appropriation can not be intended line of the canal, 
 
 constructive, because there would See also Tuolumne W. Co. vs. 
 
 be no rule or limit to control it, Chapman, 8 Cal. 392; Coryell vs. 
 
 resting, as it must, only in inten- Cain, 16 Cal. 567. 
 
 lion. The principal as laid down 3 Thompson vs. Lee, 8 Cal. 275; 
 
 in Eddy vs. Simpson, 3 Cal. 249, Weaver vs. Eureka Lake Co., 15 
 
 must govern this case. The design Cal. 271; Kimball vs. Gearhart, 12 
 
 of the defendants, two years be- Cal. 27; Jones vs. Jackson, 9 Cal. 
 
 fore, to appropriate Alder Creek, 237; Robinson vs. Imperial S. M. 
 
 as a connecting link of their enter- Co., 5 Nev. 44; Columbia M. Co. 
 
 prise could not give them exclu- vs. Holter , i Mont. 296. 
 sive rights until it was executed
 
 § 159. 160]. APPROPRIATION OF WATER. 247 
 
 there must be, first the bona fide intent to appropriate the 
 waters of a stream and appl}^ the same to some beneficial use 
 or purpose. Then, in connection with this intent, there must 
 follow the phj'sical acts necessary to constitute the actual 
 appropriation of the water which include the notice to the 
 world of the intent, the survej^s and commencement of the 
 digging of the ditches, and building of flumes, or other works 
 necessary; and their completion within a reasonable time 
 after the notice; the actual diversion of the water appropri- 
 ated from the natural stream into the appropriator's ditch; 
 and finally the actual application of all of the water appro- 
 priated and so diverted to some beneficial use or purpose. 
 No one of these acts can stand alone, but all are absolutely 
 essential to the successful and valid completion of the appro- 
 priation. But just what physical acts are necessary for its 
 successful termination, depends upon the condition of the 
 stream, the nature of the climate and soil, the length of the 
 canal, the diflSculty of obtaining labor, tools or material, and 
 the many other circumstances connected with each particular 
 case.^ 
 
 "In appropriating unclaimed water on the public lands, 
 only such acts are necessary, and such indications and evi- 
 dences of appropriation 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 — surveys, notices, 
 stakes and blazing of trees, followed by work and actual 
 labor without abandonment, will in every case, where the 
 work is completed, give title to the water over subsequent 
 claimants." - 
 
 § 1(>0. Heasonable Diligence Must Be Used in Completion 
 of Works. — The law allows a reasonable time for completing 
 
 1 Kimball vs. (Vearhart, I2 Cal. Nev. 44; Colinnbia M. Co. vs. 
 
 27; Osgood vs. Kl Dorado Water Ilolter, i Mont. 296; Thomas vs. 
 
 Co., 56 Cal. 571; Thompson vs. (luiraud, 6 Colo. 530; Maeris vs. 
 
 Lee, 8 Cal. 275; Kelly vs. Natoma Bicknell, 7 Cal. 261; King vs. Kd- 
 
 Water Co., 6 Cal. 107; Weaver vs. wards, i Mont. 235; Wooltnan vs. 
 
 Eureka Lake Co., 15 Cal. 271; darringer, i Mont. 535; Atchison 
 
 Davis vs. Gale, 32 Cal. 26; Roljin- vs. Peterson, i IMont. 561. 
 
 son vs. Imperial S. M. Co., 5 SKimball vs. Ciearhart, 12 Cal. 28.
 
 248 APPROPRIATION OF WATER. [§ 160 
 
 the appropriation, and no unusual or extraordinary exertions 
 are necessary in the prosecution of the work; but after the 
 notice has been given the ditch and other works must be 
 begun in good faith, the same must be carried forward to 
 its completion with all due diligence.^ 
 
 The same principle also applies to cases where parties have 
 filed location notices for reservoir sites. The notices must be 
 followed up with reasonable diligence by proceedings to con- 
 demn the property for that purpose (if the site is located upon 
 private lands) and the construction of the reservoir. A loca- 
 tion notice without subsequent acts to accomplish the object 
 named in the notice will not hold the site. 
 
 As to whether the work has been begun within a reason- 
 able time after the notice was given, and prosecuted with 
 reasonable diligence, are questions of fact for the jury 
 to determine, from all the particulars connected with each 
 case. 2 And on this question of due and reasonable diligence, 
 in the prosecution of the construction of the works, the 
 jury may take into consideration all the circumstances 
 surrounding the parties connected with each particular case, 
 at the date of the appropriation, such as the climate 
 of the countr)^ as to whether the work can be prosecuted con- 
 tinuously all the year round or only for a few months of the 
 year, the phj^sical condition of the country through which the 
 canal is to pass, as to whether the same is level or rough, and 
 whether the soil is hard or easy to work and the like, and 
 the difficulty of obtaining labor, tools or material; also the ex- 
 tent and magnitude of the works themselves.'' In the case of 
 
 lOsgoodvs. El Dorado W. Co.. reka L. Co., 15 Cal. 271; Kimball 
 
 56 Cal. 571; Kelly vs. Natoma W. vs. Gearhart, 12 Cal. 27; Elliott vs. 
 
 Co., 6 Cal. 105; Maeris vs. Bick- Wliitmore, (Utah); 24 Pac. Rep. 
 
 iiell, 7 Cal. 261; King vs. Edwards, 672. 
 
 I Mont. 235; Woolman vs. Gar- spomeroy Rip. Rights, Sec. 52; 
 ringer, i Mont. 535; Atchison vs. Gould on Waters, Sec. 236; Weaver 
 Peterson, i Mont. 561; Sieber vs. vs. Eureka Lake Co., 15 Cal. 271; 
 Frink, 7 Colo. 148; Ophir S. M. Parke vs. Killham, 8 Cal. 77; Luck- 
 Co. vs. Carpenter, 4 Nev. 534; Park hart vs. Ogden, 30 Cal. 547; Kim- 
 vs. Kilham, 8 Cal. 77; Keeney vs. ball vs. Gearhart, 12 Cal. 30; White 
 Carillo, 2 N. M. 480. vs. Todd's Valley Water Co., 8 
 
 2 Osgood vs. El Dorado W. Co., Cal. 444. 
 56 Cal. 571, 581; Weaver vs. Eu-
 
 § 160J. APPROPRIATION OF WATER. 12-11) 
 
 the Ophir Mining Co. vs. Carpenter, ^ Lewis, C. J., in deliver- 
 ing the opinion of the Court, says: "When any work is nec- 
 essary to be done to complete the appropriation the law gives 
 the claimant a reasonable time within which to do it. * * * 
 Diligence is defined to be 'the steady application to business 
 of any kind, constant effort to accomplish any undertaking.' 
 The law does not require any unusual or extraordinary efforts, 
 but that which is usual, ordinary and reasonable. The dili- 
 gence required in cases of this kind is that constancy or steadi- 
 ness of purpose or labor, which is usual with men engaged in 
 like enterprises, and who desire a speedy accomplishment of 
 their designs. Such assiduity in the prosecution of the en- 
 terprise as wall manifest 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 possible expedition, with no delay, 
 except such as may be incident to the work itself." And in 
 the same opinion it was also held that neither the illness of 
 the appropriator, nor his want of pecuniary means to prosecute 
 the work, are such circumstances as wall excuse great delay 
 in the prosecution of the work and completion of the same 
 from the fact that they are both matters incident to the person, 
 and not to the enterprise. And upon this point the Court 
 said: " It would be a most dangerous doctrine to hold that 
 ill health or pecuniary inability of a claimant of a water privi- 
 lege will dispense with the necessity of actual appropriation 
 within a reasonable time, or the diligence which is usually re- 
 quired in the prosecution of the work necessary for the pur- 
 pose. We find no recognition of such doctrine in the law. 
 Nor are we disposed to adopt it as the rule to govern cases of 
 this kind." And, in general, upon this last point it may be 
 said, that it is also a questionof fact for the jury as to whether 
 the party attempting to make an appropriation had or had not 
 the command of the pecuniary means requisite to-complete the 
 same within a reasonable time. And if the appropriators 
 projected the works and claimed the waters in dispute with 
 full knowledge of their pecuniary inability to complete the 
 same, within a reasonable time, tlien they cannot urge such 
 
 I4 Nev. 544, 546.
 
 250 APPROPRIATION OF WATER. [§ 160, 161 
 
 want of pecuniary means as an excuse for not prosecuting the 
 work with reasonable diligence, and completing it within a 
 reasonable tinie.^ 
 
 § 101. Same. — Coiitiimed. — If, after notice has been given 
 of the intent to appropriate the waters of a certain stream, a 
 ditch or canal is begun in good faith, and all due and reason- 
 able diligence exercised in the prosecution of the same to its 
 completion, the enjo3'ment of the water does not of course 
 commence until the works are completed; but, as against 
 others subsequently attempting an appropriation, the right to 
 the use of the water dates back, by the doctrine of relation, 
 to the first step taken to appropriate the same. If, however, 
 on the other hand, the work be not prosecuted with all due 
 and reasonable diligence the right to the water does not so 
 relate back to the first step, but generally dates from the time 
 when the work is completed and the water applied to some 
 beneficial use or purpose, or in other words, when the appro- 
 priation is fully perfected. It therefore follows, that, if all 
 or a portion of the water of the stream has been, during 
 the course of the delay of the first appropriator, appropriated 
 by others prior to the completion of the first appropriator's 
 ditch or canal, where the work upon the same was not prose- 
 cuted with all due and reasonable diligence, the first appro- 
 priator has either lost all right to the water of the stream, or 
 he must take any water of the stream that may be left, sub- 
 ject to the rights acquired by others who have intervened 
 and who have strictly complied with all the conditions of the 
 law.'-^ But, although one may not have completed his work 
 for diverting or using the water and therefore has not com- 
 pleted his appropriation, yet he has a right to the use of so 
 much of the water of the stream as may be necessary to pre- 
 
 1 Kimball vs. Gearliart 12 Cal. 28. vs. Garringer, i Mont. 535; Atchi- 
 
 2 See subject of Abandonment son vs. Peterson, i Mont. 561; 
 Post Chapter VIII. Section 253- Sieber vs. Frink, 7 Colo. 148; 2 
 259; OphirS. M. Co. vs. Carpenter, Pac. Rep. 901; Irwine vs. Strait, 
 4 Nev. 535; Kelly vs. Natoma 18 Nev. 436; Keeney vs. Carillo, 
 Water Co., 6 Cal. 105; Maeris vs. 2 N. M. 480; Meggerle vs. Ashe, 
 Bicknell, 7 Cal. 261; King vs. 33 Cal. 74; Smith vs. Athern, 34 
 Edwards, i Mont. 235; Woohnan Cal. 507.
 
 § 161]. APPROPRIATION OF WATER. 251 
 
 vent his works from injury while in the process of construc- 
 tion.^ And where a party has taken all the necessary prelim- 
 inary steps for an appropriation of water for any beneficial 
 use or purpose, and has used due diligence in constructing 
 his ditch, which, by reason of obstructions in the same or 
 irregularities in the grade, at the time of his first turning in 
 the water, is not capable of diverting as much water as 
 its general size would indicate the law will grant the appro- 
 priator a reasonable time to adjust the grade and remove such 
 obstructions and to fill the ditch to its full capacity, pro- 
 vided that all the water so diverted is applied to some bene- 
 ficial use or purpose. But, on the other hand, if he continues 
 to divert only the quantity of water originally diverted by 
 him long enough to indicate that he onl}^ intended to take 
 that amount, or failed for an unreasonable length of time to 
 remove the obstruction or adjust the grade, he will be lim- 
 ited to the amount originally diverted, and other intervening 
 appropriators will be entitled to the residue of the water flow- 
 ing in the natural stream.^ It has also been held that the 
 object in view at the time when the water was first diverted 
 is to be considered in connection with the appropriation actu- 
 ally made, provided, of course, that the water has been 
 diverted with due and reasonable diligence, and that the ap- 
 propriator will be given a reasonable time, after conducting 
 the water to the point where it is needed, to apply it to the 
 use intended.^ 
 
 Under the later decisions relative to the capacity of the ditch 
 being the limit of the extent of the appropriator's rights in and 
 to the waters of a stream, it is held to be against the general 
 policy of the entire modern system of the doctrine of appropri- 
 ation that the greatest good shall accrue to the greatest num- 
 ber. For if this was the law upon the subject a person might 
 lay claim to the water of whole rivers for the ostensible pur- 
 pose of irrigating immense tracts of lands, which with the 
 
 1 Weaver vs. Conger, lo Cal 233. Dougherty vs. Haggin, 56 Cal. 522. 
 
 2 White vs. Todd's Valley Water JfConant vs. Jones, (Idaho) 32 
 Co. 8 Cal. 443; liutte Can. & I). Pac. Rep. 250; Gould on Waters, 
 Co. vs. Vaughn, 11 Cal. 153; N. C. Sec. 236; Barnes vs. Sabron, 10 
 & vS. C. Co. vs. Kidd, 37 Cal. 314; Nev. 217.
 
 252 APPROPRIATION OF WATER. [§ 161, 162 
 
 Utmost diligence it would take years to accomplish; and 
 although others might intervene an attempt to appro- 
 priate the water of a stream they could only lay claim to it 
 for a temporary period of time, and until the w^orks of the first 
 appropriator were eventuallj- completed, and they w-ould then 
 be deprived of their appropriation. Thus would the way 
 for speculation, and monopolj' be opened, and the main object 
 of the law defeated. The true test of the extent of an appro- 
 priator's rights in and to the waters of a stream is the 
 actual amount that is applied without waste within a reason- 
 able time to some beneficial use or purpose, after he has 
 given notice of his intention to appropriate the water. ^ 
 
 § 102. There Must l)e an Actual Diversion of the Water.— 
 
 As we have seen, the appropriation entire cannot be construc- 
 tive;- so, also, no step which it is necessary to take to make 
 the appropriation complete can be constructive. As the w'hole 
 theory of appropriation for beneficial uses is based merely 
 upon a prior possessory right to the water entirely- separate 
 from the property in the land over which it runs,^ and no 
 possession or exclusive propertj' can be acquired while it is 
 still flowing and remaining in its natural channel or stream,^ 
 it follows, therefore, that in order to obtain possession of the 
 water attempted to be appropriated, it is an indispensible 
 requisite that there must be an actual diversion of the water, 
 from its natural channel, into the appropriator's ditch, canal, 
 reser\^oir, or other structure.^ So, where the common law 
 forbids a diversion of the water, from its natural channel, 
 under almost any circumstances whatsoever, the law of the 
 Pacific States, which as we have seen, originated entirely with 
 the customs of the miners, makes it one of the most important 
 
 1 See Simnious vs. Winters, 21 -i Parks Canal & M. Co. vs. Koyt, 
 Ore. 35; 27 Pac. Rep. 7; Conant 57 Cal. 44; Kidd vs. Laird, 15 Cal. 
 vs. Jones, 32 Pac. Rep. 250. 162. 
 
 2 Gould on Waters, Sec. 235, 5 Parks Canal & M. Co. vs. Hoyt, 
 Coryell vs. Cain, 16 Cal. 567; 57 Cal. 44; Kidd vs. Laird, 15 Cal. 
 Kelly vs. Natonia Water Co., 6 Cal. 162; Dalton vs. Bowker, 8 Nev. 190; 
 105. See also Ante-section, 159. Riverside Water Co. vs. Gage, 
 
 SCrandall vs. Woods, 8 Cal. 143. 89 Cal. 410; 26 Pac. Rep. 8S9.
 
 § 162, 163.] APPROPRIATION OF WATER. 25^ 
 
 steps for the completion of an appropriation, and an absolute 
 necessity, in order to acquire an exclusive property* in the 
 water. 
 
 §163. Same — Continued. — For the purpose of diversion, 
 however, flumes constructed at different parts of the lines, 
 cannot change the general character of the works, and in all 
 legal aspects are the same as a ditch or canal. ^ And a " dry 
 ravine or gulch may be used as a part of a ditch, with the 
 same effect as though the structure were wholh- artificial." ^ 
 
 In Keeney vs. Carillo,-^ where the appropriator built a ditch 
 upon the public lands, which conducted the water to a point 
 in a canyon where it disappeared under ground, coming to the 
 surface again at the mouth of the canyon, it was held by the 
 Supreme Court of New Mexico that the appropriator was 
 entitled to be protected against others subsequent to him, who 
 had dug ditches cutting off his supply. But upon the other 
 hand, if the appropriator returns the water which he has 
 diverted back into the natural channel of the stream, without 
 the intention of "recapturing" it, he will be held to have made 
 an abandonment of all further rights to the use of such 
 water. ^ Again, where water from an artificial ditch is turned 
 into a natural water-course and mingled with the natural 
 waters of a stream, whether the same is the stream from which 
 it was originally taken or not, for the purpose of conducting 
 it to another point lower down, to be there used by the 
 original appropriator, it is not therebj^ abandoned, but may 
 ])e taken out and used by the parties thus conducting it, pro- 
 vided that they do not, in so doing, diminish the quantity of 
 the natural waters of the stream by taking out more than 
 
 1 Ellison vs. Jackson Water Co., Butte Canal Co. vs. Vaughn, ii 
 
 12 Cal. 542. Cal. 143; Eddy vs. Simpson, 3 Cal. 
 
 SPomeroy Rip. Rij^lits Sec. 48: 249; Scliultz vs. Sweeny, 19 Nev. 
 
 Hoffman vs. Stone, 7 Cal. 46; Post 359; 11 Pac. Rep. 253; Dodge vs. 
 
 Chapter VIII, Sec. 246. See also Marden, 7 Oregon 456; Platte Water 
 
 statutory enactment upon sub- Co. vs. Northern Colo. Ir. Co. 12 
 
 ject in Part II. Colo. 525; McCauley vs. McKeig, 
 
 3 2 N. M. 480. 8 Mont. 389; Barkley vs. Tieleke, 
 
 4 Woolnian vs. Garringer.i IVIont. 2 Mont. 59. 
 535; Davis vs. Gale, 32 Cal. 26;
 
 254 APPROPRIATION OF WATER. [^ 163, 164 
 
 their share, to the injury of those who have previously appro- 
 priated such natural waters.^ 
 
 But the burden of proof devolves upon the party thus 
 mingling the water belonging to him with the waters of a 
 stream that have been appropriated by others. He must 
 show^ clearly to what portion he is entitled. He can only 
 claim and redivert such portion as it is established by deci- 
 sive proof that he has a prior right to the use of. The 
 enforcement of his right must leave the opposite party in the 
 use of the full quantitj^ to which he was originall}^ entitled, 
 and the party conducting the water in this method to a point 
 lower down the stream can not there ' ' recapture ' ' more water 
 than he is entitled to above, unless it is done subject to the 
 rights of intervening appropriators.'-^ 
 
 § 164. Tliere must be an Actual Use of the Water Ajipro- 
 priated. — The final element necessary to complete the appro- 
 priation is an application of all of the water attempted to be 
 appropriated to some beneficial use or purpose. Not only 
 must there be an hitent to apply the water to some such pur- 
 pose, but as the consummation of that intention it must be 
 achially applied within a reasonable time; and as to whether 
 this has been done is a question of fact for the jury to 
 determine from all the circumstances of the case.^ On the 
 other hand the notice of appropriation may have been properly 
 given according to law, the works for conducting the water 
 constructed within a reasonable time, the water diverted from 
 its natural channel, and yet if the water is not actually applied 
 
 1 Butte C. &D. Co. vs. Vaughn, II 7 Cal. 261; Combs vs. Ag. Ditch 
 
 Col. 143; Richardson vs. Kier, 37 Co., 17 Colo. 146; 28 Pac. Rep. 
 
 Cal. 263. 966. Priority of appropriation 
 
 2 Ibid. Hoffman vs. Stone, 7 Cal. shall determine the right to water 
 46; Butte Canal Co. vs. Vaughn, it of a natural stream, but there is 
 Cal. 143; Davis vs. Gale, 32 Cal. no appropriation until it is applied 
 26; Kllis vs. Tone, 58 Cal. 2S9; to some beneficial use. Farmers' 
 Schultz vs. Sweeny, 19 Nev. 359; High Line Canal Co. vs. South- 
 Burnett vs. Whiteside, 15 Cal. 35; worth, 13 Colo, iii; 4!,. R. A. 767; 
 Wilcox vs. Hausch, 69 Cal. 461; 21 Pac. Rep. 1028; Peregoy vs. 
 See Chapter VIII, Section 246. McKissick, 79 Cal. 575; 21 Pac. 
 
 SSieber vs. Frink, 7 Colo. 148; 2 Rep. 967. 
 Pac. Rep. 901; Maeris vs. Bicknell,
 
 § 164.] APPROPRIATION OF WATER. 255 
 
 to a beneficial purpose or use. witliout delay, no legal 
 appropriation has been made.^ The true test as to whether 
 the appropriation is a valid one is the application of the water 
 to some beneficial use or purpose. And an}' delay for an 
 unreasonable time in its application, or a failure for a time to 
 use the water, if it has once been applied, is competent evi- 
 dence on the question of abandonment; and if such non-use 
 be continued for an unreasonable period, it may fairly create 
 a presumption of intention to abandon.^ But under the 
 decisions the appropriators of water for the purposes of irri- 
 gation will be given a reasonable time after conducting the 
 water to a point where it is to be used to apply it to the use 
 intended.'^ But as has been stated, this use to which the 
 water may be applied is any use or purpose for which water 
 is needed to supply the natural and artificial wants of man, 
 provided that it be a beneficial one.^ And also one may intend 
 to apply the water to a certain purpose, when he takes the first 
 steps for an appropriation, and immediately upon the diversion 
 of the same apply it to some entirely different purpose, with- 
 out prejudicing the rights acquired by him, provided he con- 
 tinues the application to some beneficial purpose. Also, when 
 the water has been lawfully appropriated, and applied to some 
 one of the beneficial uses, the priority once thereby acquired 
 is not lost, if the appropriator changes the use for which it 
 was first appropriated and applied, provided there is no un- 
 reasonable delay in the change.'^ A beneficial use, without 
 regard to the nature thereof, will sustain the right by appro- 
 priation, but the nature of the use may be important as denot- 
 ing the extent of the appropriation and the amount of water 
 that can be held under it." 
 
 llbid. Maeris vs. P,icknell, 7 ^ See Ante Section 150, and cases 
 
 Cal. 261; McKinney vs. Smith, 21 cited. 
 
 Cal. 374; Thomas vs. Guiraud, 6 5 Ante vSection 154; also see vSecs. 
 
 Colo. 540. 223-237, and cases cited. Maeris 
 
 2 Davis vs. Gale, 32 Cal. 26; vs. Bicknell, 7 Cal. 261, Hill vs. 
 
 Sieber; vs. Frink, 7 Colo. 14B. Smith, 27 Cal. 476; Thomas vs. 
 
 SConant vs. Jones (Id.) 32 Pac. Guirard, 6 Colo. 530. 
 Rep. 250; Fort Morgan Land Co. o McDonald vs. Bear River W. 
 
 vs. South Platte Ditch Co., (Colo.) & M. Co., 13 Cal. 220. See also 
 30 Pac. Rep. 1032; Combs, vs. Ag. Chapter VIII. Sections 230-237. 
 D. Co. ,17 Colo. 146; 28 Pac. Rep. 966.
 
 256 APPROPRIATION OF WATER. [§ 165 
 
 § 165. All of the Water Appropriated Must be Used.— 
 
 In the earh' da3'S prior appropriation was esteemed to cover 
 all in sight, even to the entire amount of water flowing in a 
 natural stream, whether the same was actually used or not. 
 In order to irrigate his land or to work his mine the appro- 
 priator might claim the right to all of the water flowing in a 
 certain stream, although the same might have been many 
 times the amount that w^as actually needed for the purpose for 
 which he made the appropriation. The early irrigators, hav- 
 ing no knowledge, even in the slightest degree, of the proper 
 application of water for irrigating their crops; and there 
 being at that time nothing written upon the subject, and, as 
 there was a ver}' plentiful supply of water in the streams for 
 those who wished to use it, it followed as a matter of course 
 that the}' adopted ver}' wasteful methods in their lavish use of 
 the water. But little cultivation of the land was thought 
 necessary if the ground was kept saturated. As time went on, 
 however, more settlers of the agricultural class came into the 
 arid region and a great many miners also abandoned their 
 search for gold and turned their attention to agriculture. 
 Hence, it did not require any great length of time in order to 
 allow the settlers in many places to appropriate all the waters 
 in the streams under the wasteful methods used, and apportion 
 it among themselves. And with the then prevalent lavish use 
 of water the area of land put under actual cultivation was 
 comparatively small to what it might have been wdth the same 
 supply of water had ordinary care been taken in its distribu- 
 tion. And, as there was a continual demand for more water 
 as more land was taken up and cultivated, in the process of 
 time, owing to this demand, many old ideas upon the subject 
 of irrigation were exploded, and it was found that a given 
 amount of water could be made to go further and with far 
 better results than the early settlers had any idea of. In 
 many cases it was demonstrated by actual experiment that 
 five or six times as much land could be irrigated with a cer- 
 tain amount of water and with better results as far as amount 
 and quality of crops were concerned than had been thought 
 possible before.
 
 § 16(3, 167J. APPROPRIATIOX OF AVATER. 257 
 
 § l(iO. Same.— Coiitiiuied.— When these possibilities be- 
 came known, as above set forth, and the population had 
 greatly increased, there came a time when so manj^ wanted 
 water for irrigation and other purposes that some sys- 
 tematic plan was demanded, and had to be settled upon for 
 its distribution other than the wasteful methods, or rather the 
 lack of methods, that had hitherto prevailed. So the legis- 
 latures of many of the Pacific States and Territories, and the 
 Courts of all, soon put an end to these selfish and wasteful 
 methods, and the principle of " beneficial uses " was adopted. 
 Water is too precious an article in the arid region to be per- 
 mitted to run to waste, and the great weight of modern au- 
 thorities hold that where a person has diverted a certain por- 
 tion of the waters of a stream, and permits part of the water, 
 so diverted, to run to waste, or fails to use a certain portion of 
 the water for some beneficial use or purpose, he can only hold 
 that part of the water diverted which has been actually ap- 
 plied to some beneficial use; and his priority only extends to 
 the quantity so used. Also the authorities hold that there 
 was no appropriation as to the water not used, and which ran 
 to waste, but that the same might be subsequently appropri- 
 ated and held by other parties, provided they took all the 
 proper steps, and they themselves applied it to some beneficial 
 use or purpose. The final test in all cases being whether all 
 of the water diverted is actually applied to some useful or 
 beneficial purpose.^ 
 
 § 167. Wlien the Apinopiiation Is Complete.— The ap- 
 propriation becomes perfect only when the ditches or canals 
 are completed, the water diverted from its natural stream or 
 
 1 In Sieber vs. Frink, 7C0I0. 148; Gcial use upon the Brown land. 
 
 2 Pac. Rep. 904, the Court said: If this be the fact, plaintiffs are 
 
 "Of the quantity applied to irriga- 07ily entitled to priority for the 
 
 lion of the Brown ranch, we are quantity so used.''' 
 
 not satisfactorily advised. There See also Combs vs. Agricultural 
 
 is some proof that the water ran Ditch Co., 17 Colo. 146; 28 Pac. Rep. 
 
 to waste at the end of the ditch; 966, where it was held that an ex- 
 
 and it may be that in 1871, and cessive diversion of water cannot 
 
 during the succeeding four j'ears, be regarded as a diversion of it 
 
 but a part of the water diverted for a beneficial use. 
 was actually applied to a bene-
 
 258 APPROPRIATION OF WATER. [§ 167 
 
 channel, and actually used for beneficial purposes.^ Pomeroy 
 does not state the rule to be quite the same as above stated, 
 holding that the completion of the ditch, so that the actual 
 use of the water can be commenced, is sufficient to hold the 
 appropriation. 2 But we must remember that laws relative to 
 the subject of irrigation have been and even are now in a state 
 of transition, and the later authorities hold that before the ap- 
 propriation is complete the water must be actually used within 
 a reasonable time after the works are completed. Upon this 
 subject Chief Justice Hayt, of the Supreme Court of Colorado, 
 in the opinion in the case of Fort Morgan Land Company vs. 
 South Platte Ditch Company, says: "The Court holds that 
 they must not only take the water out of the stream, but must 
 prove the regular use of it for irrigation. From the first this 
 Court recognized and emphasized the idea that priority can 
 only be legall}^ acquired by the application of the water to 
 some beneficial use. Hence there must not only be a diver- 
 sion of the water from the natural stream, but the actual appli- 
 cation of it to the soil to constitute a constitutional appropria- 
 tion recognized for irrigation . "-^ The above opinion shows the 
 tendency of the Courts in modern times not to allow any 
 water to run to waste by means of pretended appropriations 
 where the same are not completed and the water has not been 
 actually used for some one of the beneficial purposes. And 
 water rights attempted to be held in this manner without 
 actual use are subject to appropriation by other parties on the 
 ground that no appropriation has been made."* While the ap- 
 propriator's dam and canal are in the process of construction, 
 but he is not yet ready to actually use the water for the purpose 
 intended, its use by other persons causes no injury to the first 
 
 1 Maeris vs. Bicknell, 7 Cal. 261; 2 Ponieroy on Riparian Rights, 
 
 Thomas vs. Guirand., 6 Colo. 530; Sec. 53. 
 
 Kelly vs. Natoma Water Co., 6 3 Colo.; 30 Pac. Rep. 1032; Farm- 
 
 Cal. 105; Fort Morgan Land Co. ers' High L. Canal vs. South- 
 
 vs. South Platte D. Co., (Colo.), 30 worth, 13 Colo, iii; 4L. R. A. 765; 
 
 Pac. Rep. 1032; Combs vs. Agri- 21 Pac. Rep. 1028. 
 
 ciil. D. Co., 17 Colo. 146; 28 Pac. 4 ibid. 
 Rep. 966; Conantvs. Jones, (Idaho) 
 32 Pac. Rep. 250.
 
 § 167, 168]. APPROPRIATION OF WATER. 259 
 
 appropriator and gives him no cause of action for relief, either 
 equitable or legal, from the fact that his works are not in a con- 
 dition to divert the water. ^ But the prior appropriator has the 
 right to use so much of the water as is necessary to preserve 
 his flume or works from injury- while in the process of con- 
 struction. ^ 
 
 § 168. Doctrine of Reljition. — As we have seen in the pre- 
 vious sections, an appropriation does not become final and 
 perfect until the works for conducting the water are completed, 
 and the water actuall)^ used for some beneficial use or purpose. 
 But when, however, the right to appropriate the water has 
 been once perfected, b}^ taking all the necessary steps for the 
 same, as above set forth, should anj- question of priority 
 between the first appropriator and other parties claiming 
 rights to the water of the same stream arise, the doctrine of 
 relation is applied to settle and determine the question of 
 priority. The rule of law is, as laid down by decisions, 
 that if the first appropriator had given notice in accordance 
 with law, of his intention to appropriate the water of a cer- 
 tain stream, and his works for diverting the same were begun 
 in good faith and carried forward and prosecuted with all due 
 
 1 Nevada, etc., vs. Kidd, 37 Cal. of a stream have been appropri- 
 
 282, vvf here the Court held: A Court ated is out of repair, and not in 
 
 of Equity will not restrain the condition to carry any water, an 
 
 diversion of water by injunction action will not lie, to abate as a 
 
 until the party complaining is in nuisance a reservoir constructed 
 
 a condition to use it. While the across the bed of the stream, above 
 
 dam and canal of the party claim- the head of the ditch, by which 
 
 ingthe water are in process of con- the water of the stream is collected 
 
 struction but are not yet in a con- and detained, and caused to over- 
 
 dition to receive the water the use flow unequally. 
 
 of the water by other parties is no Brown vs. Smith, 10 Cal. 508; 
 
 injury, and such use affords no Harvey vs. Chilton, 11 Cal. 114; 
 
 ground for relief legal or equi- Union Water Co. vs. Crary, 25 Cal. 
 
 table. 504. 
 
 And in Hear River Co. vs. Boles, 2 Weaver vs. Conger, 10 Cal. 233; 
 
 24 Cal. 395, it was held that : 6 Cal. 548. 
 While a ditch by which the waters
 
 260 APPROPRIATION OF WATER. [§ 168 
 
 and reasonable diligence to their completion, then the first 
 appropriator acquires an exclusive prior right to divert the 
 water as regards others subsequent to the date of notice, 
 which right dates back by relation to the time the first step 
 was taken, as the law allows a reasonable time for him to 
 complete his appropriation by diverting and using the water 
 for some beneficial use or purpose.^ This is true although the 
 water may have been actually diverted by other parties, sub- 
 sequent to the posting of the notices of the first, but prior to 
 the completion of the ditch. Upon this point the Supreme 
 Court of Montana said in Woolman vs. Garringer,'-^ " The 
 notices posted on the stream, of the appropriation of so much 
 water, for general mining purposes, and the immediate enter- 
 ing upon the continued prosecution of the construction of the 
 dam and ditch, and its extension or branches, were sufficient 
 to put the plaintiffs on their guard, and to apprise them of 
 the prior appropriation of the defendants and of their riparian 
 rights to the premises. And from these facts they were bound 
 to take and were charged with notice of the defendants prior 
 appropriation, and if the}' then proceeded, it was at their own 
 option and peril. Nor were the defendants required to take 
 notice of any subsequent appropriation by the plaintiffs." 
 
 The authorities seem to differ upon the point as to whether 
 the right relates back to the time of commencing the work 
 upon the ditch or canal, or still farther back to the posting of 
 the notices. As the notice is the initial step, and in these 
 later times an absolutely essential one, in an entire continuous 
 proceeding, there seems to be no good reason why the rela- 
 tion should not extend back to the time of giving the same. 
 
 ilbid. Earhardt vs. Boaro, 113 8 Cal. 77; Kimball vs. Gearbart, 
 
 U. S. 527; Kelly vs. Natoma 12 Cal. 27; Opbir Silver M. Co. vs. 
 
 Water Co., 6 Cal. 105; Maeris vs. Carpenter, 4 Nev. 534; Irwin vs. 
 
 Bicknell, 7 Cal. 261; King vs. Ed- Strait, 18 Nev. 436; 4 Pac. Rep. 
 
 wards, i Mont. 235; Woolman vs. 12 15, Pomeroy on Rip. Rights, 
 
 Garringer, i Mont. 35; Atchinson vSec. 54; Angell on Waters, Sec. 
 
 vs. Peterson, i Mont. 561; 20 Wall. 236. 
 507; Siebert vs. Friuk, 7 Colo. 148; 2 i Mont. 535. 
 
 2 Pac. Rep. 901; Parke vs. Killiam,
 
 §168, 169|. APPROPRIATION OF WATKR. 261 
 
 However, some of the early cases use the expression, that the 
 right relates back to the time of "commencing- the work." 
 But in our opinion, the giving of notices should be construed 
 as a part of the work, as otherwise, the right of another 
 claimant could intervene between the date of the first appro- 
 priator's notice, and the reasonable time allowed for the com- 
 mencement of the work upon the ditch, no matter how short 
 the interval. The majority of the States and Territories of the 
 arid region, have disposed of this uncertainty, by legislative 
 enactment, making the rights of an appropriator from 
 the posting and filing of the notice if the law has been com- 
 plied with in all other respects. ^ 
 
 § 169. Same— Continued.— If, however, there wa^ unreason- 
 able delay in commencing the work, and it was not prosecuted 
 to its completion with all due and reasonable diligence, the 
 right to use the water dates only from the time when the 
 appropriation was fully perfected and the diversion of the 
 water had actually begun and was being used for some useful 
 purpose; and it does not in this case relate back to the time 
 when the first step to secure it was taken.^ So, if the first 
 party giving notice is negligent in prosecuting the works 
 necessary for the diversion of the water, and he finds when 
 the same are finally completed that all the water of the 
 stream has been appropriated subsequently to the time of his 
 
 1 See Statutes of various States by means of which the appro- 
 upon subject of relation in Part priatioii is effected, provided the 
 Second. See sub. Relation, Chap- enterprise is prosecuted with rea- 
 ter VII. Sections 184, 189, 208-220. sonable diligence; and in review- 
 Contra, see Irwin vs. Strait, t8 ing the evidence, that a delay for 
 Nev. 436; 4 Pac. Rep. 1215, where one season, in not using the water 
 the Court in determining the ques- was not unreasonable. See also 
 lion of the time when the right to Simpson vs. Williams, 17 Nev. 432. 
 water by appropriation commen- 2 Ophir Mining Co. vs. Carpen- 
 ces, held, the law does not restrict ter, 4 Nev. 534; Irwin vs, Strait, 18 
 the appropriator to the date of his Nev. 436; Keeney vs. Carillo, 2 
 use of the water, but applying the N. M. 480; iMaggerle vs. Ashe, 33 
 doctrine of relation, fixes it as of Cal. 74; Smilli vs. Atlicrn, 34 Cal. 
 the time when he begins his dam, 507. 
 ditch, flume, or other appliance.
 
 262 APPROPRIATION OF WATER. [§ 169, 170 
 
 giving notice by parties who have strictly complied with the 
 law in all respects, he can blame no one but himself.^ This 
 subject is very fully discussed in the case of Ophir S. M. Co. 
 vs. Carpenter, 2 in which the Court said: " Where the right to 
 the use of running water is based upon appropriation, and not 
 upon an ownership in the soil, it is the generally recognized 
 rule here that priority of appropriation gives the superior 
 right. When any work is necessary to be done to complete 
 the appropriation, the law gives the claimant a reasonable 
 time within which to do it, and although the appropriation is 
 not deemed complete until the actual diversion or use of the 
 water, still if such work be prosecuted with reasonable dili- 
 gence, the right relates to the time when the first step was 
 taken to secure it. If, however, the work be not prosecuted 
 with diligence the right does not so relate, but generally dates 
 from the time when the work is completed or the appropria- 
 tion is fully perfected." ^ 
 
 §170. Modification of Above Rules by Local Law. — The 
 
 above rules laid down, as to how an appropriation may be 
 effected, are the general laws upon the subject relating to the 
 appropriation of waters flowing over the public lands of the 
 United States, for the purpose of applj'ing the same to some 
 beneficial use or purpose. These rules are varied somewhat 
 regarding the methods of acquiring water rights by the local 
 laws of the various States and Territories that are formed out 
 of the arid region. But we may safely say that in all these 
 States and Territories the same principle of priority is at the 
 very foundation of the appropriation. The appropriator who 
 is prior in time has the superior right. Also the principle 
 that the water diverted can only be held as a valid appropri- 
 ation by the application of the same to some beneficial use or 
 purpose, is now as firmly established in all the States and 
 Territories, as the principle of priority. The greatest modi- 
 fication of the rules, as set forth in this chapter, then, are the 
 
 llbid. 236 and note; see Post Chapter 
 
 24 Nev. 534. Section VII, 184. 
 
 3 See Gould on Waters, Section
 
 § 170, 171]. APPROPRIATION OF WATER. 263 
 
 local statutes of the various States and Territories prescribing 
 the specific steps that must be taken in order to acquire a 
 valid water-right within their respective jurisdictions. 
 
 These local laws, as will be seen in a subsequent portion of 
 this work, vary in the diflferent States quite extensivel3^ 
 according to the supply and demand of water, the topograph- 
 ical and physical features of the country, the objects for which 
 the water is to be used, and various other matters that are 
 supposed, at least, to be of local importance. In some of the 
 States and Territories practically no statutory laws have been 
 enacted regarding the use of water, while in others the most elab- 
 orate rules are laid down which attempt to cover all branches of 
 the subject. But simply a glance at some of them will be suffi- 
 cient to show the most cursor}^ reader that there is still room 
 for a great deal of legislative improvement upon the subject. 
 These statutor}- laws will be discussed under their respective 
 heads in another portion of this work.^ 
 
 § 171. Summary of Chapter. — In this chapter we have 
 seen that at the very inception of a valid appropriation of water 
 from a natural stream or lake, there must be a bona fide inten- 
 tion upon the part of the one attempting to appropriate the 
 water, to apply the same when his appropriation is completed 
 to some of the beneficial uses or purposes; there must also be 
 sufficient notice to the public of that intent to appropriate the 
 water to put a reasonable man upon his guard; and within a 
 reasonable time after the notice has been given the appropri- 
 ator must commence his works for the actual diversion of the 
 water, and the same must be prosecuted until they are com- 
 pleted, with all due and reasonable diligence; then there 
 must be an actual diversion of the water into the ditches and 
 works of the appropriator; then all of the water, when so 
 diverted, must be applied to some one of the beneficial or use- 
 ful purposes. We have also seen that when the appropriation is 
 completed, if the work or the diversion of the water has been 
 prosecuted vnth all due and reasonable diligence, by the doc- 
 trine of relation the api)ropriation relates liack, as against 
 
 1 See Part Second.
 
 264 APPROPRIATION OF WATER. [§ 171 
 
 the rights of all others subsequently attempting to appropriate 
 the waters of the same stream, to the time when the first step 
 was taken — or in other words, the notice of the appropriation 
 was given.
 
 CHAPTER VII. 
 Rights Acquired of Appropriators as Against Others. 
 
 176. 
 177. 
 
 178. 
 
 179. 
 
 Section. — 
 
 172. Scope of present chapter. 
 
 I. RIGHTS ACQUIRED IN WATERS 
 
 BY ONE APPROPRI.A.TOR AS 
 
 AGAINST OTHER APPRO- 
 
 PRIATORS. 
 
 173. The prior appropriator. 
 
 174. vSame.— Basey vs. Gallagher. 
 
 175. Rights of subsequent appro- 
 
 priators — in general. 
 
 Same. — Continued. 
 
 vSubsequent periodical appro- 
 priations. 
 
 Same.— .\uthoritie s dis- 
 cussed. 
 
 Appropriation of surplus 
 or residue of water. 
 
 180. Same. — Authorities dis- 
 
 cussed. 
 
 181. Successive appropriations. 
 
 182. Subsequent appropriation 
 
 before the works of the fir.st 
 appropriator are complete. 
 
 183. Distribution of increase in 
 
 volume of stream. 
 
 184. Doctrine of relation as be- 
 
 tween appropriators. 
 
 II. APPROPRIATION AS AGAINST 
 
 A CONGRESSIONAIv GRANT OE 
 
 THE GOVERNMENT. 
 
 185. Appropriation as against a 
 
 Congressional grant — In 
 general. 
 
 Section. — 
 
 186. Same. — Continued. 
 
 187. Decisions on subject. 
 
 188. Converse of doctrine. 
 
 189. Doctrine of Relation as ap- 
 
 plied to Congressional 
 grants. 
 
 III. CONTROVERSIES BETWEEN' 
 
 CONFLICTING GRANTS. 
 
 190. Conflicting grants. 
 
 IV. APPROPRIATION AS AGAINST 
 CONFLICTING CLAIMS OF SET- 
 TLERS ON LANDS. 
 
 191. 
 192. 
 
 193- 
 194. 
 
 195- 
 
 196. 
 197. 
 
 198. 
 199. 
 
 Riparian rights in Arid 
 Region. 
 
 Government patents in the 
 absence of statute. 
 
 The principle upon which the 
 proposition was based. 
 
 Same. — Continued. 
 
 Same. — Authorities on this 
 side di.scussed. 
 
 vSame. — Continued. 
 
 Comments upon above rul- 
 ings. 
 
 Criticism of Vansickle vs. 
 Haines, and the doctrine 
 therein expressed. 
 
 Same. — Authorities dis- 
 cussed. 
 
 Same— Same.- Common law 
 of ijigland.
 
 266 
 
 RIGHTS OF APPROPRIATORS. 
 
 [§172 
 
 20I. 
 
 202. 
 
 20 
 
 204. 
 
 Section. — 
 
 Same. — Common law of Eng- 
 land. — Adopted when. 
 
 Same. — Criticism of Van- 
 
 ■ sickle vs. Haines continued. 
 
 Sa me — S a m e. — Authorities 
 discussed. 
 
 Same — Same. — Jones vs. 
 Adams. 
 
 205. Same. — Reno Smelting, Mill- 
 
 ing and Reduction Works 
 vs. Stevenson. 
 
 206. Same. — Conclusions. 
 
 207. The rule subsequent to the 
 
 act of 1866. 
 20S. The doctrine of relation as 
 applied to patentees. 
 Same. — Continued. 
 Same.— Continued. 
 Prof. Pomero}' upon this sub- 
 ject. 
 212. Same. — Authorities on sub- 
 ject discussed. 
 
 209 
 210, 
 211 
 
 Section, — 
 
 213. Decisions following that of 
 
 Farley vs. S. M. & Ir. Co. 
 
 214. Decisions modifying rule laid 
 
 down in Farley vs. S. V. M. 
 & Ir. Co. 
 
 215. Decisions holding clearly 
 
 against the rule in the Far- 
 ley case. 
 
 216. Same. — Ruling of the Land 
 
 OfBce upon the subject. 
 
 217. Same. — Land Office sus- 
 
 tained by the Supreme 
 Court of the United States. 
 
 218. Same. — Discussion Con- 
 
 tinued. 
 
 219. Sturr vs. Beck. 
 
 220. Same. — Concluding remarks 
 
 upon the subject 
 
 221. Summary of the chapter. 
 
 § 172. Scope ol* Present Chapter. — The present chapter 
 will be devoted to a discussion of the rights acquired by 
 appropriators of water, as against others, under the following 
 divisions of the subject: First, the rights acquired by persons 
 who claim the waters of a stream or lake flowing through the 
 public lands by virtue, mereh', of an appropriation Of the 
 water itself. Second, The rights acquired by the appropria- 
 tion of water, as against a Congressional grantee of the Gov- 
 ernment, both prior and subsequent to the appropriation. 
 Third, The rights acquired in waters flowing over the lands 
 granted, where there is a controvers}^ regarding the same 
 between Congressional grantees. Fourth, Questions incontro- 
 vers}' between those who claim the waters of a stream by mere 
 appropriation, as against settlers upon the public lands who 
 acquired their title, which finalh^ culminated in a patent to 
 lands bordering upon the streams, by the regular disposal of 
 them through the land office.
 
 § 173]. 
 
 RIGHTS OF APPROPRIATORS. 
 
 267 
 
 I. Riglits Acquired in Waleis by one Appropriator, us 
 against other Appropriators. 
 
 § 173. The prior Appropriator.— As between persons who 
 claim the waters of streams or lakes flowing through the pub- 
 lic lands, merely by prior appropriations of the water itself, 
 he who is first in time has the best, and sometimes the exclu- 
 sive right to the use of the waters of a certain stream, to the 
 full extent of such appropriation. ^ This principle, as has 
 been seen, is a comparatively new one, and is entirely contrary 
 to the common law theories, where priority of appropriation 
 of w^ater of a stream by a riparian proprietor confers no 
 exclusive right to the use of it as against any one or all the 
 
 1 Atchison vs. Peterson, 20 Wall. 
 507; r Mont. 561; Erode r vs. 
 Natoma Water Co., loi U. S. 274; 
 Basey vs. Gallagher, 20 Wall. 670; 
 I Mont. 4.55; Bntte Canal Co. vs. 
 Vaughn, 11 Cal. 143; Ortman vs. 
 Dickson, 13 Cal. 38; McDonald vs. 
 Bear River M. Co., 15 Cal. 145; 13, 
 Cal. 220; Himes vs. Johnson, 61 
 Cal. 259; Hoffman vs. Stone, 7 Cal. 
 49; Tartar vs. Spring C. M. & M. 
 Co., 5 Cal. 395; Irwin vs. Phillips, 
 5 Cal. 140; Conger vs. Weaver, 6 
 Cal. 548; Hill vs. King, 8 Cal. 336; 
 Bear River Co. vs. New York M. 
 Co., 8 Cal. 27; McKinney vs. Smith, 
 21 Cal. 374; Union Water Co. vs. 
 Carey, 25 Cal. 504; Simms vs. 
 Smith, 7 Cal. 148; Gale vs. Tou- 
 lumne W. Co., 14 Cal. 25; Maeris 
 vs. Bicknell, 10 Cal. 217; Davis vs. 
 Gale, 32 Cal. 26; Osgood vs. El 
 Dorado W. M. Co., 56 Cal. 571, 
 Brown vs. Mullin,65 Cal. 89; Jun- 
 kans vs. Bergin,67 Cal. 267; Ware 
 vs. Walker, 70 Cal. 591; Hill vs. 
 Newman, 5 Cal. 445; Leigh Co. vs. 
 Independent Co., 8 Cal. 223; Sulli- 
 van vs. Beardsley, 55 Cal. 608; 
 Thorp vs. Woolinaii, i .Mont. 168; 
 Stafford vs. I[oriiI>ucklc, 3 .Mont. 
 
 485; Wheeler vs. Northern Colo. 
 Ir. Co., 10 Colo. 582; Schilling vs. 
 Rominger, 4 Colo. 100; Golden 
 Canal Co. vs. Bright, 8 Colo. 144; 
 Coffin vs. Left Hand Ditch Co., 
 6 Colo. 443; Hammond vs. Rose, 
 II Colo. 524; Fort Morgan Land 
 Co. vs. South Platte Ditch Co., 
 (Colo.) 30 Pac. Rep. 1032; Combs 
 vs. Agricultural Ditch Co., 17 
 Colo. 142; 28 Pac. Rep. 966; Far- 
 mers' High Line Canal Co. vs. 
 Southworth, 13 Colo, iii; 21 Pac. 
 Rep. 1028; Lobdell vs. Simpson, 
 2 Nev. 274; Barnes vs. Sabron, 10 
 Nev. 217; Ophir S. M. Co. vs. Car- 
 penter, 4 Nev. 534; Straight vs. 
 Brown, 16 Nev. 317; James vs. 
 Goodenough, 7 Nev. 324; Jones vs. 
 Adams, 19 Nev. 78; Dalton vs. 
 Bowker, 8 Nev. 190; Barkley vs. 
 Tieleke, 2 Mont. 59; Keeney vs. 
 Carillo, 2 N. M. 480; Clough vs. 
 Wing, (Ariz.) 17 Pac. Rep. 453; 
 Crane vs. Winsor, 2 Utah, 248; 
 Monroe vs. Ivie, 2 Utah, 535; Lehi 
 Ir. Co. vs. Moyle, 4 Utah, 327; 9 
 Pac. Rep. 867; Hayden vs. Long, 
 H Oreg. 244; Kaler vs. Campbell, 
 F3 Oreg. 596; Hillman vs. Hard- 
 wick, (Idaho) 28 Pac. Rep. 438.
 
 268 
 
 RIGHTS OF APPROPRIATORS. 
 
 [§173 
 
 other riparian proprietors, unless the latter's rights are im- 
 paired by grant or license, or by the prior appropriation con- 
 tinued adversely for the period of time required for the acqui - 
 sition of a right by prescription.^ The common law doctrine 
 of riparian rights does not prevail in the majority of the 
 States and Territories of the great arid region which lies west 
 of the loo meridian. Upon the public lands in that section 
 of this country property in a stream of water may be acquired 
 by mere appropriation of the same for irrigation, mining, the 
 operation of mills, or other useful purposes, and the first 
 appropriator is, to the extent of his appropriation, the owner 
 as against all the world.- This is true, even as against the 
 Government itself when Congress has ratified and confirmed 
 the acts of the appropriator as it did by the Act of July, 1866, 
 and also the amendator}^ Act of 1870.^ All prior claimants 
 are entitled to the water of the stream until it is all exhausted, 
 provided the priority is based upon both legal appropriation and 
 
 iSee Ante Chapter III, Section 
 80. See also Palmer vs. Mulligan, 
 3 Caines, 307; 2 Am. Dec. 270; 
 Piatt vs. Johnson, 15 Johns. 212; 
 8 Am. Dec. 233; Martin vs. Biglow, 
 2 Aikens, 184; 16 Am. Dec. 696; 
 Hay vs. Sterritt, 2 Watts. 327; 27 
 Am. Dec. 313; Stout vs. McAdams, 
 
 2 Scam. 67; 33 Am. Dec. 441; Davis 
 vs. Fuller, 12 Vt. 178; 36 Am. 
 Dec. 334; Evans vs. Merriweather, 
 
 3 Scam. 492; 28 Am. Dec. 107. 
 Hartzall vs. Sill; 12 Pa. St. 24S; 
 Bliss vs. Kennedy, 43 111. 67; Rudd 
 vs. Williams, 43 111. 385; Oilman 
 vs. Tilton, 5 N. H. 231; Cowles vs. 
 Kidder, 24 N. H. 378; Stillman vs. 
 W. R., etc., Co., 3 Wood & M. 550; 
 Parker vs. Hotchkiss, 25 Conn. 
 321; Keeney vs. Uniou Mfg. Co., 
 39 Conn. 576; Tyler vs. Wilkinson, 
 
 4 Mason, 397; Pugli vs. Wheeler, 
 2 Dev. & B. 55; Blanchard vs- 
 Ba.cir, 8 Green, i, 504; 23 Am. Dec. 
 
 504; W^adsworth vs. Tillotson, 15 
 Conn. 368; 39 Am. Dec. 391. 
 
 2l_,obdell vs. Simpson, 2 Nev- 
 274; Ophir S. M. Co. vs. Car- 
 penter, 4 Nev. 534; Barnes vs. 
 Sabron, 10 Nev. 217; Strait vs. 
 Brown, 16 Nev. 317; 40 Am. Rep. 
 497; Hill vs. Newman, 5 Cal. 445; 
 Kelly vs. Natoma Water Co., 6 
 Cal. 107; Hoffman vs. Stone, 7 Cal. 
 46; Hill vs. King, 8 Cal. 336; Bear 
 River, etc., Co. vs. N. Y. Mining 
 Co., 8 Cal. 327; McDonald vs. Bear 
 River Co., 13 Cal. 220; Kidd vs. 
 Laird, 15 Cal. 161; Ortnian vs. 
 Dixon, 13 Cal. 33; Phoenix W. Co. 
 vs. Fletcher, 23 Cal. 481; Wixon 
 vs. Bear River Co., 24 Cal. 367; 
 Hill vs. Smith, 27 Cal. 4S0; Crane 
 vs. Winsor, 2 Utah 24S; Schilling 
 vs. Rominger, 4 Colo. 100. 
 
 3U. S. Rev. Stat., Sees. 2339, 
 2340; Broder vs. Natoma Water 
 Co., loi U. S. 247; Jennison vs. 
 Kirk, 98 r. S. 453.
 
 § 173]. RIGHTS OF APPROPRIATORS. 209 
 
 use. Hence it follows that the first appropriator is entitled, 
 by virtue of his prior appropriation, to use and enjoy the 
 water to the full extent of his original appropriation, even 
 when this includes all the water of the stream.^ And where 
 his original appropriation included all of the water in a stream, 
 at a point where a ditch starts, he ma}' increase the amount 
 diverged b}^ enlarging his ditch at pleasure, and others cannot 
 complain.- The prior appropriator is equally entitled to have 
 his right unimpaired by subsequent appropriators above as 
 well as below^ him;^ and all such subsequent parties can only 
 appropriate the water subject to the right of the first, whose 
 right to have the water flow into his ditch for the application 
 to the use for which he appropriated it, is co-extensive with 
 the ditch itself."* The first appropriator can sell his right to 
 use the water, and his grantee will take the portion originally 
 enjoyed by himself, and all subsequent appropriators must 
 take the water subject to the rights of such grantee, whose 
 source of title is traced back to that of the original appropri- 
 ator.^ However, a prior appropriator's right to take the 
 water of a stream is protected only to the extent and mode of 
 appropriation, and the amount of w^ater actually applied to 
 some beneficial use or purpose, should the rights of others 
 intervene between the time of his first diversion and his 
 attempt at enlargement.^ 
 
 iGouldon Waters, Section 229; 2james vs. Williams, 31 Cal. 211 ; 
 
 Brown vs. Mullin, 65 Cal. 89; Lehi Ir. Co. vs. Moyle, 4 Utah 327; 
 
 Edgar vs. Stevenson, 70 Cal. 2S6. Charnock vs. Rose, 70 Cal. 189; 
 
 See Post Chapter VIII, Sections Edgar vs. Stevenson, 70 Cal. 286. 
 
 225, 237. -^ Hill vs. King, 8 Cal. 336. vSee 
 
 Prior appropriation of all the also authorities cited above, 
 
 waters of a stream, applied to irri- 1 Lower King R. D. Co. v.s. 
 
 gating purposes, gives the better Lower King R. F. Co., 60 Cal. 
 
 right to the tributaries and all the 408. Ibid. 
 
 direct and immediate sources of 5 ]iasey vs. Gallagher, 87 U. S. 
 
 supply of the stream; and when 670. 
 
 the right once vests, it must be t'Lobdell vs. Simpson, 2 Nev. 
 
 protected. Malad Val. Jr. Co. vs. 274; Butte Canal & Irrigation Co. 
 
 Campbell, (Idaho) 18 Pac. Rep. 52. vs. Vaughn, 11 Cal. 143; Procter 
 
 See also Strickler vs. Colorado vs. Jennings, 6 Nev. 83; Ortnian 
 
 Springs Company, 16 Colo. 61; 26 vs. Dixon, 13 Cal. 34; Barnes vs. 
 
 Pac. Rep. 313. vSabron, 10 Nev. 217; Strait vs.
 
 270 RIGHTS OF APPROPRIATORS. [§ 174 
 
 § 174r. Same. — Biisey vs. Oallagher. — This very important 
 question was thoroughly discussed by Mr. Justice Field, in 
 rendering the opinion of the Supreme Court of the United 
 States in the case of Basey vs. Gallagher.^ This was an 
 action brought by the plaintiffs Gallagher and others, apply- 
 ing for an injunction to restrain and perpetually enjoin the 
 defendant from the use of the waters of a certain stream, 
 known as the Avalanche, flowing in the Missouri Valley, 
 Montana. Both parties claimed the water, merelj- by the 
 appropriation of the same and for the purpose of irrigation; 
 the plaintiffs claiming by their own appropriation and 
 their rights by purchase of a certain portion of their claim 
 from their predecessors in interest. The Court said: "The 
 question on the merits in this case is whether a right to run- 
 ning waters on the public lands of the United States, for 
 purposes of irrigation, can be acquired by prior appropriation, 
 as against parties not having the title of the Government. 
 Neither party has any title from the United States; no ques- 
 tion 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 the patent of the Govern- 
 ment. At present both parties stand upon the same footing; 
 neither can allege that the other is a trespasser against the 
 Government without at the same time invalidating his own 
 claim. 
 
 " In the late case of Atchison vs. Peterson, 20 Wall. 507, we 
 had occasion to consider the respective rights of miners to 
 running water upon the mineral lands of the public domain ; 
 and we there held that by the custom which had obtained 
 among miners in the Pacific States and Territories, the party 
 who first subjected the water to use, or took the necessary 
 steps for that purpose, was regarded, except as against the 
 
 Brown, 16 Nev. 317; Cliiatovich Barker, 42 Cal. 233; Brown vs. 
 
 vs. Davis, 17 Nev. 133; 28 Pac. Rep. Mullin, 65 Cal. 89; American Co. 
 
 966; Thomas vs. Guiraud, 6 Colo. vs. Bradford, 27 Cal. 360; Junkin 
 
 530; Combs vs. Agric. Ditch Co., vs. Bergin, 67 Cal. 267; Low vs. 
 
 17 Colo. 142; McKinne)' vs. Smith, Schaffer (Ore.), 33 Pac. 678. 
 
 21 Cal. 374; Nevada W. P. Co. vs. l 20 Wall. 670. 
 Powell, 34 Cal. 109; Higgins vs.
 
 §174]. RIGHTS OF APPKOPRIATORS. 271 
 
 Government, as the source of title in all controversies respect- 
 ing it; that the doctrines of the common law declarator^' of 
 the rights of riparian proprietors were inapplicable, or appli- 
 cable only in a limited extent to the necessities of the miners 
 and were inadequate to their protection; that the equality of 
 right recognized by that law among all the proprietors upon the 
 same stream would have been incompatible with any extended 
 diversion of the water by one proprietor, and its conveyance 
 for mining purposes to points from which it could not be 
 restored to the stream; that the Government, by its silent 
 acquiescence, had assented to and encouraged the occupation 
 of the public lands for mining, and that he who first connected 
 his labor with propert}^ thus situated and open to general 
 exploration, did in natural justice acquire a better right to its 
 use and enjoyment than others who had not given such labor; 
 that the miners on the public lands throughout the Pacific 
 States and Territories, b}' their customs, usages and regula- 
 tions, had recognized the inherent justice of this principle, 
 and the principle itself was at an early period recognized by 
 legislation and enforced by the Courts in those States and 
 Territories, and was finally approved by the legislation of 
 Congress in 1866. The views there expressed and rulings 
 made are equally applicable to the use of ivater on the public lands 
 for the purposes of irrigation. No distinction is made in those 
 States and Territories by the custom of miners or settlers or 
 by the Courts, in the rights of the first appropriators from the 
 use made of the water, if the use be a beneficial one. 
 
 " In the case of Tarter vs. Spring Creek Water and Mining 
 Company, 5 Cal. 397, decided in 1855, the Supreme Court of 
 California said: ' The current of decisions of this Court go to 
 establish that the policy of this State as derived from her 
 legislation is to permit settlers in all capacities to occupy the 
 public lands and by such occupation to acquire the right of 
 undisturbed enjoyment against all the world but the true 
 owner. In evidence of this, Acts have been passed to protect 
 the possession of agricultural lands acquired by mere occu- 
 pancy; to license miners; to provide for the recovery of min- 
 ing claims; recognizing canals and ditches which were known 
 to divert the water of streams from their natural channels for
 
 272 RIGHTS OF APPROPRIATORS. [§174 
 
 mining purposes, and others of like character. This policy 
 has been extended equally to all pursuits, and no partialit}^ 
 for one over another has been evinced, except in the single 
 case where the rights of the agriculturist are made to 3deld 
 to those of the miner where gold is discovered in his land. 
 The policy of the exception is obvious. Without it the 
 entire gold region might have been enclosed in large tracts 
 under the pretense of agriculture and grazing, and eventually 
 what would have sufiiced as a rich bounty to many thousands 
 would be reduced to the proprietorship of a few. Aside from 
 this the legislation and decisions have been uniform in award- 
 ing the right of peaceable enjoj'ment to the first occupant 
 of the land or anything incident to the land.' Per Heyden- 
 feldt, J., sCal. 397- 
 
 ' ' 'Ever since that decision it has been held generally through- 
 out the Pacific States and Territories, that the right to water 
 by prior appropriation for auy beneficial p2i,rpose is entitled to 
 protection. Water is diverted to propel machinery in flour- 
 mills and saw-mills, and to irrigate land for cultivation, as 
 well as to enable miners to work their mining claims; in all 
 such cases the right of the first appropriator, exercised within 
 reasonable limits, is respected and enforced. * * * * 
 Several decisions of the Supreme Court of Montana have been 
 cited to us recognizing the right by prior appropriation to 
 water for purposes of mining on the public lands of the United 
 States, and there is no solid reason for upholding the right 
 when the water is thus used, which does not apply with the 
 same force when the water is sought on those lands for any 
 other equally beneficial purpose. In Thorp vs. Freed, i Mont. 
 652, 665, the subject was very ably discussed by two of the 
 Justices of that Court, who differed in opinion upon the ques- 
 tion in that case, where both parties had acquired the title of 
 the Government. This disagreement would seem to have 
 arisen in the application of the doctrine to the case where 
 title had passed from the Government, and not in its applica- 
 tion to a case where neither party had acquired that title. In 
 the course of his opinion, Mr. Justice Knowles stated that 
 ever since the settlement of the Territory it had been the 
 custom of those who had settled themselves upon the public
 
 § 174, 175J. RIGHTS OF APPROPRIATORS. 273 
 
 domain and devoted an}^ part thereof to the purposes of agri- 
 culture, to dig ditches and turn out the waters of some stream 
 to irrigate the same; that this right had been generally recog- 
 nized by the people of the Territory, and had been universally 
 conceded as a necessity of agricultural pursuits. ' So uni- 
 versal,' said the Justice, 'has been this usage that I do not 
 suppose there has been a parcel of land to the extent of one 
 acre cultivated within the bounds of this Territory that has 
 not been irrigated from some running stream.' 
 
 "We are satisfied that the right claimed by the plaintiffs 
 is one, which under the customs, laws and decisions of the 
 Courts of the Territory and the Act of Congress should be 
 recognized and protected. 
 
 "We therefore affirm the decree of the Supreme Court 
 of the Territory." 
 
 § 175. Rights of Subsequent Appropriators— In (jleueral. 
 
 — The rights of the prior appropriator being fixed by the 
 extent of his appropriation, others may locate upon the 
 stream, either above or below, and take all the water that is 
 left flowing in the natural channel, provided no interference 
 with or injury of the rights of the prior appropriator is 
 thereby caused. These latter parties take the water subject 
 to the rights of the first appropriators, and are prior appro- 
 priators themselves as regards those still subsequent to them, 
 in the order that they make their respective appropriations. 
 Or in other words, among the successive appropriators, each 
 is in the position of a prior one towards all who are subsequent 
 to himself.^ There may be a large number of successive ap- 
 propriators, and in fact there is no limit to the operation of 
 
 1 Stein Canal Co. vs. Kern Island, can Co. vs. Bradford, 27 Cal. 476; 
 
 etc., Co., 53 Cal. 563; Broder vs. McKinney vs. Smith, 21 Cal. 374; 
 
 Natoma Water Co., 50 Cal. 621; 10 1 Ortmau vs. Dixon, 13 Cal. 143; 
 
 U. S. 274; Smith vs. O'llara, 43 Kelly vs. Natoma Water Co., 6 
 
 Cal. 371; Brown vs. Mullin, 65 Cal. Cal. 105; Lobdell vs. Simpson, 2 
 
 89; Higgins vs. Barker, 42 Cal. 233; Ncv. 274; Procter vs. Jennings, 6 
 
 Junkans vs. Bergin, 67 Cal. 267; Nev. 83; Barnes vs. Sabron, 10 
 
 Nevada Water Co. vs. Powell, 34 Nev. 217; I^arimer County R. Co. 
 
 Cal. 109; Davis vs. Gale, 32 Cal. 26; vs. People, 8 Colo. 614; 9 Pac. Re]). 
 
 Hill vs. Smith, 27 Cal. 476; Ameri- 794.
 
 274 RIGHTS OF appropeiators. [§1^75 
 
 the doctrine, except such phj^sical limits as arise from the 
 size of the stream itself and the amount of water taken by 
 each claimant. Each subsequent appropriator is entitled to 
 have the water flow in the same manner as when he first 
 made his appropriation, and ma}^ insist that the prior appro- 
 priators shall confine themselves to what was actually appro- 
 priated or necessar}' for the purpose for which they intended 
 to use the water. ^ In all controversies between prior and 
 subsequent appropriators of water, the question is, has the 
 use and enjoyment of the water, for purposes for which the 
 first appropriator claims it, been impaired by acts of the 
 subsequent claimant ? ^ Bearing upon this point the Supreme 
 Court of the United States, in the case of Atchison vs. Peter- 
 son,-'^ holds: That what diminution of quantity or deterior- 
 ation in quality, will constitute an invasion of the rights of 
 the first appropriator, will depend upon the special circum- 
 stances of each case, considered with reference to the uses to 
 which the water is appropriated. A slight deterioration in 
 qualit}' might render the water unfit for drinking or domes- 
 tic purposes, whilst it would not sensibly impair its use for 
 mining or irrigation. In all controversies between him and 
 parties subsequently claiming the water the question for 
 determination is necessaril}' whether his use and enjoyment 
 of the water to the extent of the original appropriation has 
 
 1 Ibid. Rominger vs. Squire, g ditches since construction, and no 
 
 Colo. 327; Barnes vs. Sabron, 10 question of the right of enlarge- 
 
 Nev. 217, where the Court held, nieut being involved, he must be 
 
 that where the prior appropri- restricted to the capacity of his 
 
 ator of a stream has constructed ditches at their smallest point, 
 
 ditches in order to irrigate his White vs. Todd's Valley Co., 8 Cal. 
 
 land, if the capacity of his ditches 443; Opliir S. M. Co. vs. Carpenter, 
 
 is greater than is necessary to 6 Nev. 393; Caruthers vs. Pember- 
 
 irrigate his farming land, he must ton, i Mont, in; Dougherty vs. 
 
 be restricted to the quantity Haggin, 56 Cal. 523; Wixson vs. 
 
 needed for the purposes of irriga- Devine, 80 Cal. 385; Byrne vs. 
 
 tion, for watering his stock and Crafts, 73 Cal. 641; Alder G. M. 
 
 for domestic purposes; but if the Co. vs. Hayes, 6 Mont. 31. 
 
 capacity is not more than is suffi- 2 Hill vs. Smith, 27 Cal. 476; 
 
 cient for those purposes, then, Union W. Co. vs. Crary, 25 Cal. 
 
 under the facts of this case, no 504. 
 
 change having been made in the 3 20 Wall. 507.
 
 §175,170]. RIGHTS OF APl'ROPRIATORS. 275 
 
 been impaired b}' the acts of the defendant (the subsequent 
 appropriator). So, bearing in mind if the subsequent appro- 
 priators do in no way impair the right of the first, the}' may 
 take in the order of their respective appropriations an amount 
 of water from anj'- part of the stream, sufficient for the pur- 
 poses for which they may claim it, even if they take all of the 
 remaining water in the stream. The right of the first appro- 
 priator is not determined by the comparison of the value of 
 the water to him, as compared to the value to subsequent 
 appropriators. " A comparison of the value of conflicting 
 rights would be a novel mode of determining their legal 
 superiority."^ 
 
 A subsequent appropriator from a natural stream has no 
 right to destroy the ditch of a prior one, or to materially 
 diminish the quantity or deteriorate the quality of the water 
 to which the latter is entitled; nor has the prior appropriator 
 a right to extend his use of water to the prejudice of the 
 subsequent appropriators. 
 
 §176. Same— Continued.— A prior appropriator who, by 
 means of a dam and ditch, has diverted a certain portion of 
 the water of a stream sufficient for his purpose according to 
 the condition and height of the stream at the time of his 
 appropriation, is not entitled to raise the height of his dam 
 in order to continue the diversion through his ditch when 
 physical and unanticipated changes occur in the stream, 
 whether from natural or artificial causes, if such alterations 
 in the dam interfere with subsequent appropriators, provided 
 such subsequent appropriators did not cause the change.- 
 When the right has once been vested in the subsequent ap-pro- 
 priators, the prior one is no more justified in extending his 
 own claims, or in changing the means of appropriation, or in 
 interfering with the full enjoyment of the right vested in the 
 subsequent appropriators, than those later parties would be 
 in encroaching upon the prior rights of the first. Where the 
 
 1 Weaver vs. Kureka Lake Co. 15 Ramsey vs. Chandler, 3 Cal. 93; 
 Cal. 271; 1-abian vs. Collins, 2 Sims vs. vSmitli, 7 Cal. 150; 
 Mont. 510. O'Keefe vs. Cnnninj^ham, 9 Cal. 
 
 2 Hill vs. Smith, 27 Cal. 4^2; s-Sr ; Jones vs. Jackson, 9 Cal. 24.4.
 
 276 RIGHTS OF APPROPRIATORS. [§ 176 
 
 facts appear in evidence that a party first appropriated a por- 
 tion of the water of a certain stream at a given point, and 
 diverted and enjo^^ed the water bj^ means of a ditch and dam 
 of a certain height, from these facts alone no legal presump- 
 tion arises that a right had at that time vested to take the 
 water out by moving his dam to a point higher up the stream 
 where the back water would injure the rights of a subsequent 
 appropriator, or by means of building a higher dam which 
 would affect the water at a point higher up the stream in the 
 same manner. On the contrary, the legal presumption from 
 these facts alone would rather be that the right was no more 
 extensive than his present enjoyment, if on extending his 
 claim, it interfered with the vested rights of others. The 
 limitation of the first appropriator's right to its actual enjoy- 
 ment at the time being assumed, the subsequent appropriators 
 are authorized to take the waters from the stream above, and 
 use the same for irrigating their lands, or for any other useful 
 purpose, so far as they can do so without injury to the first 
 appropriator's prior rights; and after the rights of the subse- 
 quent parties become vested the first appropriator cannot 
 rightfully construct a dam at a point further up the stream 
 than where his first dam was located if he thereby flood the 
 latter's lands or mining claims, which were not affected by 
 the full enjoyment of the water rights of the first, as they 
 existed at the time of the location of the claims of the later 
 comers; nor can the same results be lawfnll}' accomplished by 
 erecting a dam of much greater height than the old one at 
 the point where it was before located. The latter mode of 
 encroachment is as clearly illegal and wrongful as the former. 
 If the first appropriator did not in fact, before the appropria- 
 tion of the latter's claims, acquire the right to erect his dam 
 to the height to which it was formerly carried, he could not 
 afterwards acquire the right as against the latter, without 
 their consent. The fact that subsequent changes occur in 
 the bed of the stream, and thereby render it impossible to 
 longer divert the water at a point chosen without raising a 
 dam, can make no difference. The question is, " What was 
 the extent of the first appropriator's right to affect the stream 
 above, by the addition to his dam, at the time when the lat-
 
 § 176, 177]. RIGHTS OF APPROPRIATORS. 
 
 977 
 
 ter's appropriation was made? " Whatever was left unappro- 
 priated at the time was open to be appropriated by subsequent 
 parties, and if they, by such subsequent appropriation, 
 acquired the right to use a certain amount of water of the 
 stream to irrigate their lands or to work their mining claims 
 in their condition at that time in reference to the stream, the 
 first appropriator, in spite of his priority, is not authorized, 
 by erecting a higher dam, to interfere with those rights. He 
 may have legal remedies against the parties who filled up the 
 stream and destroyed the use of the water right he had 
 acquired, but the remedy is not b}' building his dam higher 
 and thereby destroying the rights of other parties who had 
 located upon the stream above, subject only to the right of 
 the claim of the first appropriator, whatever it was, as it 
 existed at the time of such location, and which parties were 
 entirely innocent of the iujur}^ to the first. If this was the 
 law the exercise of such a right might lead to the flooding of 
 a large part of the country above, to the irreparable injury of 
 all having lands thereon.^ 
 
 § 177. Siil)se(iueut Periodical Appropriaiioiis. — It makes 
 no difference in the application of the doctrine of subsequent 
 appropriations from what soiirce the surplus or residue of the 
 water may arise. It may be constant, resulting from a prior 
 appropriation of a portion only of the water, or it may be 
 intermittent, resulting from a prior appropriation of all the 
 water only a part of the time. There is no difi'erence in prin- 
 ciple between appropriations measured by time and those 
 measured by volume. Hence one person can appropriate the 
 water in such a manner that he only takes and uses it on cer- 
 tain days of the week or month, or even certain hours of each 
 day, and subsequent appropriators may acquire a vested right 
 to the same amount of water flowing in the stream on the 
 other days or hours not embraced in the claim of the first. 
 As where a person only diverts and uses the waters on Mon- 
 days, Wednesdays and Fridays, a subsequent appropriator 
 may acquire a perfect right to use the same quantity of water 
 
 1 Il>i(l. Nc-vadii Water Co. vs. Powc-ll, .^ | Cal. 109.
 
 278 RIGHTS OF APrROPRIATORS. [^ 177, 178 
 
 on Sunda3^s, Tuesdays, -Tliursdaj's and Saturdays. And again 
 the days may be likewise divided, as where the first appropria- 
 tor only uses the water in the day time or certain hours of the 
 day, other parties may acquire a vested right to use the water in 
 the night time, or in the remaining hours of the daj- time when 
 it is not being used by the first. Hence, in general, it follows 
 from the above that if a certain portion of the water is appro- 
 priated only for certain days or a certain time of the day by 
 the first appropriator, others following may not only appro- 
 priate the surplus in whole or in part, but ma}' also use the 
 quantity of the water appropriated b}' the first at such times 
 as it is not used or needed by him, and when so appropriated 
 by the second parties, their right thereto is as perfect and en- 
 titled to the same protection as that of the first appropriator 
 to the portion claimed by him.^ 
 
 § 178. Same. — Autlioritu's Discussed. — Mr. Chief Justice 
 Hawley, in an exceedingly well considered opinion, in the 
 case of Barnes vs. Sabron,'-^ sums up this principle as follows: 
 " We think the rule is well settled upon reason and authority 
 that if the first appropriator only appropriates a part of the 
 water of a stream for a certain period of time any other person 
 or persons maj- not onlj^ appropriate a part for the whole of the 
 residue and acquire right thereto as perfect as the first appro- 
 priator, but may also acquire a right to the quantity of water 
 used b}- the first appropriator at such times as is not needed or 
 used by him. In other words, if plaintiff"only appropriated the 
 water during certain days in a week, or during a certain num- 
 ber of daj^s in a month, then the defendants would be entitled 
 to its use in some other days of the week, or the other days in 
 the month. The Supreme Court of California, in Smith vs. 
 O'Hara,^ have announced what appears to us to be the correct 
 doctrine. 'It is usualh^ the case,' says the Court, 'that the 
 amount of water to which several persons claiming its use are 
 
 1 Barnes vs. Sabron, lo Nev. 217; Edgar vs. vStephenson, 70 Cal. 286; 
 
 Smith vs. O'Hara, 43 Cal. 371; 11 Pac. Rep. 204. 
 McKinney vs. Smith, 21 Cal. 374; 2 10 Nev. 217, 245. 
 
 Ortman vs. Dixon; 13 Cal. 34; 3 43 Cal. 376.
 
 § 178, 179]. IIIGIITS OF Al'^ROPKIAT()K^;. 279 
 
 entitled is measured by inches, according to miners' measure- 
 ment, or b}- the capacity of the ditches through which it is 
 conducted from the stream, but there is no reason why the 
 amount ma}- not be measured in some other mode. They hold 
 the amount appropriated b)^ them respectively as they would 
 do had the paramount proprietor granted to each the amount 
 by him appropriated. The right to use 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 speci- 
 fied times. An agriculturist might appropriate the waters of 
 a stream for irrigation during the drj' season, and a miner 
 might appropriate them for his purposes during the remainder 
 of the 3^ear, and so maj^ several persons appropriate the wa- 
 ters for use during any different periods. There is no differ- 
 ence in principle between appropriations of water measured by 
 time and those measured b}^ volume.' " 
 
 Also in a verj- late case, decided by the Supreme Court of 
 California, of Hesperia I^and & Water Co. vs. Rogers,^ 
 Thornton, J., in rendering the opinion of the Court, said: 
 " It is urged that the use by the defendant was not contin- 
 uous for the reason that the defendant only ran the water in 
 his ditch every year during the cropping season and when he 
 needed it. * * * He uses it every day, or once in every 
 week, or twice a month, as his needs require. He is not re- 
 quired to go over it when he does not need it; to make his use 
 of the way continuous the claimant is required to make a 
 reasonable use of the way as his needs require. So it is of 
 the ditch if, whenever the claimant needs it from time to 
 time he makes use of it, this is a continuous use. An omis- 
 sion to use when not needed does not disprove a continuity of 
 use shown b}^ using it when needed. Neither such inter- 
 mission nor omission breaks the continuity." And hence 
 the Court held that the defendant had acquired a right by 
 prescription. 
 
 § 171). Approprijition of Surplus or Ri'siduc of Wnler.— 
 
 Another method b\- which a suljsequcnt appropriat(n- may se- 
 cure a perfect right in the waters of streams is by the appro- 
 
 IS3 Cal. II.
 
 280 RIGHTS OF APPROPRIATORS. [§ 179 
 
 priations of the surplus or residue after the first appropriator 
 has taken out the amount required for his purposes. That is 
 to say, the amount that the first appropriator is entitled to use 
 being fixed by the extent of his appropriation,^ and as he can 
 not enlarge his original appropriation, or make any change to 
 the injury of subsequent appropriators when he has once 
 taken out water sufiicient for the purpose for which he made 
 the appropriation, his right is exhausted, and others may take 
 the balance or residue. As for instance, if the prior appro- 
 priation is for running a mill it does not include all the water 
 of the stream at the point where the diversion is made when 
 there is more than sufficient for that purpose, but only so 
 much as is actually needed for the purpose, and subsequent 
 parties may take the balance to irrigate their lands, work their 
 mining claims, or for any other useful or beneficial purpose; 
 and the subsequent parties obtain a vested right to its use, 
 and may insist that the water continue to flow in the stream 
 as it flowed when they made their respective appropriations, 
 if it is prevented in so doing by the prior appropriator.^ Upon 
 this point, in the opinion of Ortman vs. Dixon, ^ decided by 
 the Supreme Court of California, Baldwin, Judge, said: " We 
 presume that it is not to be doubted that the defendants, hav- 
 ing first appropriated the water for their mill purposes, are 
 entitled to it to the extent appropriated and for the purposes 
 to the exclusion of any subsequent appropriation for the same 
 or any other use. We hold the absolute property in such 
 cases to pass by appropriation as it would pass by grant. But 
 another and different question arises, and that is to what 
 
 iLobdell vs. Simpson, 2 Nev. so much of the water as is neces- 
 
 274; Proctor vs. Jennings, 6 Nev. sary for that particular purpose 
 
 83; Byrne vs. Crafts, 73 Cal. 641; The surplus may be the subject of 
 
 Butte Canal and Ditch Co. vs. a new appropriation, which will 
 
 Vaughn, 11 Cal. 143; See Ante give to the second appropriator a 
 
 Section 173. paramount use to all the waters of 
 
 2 Ortman vs. Dixon, 13 Cal. 33. the stream, not required for the 
 
 In McKinney vs. Smith, 21 Cal. specific purpose of the first appro- 
 
 374, the Court held: that the tak- priation. See also Davis vs. Gale, 
 
 ing up of the water of a certain 32 Cal. 26; N. C. & S. C. vs. Kidd, 
 
 stream for a special limited pur- 37 Cal. 313. 
 pose is an appropriation of only 3 13 Cal. 34, 38.
 
 §179,180]. RIGHTS OF Al'l'KOl'KIATORS. 
 
 281 
 
 extent does this power or right go ? The measure of the right 
 as to extent follows the nature of the appropriation or the uses 
 for which it is taken. The intent to take and appropriate 
 and the outward act go together; if we concede that a man has 
 right by mere priority to take as much water from a running 
 stream as he chooses, to be applied to such purposes as he 
 pleases, the question still arises, what did he choose to take ? 
 And this depends upon the general and particular uses he 
 makes of it. If, for instance, a man takes up water to irrigate 
 his meadow at certain seasons, the act of appropriation, the 
 means used to carry out the purpose, and the use made of the 
 water, would qualify his right of appropriation to a taking for 
 a specific purpose and limit the quantity to that purpose, or to 
 so much as is necessary for it. So, if A erects a mill on a run- 
 ning stream, this shows an appropriation of the water for a 
 mill; but, if he suffers a portion of the water, or the body of 
 it, after running the mill, to go down its accustomed course 
 we do not see why persons below may not as well appropriate 
 this residuum as he could appropriate the first use. The truth 
 is he only appropriates so much as he needs for the given 
 
 purpose."^ 
 
 § 180. Same.— Authorities Discussed.— Upon this impor- 
 tant question of the rights of subsequent appropriators of 
 water, the Supreme Court of Nevada in the case of Proctor 
 vs. Jennings, 2 holds: That a person appropriating a water right 
 in a stream already partly appropriated acquires a right to 
 the surplus or residuum he appropriates; and those who ac- 
 quired prior rights, whether above or below him on the stream, 
 can in no way change or exchange or extend their use of the 
 water to his prejudice, but are limited to the right enjoyed by 
 them when he secured his. Mr. Chief Justice Lewis, in ren- 
 dering the opinion of the Court, very comprehensively says: 
 "Priority of appropriation, where no other title exists, un- 
 
 1 In a recent case decided in the are satisfied, he, as a riparian pro- 
 Supreme Court of Oregon of Low prietor, is not entitled to have the 
 vs. Schaffer, 33 Pac. Rep. 678, it excess (low in the chaniu-1 of the 
 was held that after the needs of a stream, 
 prior approi)riator of the stream -2 6 Nev. 83.
 
 282 RIGHTS OF APPROrRIATORS. [§180,181 
 
 doubtedl}- gives the better right. And the rights of all sub- 
 sequent appropriators are subject to those of him who is first in 
 time. But others, coming on the stream subsequently, ma}' 
 appropriate and acquire a right to the surplus and residuum, 
 so that the rights of each successive person appropriating 
 water from the 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 appropriation. 
 So far is this rule carried, that those who were prior to him 
 can in no way change or extend their use to his prejudice, but 
 are limited to the rights enjo5'ed by them when he secured 
 his. Nor has any one the right to do an^^thing 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 onh' 
 acquires what have not been secured by those prior to him in 
 time. But what he does thus secure is as absolute and per- 
 fect and free from au}^ right of others to interfere with it as 
 the rights of those before him are secure from interference b_v 
 him." ^ Also where prior appropriators have secured a right 
 to the use of all the waters of a stream, it means as the stream 
 ordinarily flows, and subsequent appropriators may take all 
 the surplus in times of extraordinary high water or freshets, 
 without infringing upon any of the rights of the prior appro- 
 priator.^ 
 
 § 181. Successive Api>roj)riatioiis. — So long as the subse- 
 quent appropriators do not injure or impair the rights of the 
 prior, they may use as much of the water of the stream as 
 they choose, and may take it out at any point on the stream, 
 having due regard to the amount embraced in any prior appro- 
 priation. Thus, if a subsequent appropriator desires to use 
 the water of a certain stream for mechanical purposes, located 
 
 ISee also Opliir S. M. Co. vs. Ortman vs. Dixon, 13 Cal. 39; 
 
 Carpenter, 4 Nev. 534; Lobdell vs. McKinney vs. Smith; 21 Cal. 374; 
 
 Simpson, 2 Nev. 276; American N. C. & S. C. Co. vs. Kidd, 37 Cal. 
 
 Co. vs. Bradford, 27 Cal. 361. 313; Edgar vs. Stevenson, 70 Cal. 
 
 2 Brown vs. Smith, 10 Cal. 510; 286. 
 Smith vs. O'Hara, 43 Cal. 375;
 
 § 181]. KKillTS OF APl'ROPRIATOHS. 283 
 
 above the point of diversion by one liavinj^ the primary right 
 to the water for the purpose of irrigation, he may use it to 
 drive his mill or generate electricit}-, etc., provided he return 
 all the water after its use, undeteriorated in quality, to its 
 natural channel in the stream before it reaches the prior 
 appropriator's point of diversion; and further provided that 
 in his use of the water the rights of the prior appropriator 
 are in no manner impaired. But upon the other hand the 
 diversion of a water course, or a part of it, by either a subse- 
 quent appropriator or a riparian proprietor, for manufacturing 
 purposes, without returning it to the channel, is an unreason- 
 able exercise of the right to use the waters of the stream. ^ 
 This is so, for as has been stated before, the question is, has 
 the use and enjoyment of the water for tlie purpose for 7vhich 
 the first appropriator claims it, been impaired by the acts of the 
 subsequent appropriatorsf- If there has been no injur}^ done 
 to those who have a prior right to the waters, the result of 
 his act would at most be dammim absque ijijuria. What 
 diminution in quantity or what deterioration in quality will 
 injuriously affect the use of the water bj^ the prior appropria- 
 tor, is a question of fact for the jury to consider in connection 
 with all the circumstances of the case.^ However, where a 
 ditch has been excavated from the bed of a stream l^y a prior 
 appropriator, and water is being diverted through the same 
 for irrigation or any useful purpose, a subsequent appropria- 
 tor has no right to work a mining claim, or to use for any other 
 purpose the water located above the head of the first appro- 
 priator's ditch, in such manner as to mingle mud and sediment 
 with the water, or injure in any manner its value to the 
 owner of the ditch for the purpose for which he first claims 
 the use of the water.'* 
 
 1 Weiss vs. Oregon I. & S. Co., •' Phoenix Water Co. vs. I'lctcher, 
 1.3 Oreg. 496; II Pac. Rep. 255. 23 Cal. 483; Hill vs. Smith, 27 Cal. 
 
 2 Atchison vs. Peterson, 20 Wall. 476; Hill vs. Kinj^, 8 Cal. 336. 
 507; Union Water Co. vs. Crary, -i Hill vs. Smith, 27 Cal. 476; H 
 25 Cal. 504; Hill vs. Smith, 27 Cal. Saw'y. 286; Woodruff vs. North 
 476. See also Ante Section 175 lUoomiield C). M. Co.,8 Saw'y. 286; 
 and cases cited. 9 Saw'y. 111; iS I-'ch. Rep. 801.
 
 284 RIGHTS OF APPROPRIATORS. [§ 182 
 
 § 182. Subsequent Appropriation Before tlie Works of the 
 First Appropriator Are Completed. — While the prior claim- 
 ant's dam, canal or other works are in the process of construc- 
 tion or so much out of repair that they are not available for 
 the purpose designed , and until they are in a condition to ap- 
 propriate the water, the appropriation and use of the water by 
 others is not an injurj^ to him, and such use affords him no 
 relief either legal or equitable;^ provided, the prior claimant 
 has the use of so much water as is necessary' to preserve his 
 flume and other works from injury while in the process of 
 construction.^ 
 
 Upon this subject Mr. Chief Justice Sawyer, of the Supreme 
 Court of California, in the case of Nevada Count}' and Sacra- 
 mento Canal Co. vs. Kidd,^ said: " 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 commence work 
 with a view of appropriating the water to his use for mining 
 purposes, and 3'et, although laboring with all diligence, be 
 unable actually to use the water for any purpose 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 
 plaintiff's dam or canal, or the progress of his work, and 
 there would be no injury to the plaintiff's water right, and no 
 right of action to establish the water right or recover the 
 water. There is, in fact as yet, no present water right to be 
 affected. The party has merely acquired the possession and 
 site for his dam and canals, and a right by diligently pursuing 
 his object to acquire a future right to the possession of the water, 
 which, when acquired, shall, for the purpose of priority and re- 
 dressing any injuries that ma}' thereafter accrue, date by rela- 
 tion from the first act in selecting the location and making the 
 claim. But while pursuing his work and constructing his dam 
 and canal, with a view to the future appropriation of the water 
 and before any present water right capable of injury bydiver- 
 
 1 Bear River Co. vs. Boles, 24 Cal. 114; Union Water Co. vs. Crary, 25 
 359; Brown vs. Smith, 10 Cal. 508; Cal. 504. 
 
 N. C. & S. C. Co. vs. Kidd, 37 Cal. 2 Weaver vs. Conger, 10 Cal. 233; 
 
 282; Harvey vs. Chilton, 11 Cal. 6 Cal. 548. 
 
 •\37 Cal. 282, 309.
 
 § 182, 183]. RIGHTS OF APPROPRIATORS. 285 
 
 sioii or use of others has been acquired, his dam and canal 
 may be injured by trespassers or taken from him, and he be 
 obstructed in his proceedings to acquire a right to the 
 waters themselves, and he may have a cause of action on that 
 ground. But this is necessarily a different thing and a differ- 
 ent cause of action from an injury to his right to the water 
 itself by diverting it from him. The possession of the unfin- 
 ished dam and canal, or of the site, is not the possession and 
 enjoyment of the water, but merely the possession of the 
 means of acquiring, by the exercise of due diligence, a right 
 to the water in future. This is che doctrine of this Court, as 
 established by a long series of decisions. The right to the 
 water or water right, as it is commonly called, is only ac- 
 quired 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." 
 
 § 183. Distribution of Increase in Yoliune of Stream.— 
 Another important question arises as to the relations of those 
 who claim the water by appropriation when the volume of the 
 stream from whence they take is increased by natural or arti- 
 ficial means after the respective appropriations are made. 
 And the authorities upon the subject hold that if several par- 
 ties have acquired rights to the use of the water in a stream 
 and the volume of that stream is increased at a place higher 
 up than the heads of all their ditches from some natural cause 
 it belongs to the several appropriators respectively, according 
 to their priority of right — the one having made the prior ap- 
 propriation is first entitled to the increased flow to the extent 
 of his appropriation and use of the additional water. ^ So 
 also, if the water from an artificial source was turned into the 
 natural channel of the stream without any intention to recap- 
 ture it on the part of parties who formerly owned it. it also 
 h^conxes piiblici jtcr is, to all intents a part of the natural wa- 
 ters of the stream into which it emptied, and the rights of the 
 several appropriators remain relatively the same as before and 
 are not differently affected than they would have been had 
 the increase of water been due to some natural cause. ^ 
 
 1 Davis vs. Gale, 32 Cal. 26; Drew 2 ibid. vSce Post Chapter VIII. 
 vs. Hicks, 35 Pac. Kep. 563. ■Section 259.
 
 286 RIGHTS OF APPROPRIATORS. [§184 
 
 § 184. Doctrine of Relatioii :is Between Appropriators. — 
 
 As between parties who claim the waters of a stream by merely 
 its appropriation the doctrine of relation is often a very impor- 
 tant subject in determining the priority of the claimants. The 
 general doctrine upon this subject has been touched upon in 
 a former chapter/ but we will now discuss the principles of 
 the same that apply to the subject at hand. As was shown in 
 the sections cited, an appropriation does not become com- 
 pleted until the water is finally diverted and applied to some 
 beneficial use or purpose, whether it was the one for which it 
 was appropriated or not. If the first person attempting to ap- 
 propriate water from a stream properly gives a notice and fol- 
 lovv^s it up within a reasonable time by the work of construct- 
 ing the dam, ditch, reservoir, or other necessary instrumentali- 
 ties for the diversion and appropriation of the water to. the 
 purpose intended; and the work upon these means of diver- 
 sion is prosecuted with all due and reasonable diligence until 
 they are finally completed, and the water actually diverted 
 and applied, then the person will acquire an exclusive right to 
 the use of the water by the perfected appropriation, and his 
 right will relate back as against all subsequent appropriators to 
 the time of giving the notice.^ The law allows a reasonable 
 time for finishing the work and completing the appropriation.^ 
 If, however, on the other hand, there was unreasonable delay 
 between the time of the giving of notice and the commence- 
 ment of the work, and the work was not prosecuted to com- 
 pletion with due and reasonable diligence, or in other words, 
 if there was unreasonable delay in its prosecution and the 
 rights of a subsequent appropriator have in the meantime in- 
 terv^ened, based upon a strict compliance of the law and all 
 
 1 Ante Chapter VI. Sections i68, Mont. 535; Ophir Mining Co. vs. 
 
 [69, and authorities cited. Carpenter, 4 Nev. 534; Atchison 
 
 SKelly vs. Natoma Water Co., 6 vs. Peterson, i Mont. 561; Irwin 
 
 Cal. 105; Osgood vs. El Dorado W. vs. Strat, 18 Nev. 436; N. C. & S. 
 
 Co., 56 Cal. 571. C. Co. vs. Kidd, 37 Cal. 282; Sie- 
 
 ^Maeris vs. Bicknell, 7 Cal. 261; ber vs. Frink, 7 Colo. 148; Whee- 
 
 Kimball vs. Gearhart, 12 Cal. 27; ler vs. North Colo. Ir. Co., 10 
 
 King vs. Edwards, i Mont. 235; Colo. 582; Columbia M. Co. vs. 
 
 Osgood vs. W. & M. Co., 56 Cal. Holter, i Mont. 296. 
 511; Woolman vs. Garringer, i
 
 § 184, 185]. RIGHTS OF aituopriators. 287 
 
 due diligence, then the right of the first to use the water dates 
 only from the time when his appropriation was perfected, and 
 he becomes an appropriator subsequent and subject to the 
 rights of the part}- coming last — the position of the two being 
 reversed.^ 
 
 II. Approprisitiou as Aij;ainst a Congressional (iraiit of 
 the (government. 
 
 § 185. Appropriation as Against a Congressional Grant.— 
 In General. — A land grant as has been seen,- is the techni- 
 cal term used in the United States for a grant by Congress of 
 a portion of the public lands of the United States. The 
 grantee is, of course, the party receiving the land, and it may 
 be a person, corporation, State or Territory. As between 
 persons who claim the waters of streams or lakes by the ap- 
 propriation of said waters while they were upon the public 
 domain of the United States, and the subsequent grantee of 
 the Government of a tract of land through or adjoining which 
 the waters ran, the appropriator, being first in time, has the 
 exclusive right to use the waters to the extent of his appropri- 
 ation, and the grantee takes the land subject to such appropri- 
 
 1 Ibid. Opiiir S. M. Co. vs. Car- gating canal from a point on snch 
 
 penter, 4 Nev. 534; Irvine vs. river near the initial point of the 
 
 Strait, 18 Nev. 436; Keenej^ vs. proposed canal of the grantor, and 
 
 Carillo, 2 N. M. 480; Meggerle running some distance parallel 
 
 vs. Ashe, 33 Cal. 74; Smith vs. with the latter, but finally diverg- 
 
 Athern, 34 Cal. 504; Daniels vs. ing several miles therefrom, the 
 
 Landsdale, 43 Cal. 41; Landsdale grantee acquired no rights by such 
 
 vs. Daniels, 100 U. S. 118. conveyance, and its rights as an 
 
 As to what is due and reason- appropriator of the waters of the 
 
 able diligence see Chapter VI. river do not relate back to the 
 
 Sections 160, 161. time when the grantor filed its 
 
 See Part Second for Statutory statement and plat. Colo. Land 
 
 Ivnactments upon the subject of & Water Co. vs. The Rocky Ford 
 
 Relation. Canal, Reservoir, Land, Loan and 
 
 Relation. Wliere a canal com- Trust Co. (Colo. App.) 34 Pac. Rep. 
 
 pany at the end of two years sold 580. 
 
 and conveyed its rights to another 2 Ante Chapter V, Sections 137- 
 
 company which had, prior to such 139. 
 conveyance, constructed an irri-
 
 288 RIGHTS OF APPROPRIATOKS. [§ 185 
 
 ations.^ This principle is based upon the general policy of 
 the Government to protect all those who by its license or for- 
 bearance have appropriated the waters of streams or lakes 
 upon the public domain. When water first began to be appro- 
 priated from the inland lakes and streams flowing in the arid 
 region by persons for the purpose of mining, irrigation and 
 other useful purposes, the Government, as the proprietor of 
 the lands over which the streams flowed, might have then put 
 a stop to all such appropriations, and thereby forever put an 
 end to this troublesome question. But the country at that 
 time was nothing but a vast desert, covered only by sage 
 brush and grease wood, and inhabited by savages and wild 
 animals. The streams were comparativel}^ small, and 
 washed but a very limited portion of the country, and what 
 water did flow in them flowed on uninterruptedly, and was 
 wasted in the ocean. I^and in this country, without water, 
 was absolutely worthless. The Government could not give 
 it away. This is illustrated by the thousands of acres that 
 are to-day above the reach of water. These lands are to all 
 purposes, as far as now known, except where they contain 
 minerals, absolutely worthless, although the quality of the 
 soil itself may be quite as good as the soil that is within the 
 reach of water, and that is now under cultivation. No one 
 will take them as a gift, much less settle upon them. It is 
 easy enough to get the land, but where is the water to come 
 from to make the land productive and valuable? Gold was 
 discovered in California, but the claims could not be worked 
 without water. So the miners conducted the water at a vast 
 expenditure of money in many cases, to the place where they 
 were operating their mining claims, and without owning a 
 '''ingle inch of land upon the bank of the stream from which 
 they took the water. It was not too late then to interfere, and 
 the government might have denied this right to the miners, 
 and treated it as non-existing, as well as it could have denied 
 
 1 Broder vs. Natoma Water Co., Thorp vs. Freed; i Mont. 651; Gold 
 
 loi U. S. 273; 50 Cal. 621; Basey Hill Mining Co. vs. Ish, 5 Oregon 
 
 vs. Gallagher, 20 Wall. 670; Atchi- 104; Sparrow vs. Strong, 3 Wall, 
 
 son vs. Peterson, 20 Wall. 507; 97, 777; Barnes vs. Sabron, 10 Nev, 
 
 Jennison vs. Kirk, 98 U. S. 453; 217.
 
 § 185, 186]. RIGHTS OF APPROPRIATORS. 289 
 
 the right to those who appropriated the water for the purpose 
 of agriculture after the gold excitement had died out. What 
 would have been the result? The country would have remained 
 in its primitive condition, except, perhaps, small strips of land 
 bordering upon some of its streams. The mines would have 
 remained unworked. And the Government, through its sel- 
 fishness, would still be the owner of iiearly all of its original 
 public domain, intact and uninhabited. 
 
 §186. Same— Coiltiliued, — But the policy of the Govern- 
 ment has been not so much to hold the title to the public 
 domain intact in itself as it has been to have this western 
 country settled up. And therefore instead of pursuing the 
 selfish policy mentioned above and prohibiting the appropria- 
 tion of water, it has offered many inducements to those who 
 in good faith settle upon or improve any portion of the public 
 lands. ^ And in the first place the Government remained pas- 
 sive and permitted water to be appropriated from its natural 
 courses upon the public domain, and by costly artificial works 
 to be conducted for perhaps miles over mountains and ravines, 
 to be used for mining operations, irrigation and other useful 
 purposes. So fully did the Government recognize these 
 rights of the appropriators, and tacitly encourage them, that 
 it has been held by the Supreme Court of the United States 
 that even wdthout any act of legislation by Congress the 
 appropriators had secured rights to the use of the water which 
 the Government had by its conduct recognized and encour- 
 aged and was bound to protect. ^ However, the Government 
 did not rest there, but on the contrary, instead of trying 
 to repudiate these claims, Congress formerly acknowledged 
 the rights acquired in waters, and by the Statute of July 26th, 
 1866,^ made the national ownership of the public domain over, 
 or adjoining which streams of water flowed, subject to the 
 
 1 Broder vs. Natoma Water Co., 2 Broder vs. Natoma Water Co., 
 
 loi U. S. 274; 50 Cal. 621; Winona, loi U. S. 274. 
 
 etc., Ry. Co. vs. Barney, 113 U. S. -^ 14 Stat, at h. 251, Sec. 9. See 
 
 618; »St. Joseph, etc., Ry. Co. vs. Ante vSection 113. 
 Baldwin, 103 U. S. 426; Ikiriiliani 
 vs. Starkey, 41 Kan. 604.
 
 290 RIGHTS OF APPROPRIATORS. [§ 186, 187 
 
 rights of appropriators of the water of such streams. Thus 
 wherever the water was appropriated the public domain was 
 burdened to that extent, and the same burden would on 
 general principles accompany the title if the lands were trans- 
 ferred to any subsequent or private owners; and so whoever 
 succeeded to the title of the United States through any mode 
 of acquisition or conveyance whatsoever, if waters had prior 
 to that transfer of title been appropriated from the stream 
 running through or adjoining such lands, the grantee would 
 acquire and take the land subject to the same servitude which 
 before existed in favor of the prior appropriator. And also 
 by the Act of July 9th, 1870, which Act is amendatory to the 
 Act of 1866, Congress still strengthened the position of the 
 appropriator of waters by providing " that all patents granted, 
 or pre-emptions or homesteads allowed, shall be subject to 
 any vested and accrued water rights," etc. And in all Con- 
 gressional grants, whereby large tracts of land have been 
 granted to railroad companies, there has usually been a gen- 
 eral clause reserving all vested rights of appropriators or set- 
 tlers.^ But whether a reservation clause of this nature is 
 embodied in the grant itself or not, it has become the settled 
 law under the decisions of the Courts that where this right of 
 appropriation has once vested a subsequent grantee of the 
 Government takes the land subject to this right. ^ 
 
 § 187. Decisions on Subject.— In that great decision of the 
 Supreme Court of the United States, of Broder vs. Natoma 
 Water and Mining Company,'^ the Court held, or at least inti- 
 mated b}^ the course of its reasoning, that the subsequent 
 grantee from the Government would take subject to the 
 rights of a prior appropriator, even in the absence of the 
 declarations contained in the Acts of 1866 and 1870. The 
 facts in that case as found in the trial court were that the 
 defendant, long prior to the passage of the Act of 1866 upon 
 
 1 See Act of 1864, 13 Stat, at loi U. S. 274; Barnes vs. Sabron, 
 
 L. 356, Sec. 4. See Ante Sec- 10 Nev. 217; Osgood vs. Edwards, 
 
 tions 137, 138. See Act of July etc., Co. 56 Cal. 571. 
 
 9th, 1870; Ante Section 116. ^loi U. S. 274. 
 2 Broder vs. Natoma Water Co.,
 
 § 187] RIGHTS OF APPROPRIATORS. 291 
 
 lands which were then public, constructed the ditch com- 
 plaiued of, for the purpose of supplying water for miners and 
 others, and continued to control and hold possession of the 
 ditch from the time of its completion in 1853, until the com- 
 mencement of the action; that the ditch cost $200,000; also 
 this entr)', possession and ownership were taken, acquired and 
 held according to the local customs and laws of California, and 
 under the supposed license of the United States. It was also 
 found that the plaintiff had a title to the land through a por- 
 tion of which the ditch ran, and a part of which title was de- 
 rived from what is now known as the Central Pacific Railroad 
 Companj^, that company having been granted the land by the 
 Pacific Railroad Bills of 1863 and 1864; the balance of the 
 plaintiff's title was by pre-emption claims, the declaratory 
 statements of which were filed on Aug. 6th and Sept. 14th, 
 1866. The plaintiff asked to have the canal declared a nuis- 
 ance and abated, and for $12,000 damages. Mr. Justice Miller, 
 in rendering the opinion of the Court, sums up the principles 
 stated above as follows: " As to the canal of the defendants, 
 so far as it ran through the land of the United States, at the 
 date of this Act it was an unequivocal grant of the right of 
 way, if it was no more. As the plaintiff's right commenced 
 subsequent to this statute, as to the lands patented to him and 
 his brother, he took the title subject to this right of way and 
 cannot now disturb it. 
 
 In reference to the lands of plaintiff held under convey- 
 ance from the Pacific Railroad Company, it might be a ques- 
 tion of some difficulty whether the right was so far a vested 
 right in that company before the passage of this Act of 1866, 
 that the latter would be ineffectual as regards these lands. 
 But we do not think that defeyidants are under the necessity of 
 relying on that statute. 
 
 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 u.sed in 
 mining operations and 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, l)y
 
 292 RIGHTS OF APPROPRIATORS. [§ 187 
 
 its conduct, recognized and encouraged, and was bound to 
 protect before the passage of the Act of 1866, and that the 
 section of the Act which we have quoted was a volzmtary 
 recognition of a pre-existing right of possession, constituting 
 a valid claim to its continued use, than the establishment 
 of a new one. This subject has so recently received our 
 attention, and the grounds on which this construction rests 
 are so well set forth in the following cases that thej^ will 
 be relied on without further argument : Atchison vs. Peterson, 
 20 Wall. 507; Basey vs. Gallagher, 20 Wall. 670: Forbes vs. 
 Gracej^ 94 U. S. 764; Jennison vs. Kirk, 8 Otto. 453-462. 
 
 "We turn now to the Act of 1864, 13 Stat, at L. 356, which 
 makes the final grant to the Pacific Railroad Companies, and 
 the acceptance of which by the companies bound them to its 
 terms, and we find in section 4, which enlarges the grant of 
 lands made by the Act of 1862, this clause of reservation from 
 the general terms of the grant: 'Any lands granted by this 
 Act, or the Act to which this is an amendment, shall not 
 defeat or impair any pre-emption, homestead, swamp land or 
 other claim nor include any Government reservations or min- 
 eral lands, or the improvement of an}^ bona fide settler or any 
 lands returned or denominated as mineral lands, and the tim- 
 ber necessary to support his said improvements as a miner or 
 agriculturist.' 
 
 " We have had occasion to construe a very common clause of 
 reservation in grants to other railroad companies, and in aid 
 of other works of internal improvements, and in all of them 
 we have done so in the light of the general principle that 
 Congress, in the act of making these donations, could not be 
 supposed to exercise its liberality at the expense of pre-exist- 
 ing rights, which, though imperfect, were still meritorious, 
 and had just claims to legislative protection. See Wolcott vs. 
 Des Moines Co., 5 Wall. 681; Williams vs. Baker, 17 Wall. 
 144; R. R. Co. vs. U. S., 92 U. S. 733. 
 
 " In construing the grant to the Pacific Railroad Companies 
 this principle is eminently applicable. The grant of land 
 was vastly larger than any previous grant. The land was sur- 
 rounded by circumstances much more varied than in any 
 previous grant, and the number and varied character of the
 
 § 187, 188] RIGHTS OF APPROPRIATORS. 293 
 
 interests which might be affected by the vast extent of the 
 donation were beyond any with which Congress had previously 
 dealt. 
 
 " Hence we have in the clause of reservation a much more 
 liberal and extended protection of pre-existing rights than in 
 reserv-ation clauses which has become a formula in previous 
 grants. 
 
 ' ' Not only are prior reser%'ations made by the Government, 
 and rights of pre-emption excepted, but the improvements of 
 bona fide settlers, land returned or denominated mineral lands, 
 and the timbers necessary to support the miners improvements, 
 and any other claims are unaffected by the grant. Of course 
 this means any honest claim evidenced by improvements or 
 other acts of possession. 
 
 "We cannot doubt that the claim of the defendants, of 
 which they had been in possession for twelve years when the 
 Act was passed, on which they had expended $200,000, which 
 was of great utility, nay, necessity to a large agricultural and 
 mining interest, was of the class which this section declared 
 should not be defeated by the grant which Congress was then 
 making." ^ 
 
 § 188. Converse of Docti:iiie. — The United States, as 
 appropriator of the public lands, has the same rights and 
 property in the streams flowing through those lands that 
 would be possessed by any other riparian proprietor. In the 
 absence of actual vested rights in waters or legislation annex- 
 ing conditions or limitations to grants the grantee receives 
 not only the fee of the soil, but also, as an incident thereto, 
 the benefit of all natural streams which flow through them. ^ 
 The Government, before any legislation limiting its title, has 
 a perfect title to the public land and an absolute and unqualified 
 
 1 See also Atchison vs. Peterson, Baker, 17 Wall. 144; Railroad Co. 
 
 20 Wall. 507; Jetinison vs. Kirk, 98 vs. United States, 92 U. S. 733. 
 
 U. S. 453; Basey vs. Gallagher, 20 • 2 Union Mill Co. vs. Ferris, 2 
 
 Wall. 670; Forbes vs. Gracey, 94 Sawyer 176; Los Anj,'eles vs. Bald- 
 
 U. S. 762; Walcott vs. Des Moines win, 53 Cal. 469; Pope vs. Kiinnan, 
 
 Co., 5 Wall. 6S1; Williams vs. 54 Cal. 3; Ferrca vs. Kiiip", 2S t^al. 
 
 340.
 
 294 RIGHTS OF APPROPRIATORS. [§188,189 
 
 right of disposal, it can pass to its grantee the fee to the land 
 without limitation, and not only include the soil, but also the 
 streams which flow over the land as an incident thereto. 
 The grantee then becomes a riparian owner and, except in 
 States where the common law theories of riparian rights have 
 been abolished, can insist that the stream continue to flow as 
 it was wont, without material alteration in quality or quantity. 
 Where there has been no prior appropriation of waters or 
 other vested rights in the same upon a tract of land granted 
 to a railway company the company, as grantee, takes the fee 
 to the land without any limitations or burden as regards the 
 water which naturally flows over the same. In this case the 
 company may become the riparian owner of all the lands 
 that border upon the streams flowing through them, and all 
 subsequent appropriations of the waters of those streams 
 must be made subject to its rights as such riparian proprietor, 
 according to the laws of the State or Territory where such 
 rights attach. Thus in this respect also we find that the 
 principle of priority gives a better right. If the railroad 
 company secures its grant before any appropriations have been 
 made of the waters that flow through the land granted, then 
 all subsequent appropriations must be made subject to the 
 rights of the company as riparian owners. But upon the 
 other hand, if appropriations had been made of the waters 
 before the land was granted to the company by Act of Con- 
 gress, then in that case the company takes the land subject 
 to all vested rights then existing; and all future appropriations 
 made after the Act granting the land must be made, first, 
 subject to the prior appropriator's rights; and second, subject 
 to the rights of the company as the riparian proprietors.^ 
 
 § 189. Tlie Doctrine of llelatiou as Applied to Cougres- 
 sioual Grants. — We have seen that an appropriation of water, 
 if followed up step by step with all due and reasonable dili- 
 gence until the water is diverted and actuall}^ applied to some 
 
 iBroder vs. Natoma Water Co., R. Co. vs. Barney, 113 U. S. 618; 
 loi U. S. 274; Atchison vs. Peter- St. Joseph, etc., Ry. Co. vs. Bald- 
 son, 20 Wall. 507; Basey vs. Gal. win, 103 U. S. 426.. 
 lagher, 20 Wall. 670; Winona, etc.,
 
 §189J RIGHTS OF APPROPRIATORS. 295 
 
 beneficial use or purpose relates back to the first act taken for 
 the appropriation of the same. Now the question for deter- 
 mination is: When does a grant made to a railroad company 
 b)'- an Act of Congress take effect so as to cut off the right of 
 appropriation of subsequent parties in those States or Terri- 
 tories where the company can claim the water by virtue of the 
 common law of riparian rights ? The grants to railroad com- 
 panies being usually vipraesenii, import the transfer, subject 
 to the limitations of a present interest in the lands designated. 
 So, if rights of appropriators of water, or other rights of set- 
 tlers, have vested prior to the date of the Act granting the 
 lands there is no question but that those rights will be pro- 
 tected, notwithstanding the grant of the tract, including the 
 streams from which the water was taken, to the company, and 
 the company' in that case takes the title to the lands subject 
 to those vested rights, whatever they may be.^ But another 
 question arises in this connection. Usually a period of time 
 elapses between the date of the Act of Congress granting 
 the land to the compan3^ and the time when the route of 
 the road is established. Now, during this period of time, 
 can claims to water from streams flowing through the tract 
 granted be acquired by private parties subsequent to the 
 Act ? The authorities hold upon this point that they can 
 be so acquired up to the time when the route to the road is 
 "definitely fixed." The inquiry then arises, when is the 
 route of the road to be considered as " definitely fixed " so 
 that the grant attaches to the'land and cuts off all subsequent 
 claimants? The route is "definitely fixed," within the 
 meaning of the Act of Congress when the company files with 
 the Secretary of the Interior a map of its lines, as the route 
 has thus ceased to be subject of change at the volition of the 
 company. And up to the time when the company files with 
 the Secretary a map of its route, thus identifying the same, 
 and the lands included in the grant, claims to water by ap- 
 propriation relating back to the first or preliminary act taken 
 to secure the same, are not affected by the grant. ^ 
 
 1 Ibid. vs. U. P. Ry. Co., 30 Fed. Rep. 
 
 2Broder vs. Natonia Wakr Co., 660; Missouri, etc., Ry. Co. vs. 
 
 loi U. S. 274; 50 Cal. 621; C.lidden Noyes, 25 K;iii. ;,]<>; 5 Am. & JCug.
 
 296 RIGHTS OF APPROPRIATORS. [§ 189, 190 
 
 Upon this point Mr. Justice Field, in rendering the opinion 
 of the Supreme Court of the United States in the case of Van 
 Wyck vs. Knevals,! said as follows: "The route must be 
 considered as ' definitely fixed ' when it has ceased to be the 
 subject of change at the volition of the company. Until the 
 map is filed with the Secretary of the Interior the company is 
 at liberty to adopt such a route as it may deem best after an 
 examination of the ground has disclosed the feasibility and ad- 
 vantages of different lines. But when a route is adopted by 
 the company and a map designating it is filed with the Secre- 
 tary of the Interior and accepted by that officer the route is 
 established; it is in the language of the Act, ' definitely fixed,' 
 and cannot be the subject of future change so as to affect the 
 grant, except upon legislative consent. No further action is 
 required of the company to fix the route. It then becomes the 
 duty of the Secretary to withdraw the lands granted from mar- 
 ket. But if he should neglect this duty the neglect would not 
 impair the rights of the company, however prejudicial it might 
 prove to others." 
 
 The Supreme Court, in the case of St. Paul M. & M- 
 Ry. Co. vs. Phelps,^ said: "Again it is the settled law 
 that railroad grants, such as the one under consideration, are 
 grants in praesenti, and take effect upon the sections of the land 
 when the road is definitely located by relation as of the date of 
 the grant." 
 
 III. Controversies between Coniiictiug Onints. 
 
 § 190. Conflicting Grants. — As we have seen, a railroad 
 compan}^ as grantee of the Government, in those jurisdictions 
 which recognize the common law rights in water, upon tak- 
 ing the title to the lands granted becomes the riparian pro- 
 prietor of all such lands as border upon streams flowing through 
 those lands, provided that their waters have not been appro- 
 priated prior to the time that the route of the road was ' ' defi- 
 nitely fixed." 
 
 Ry. Cases, 440; Atchison, etc., Ry. Knevals, 106 U. S. 360; 10 Am. & 
 Co. vs. Pracht, 30 Kan. 66; 12 Am. Eng. Ry. Cas. 664. 
 &Eng. Cases, 261; Van Wyck vs. l 106 U. vS. 660. 
 
 2 137 u. S. 528.
 
 §190, 191J RIGHTS OF APPROPRIATORS. 297 
 
 Now, as to controversies between different parties claiming 
 two Congressional grants of lands to aid in the building of 
 railroads or for any other purpose, the title to the lands 
 granted relates, after the road is definitely located according 
 to law, to the date of the grant; and in cases where the lands 
 granted, as between different roads, conflict or encroach upon 
 each other priorit}' of the date of the Act of Congress and 
 not priority of the location of the line ot the road gives 
 priority of title to the land; and of course, as the road only 
 takes the waters as riparian proprietor, the same principle of 
 relation also applies to the rights in waters flowing over or 
 adjoining those lands. ^ When, however, the Acts of Congress 
 in such cases are of the same date, or when grants are made to 
 different roads by the same statute priorit}- of location gives no 
 priority of right to the lands and waters granted; but where 
 the limits of the grants which are finally settled by the roads 
 being definitely located conflict by crossing or lapping the 
 railroad companies building the roads under those grants take 
 the lands and water as an incident thereto within the conflict- 
 ing limits of the location in equal undivided moieties, without 
 regard to priority of location of the line of the road, or pri- 
 ority of construction, provided that both companies complete 
 their roads within the time limited by law.^ 
 
 IV. Appropriation as against Conftictini; Claims of Settlers 
 
 on Lands. 
 
 § 191. Riparian Rights in Arid Region. — In the arid region 
 as well as in other parts of the country the common law 
 principles of riparian rights still exist to a certain extent in 
 many of the States and Territories. The United States hav- 
 ing an absolute and perfect title to and the unqualified right 
 of property in the public domain, and a perfect right of dis- 
 posal; and as running water is naturally an incident to, or a 
 part of the soil over or adjoining which it flows, a patent 
 
 1st. Paul & vS. C. Ry. Co. vs. U. S. 360; (irinnell vs. Ry. Co., 103 
 
 Winona & S. P. Ry. Co. 112 U. S. U. S. 739; St. Paul and Pac. Ry. 
 
 320; R. R. Co. vs. Ry. Co., 97 U. S. Co. vs. N. Pac. Ry. Co., 139 U. S. i. 
 
 501; Van Wicks vs. Knevals, 106 -Ibid.
 
 298 RIGHTS OF APPROPRIATORS] [§ 191, 192 
 
 to a certain tract of land bordering upon or divided by a nat- 
 ural stream, before any claim to the waters of which is made 
 by prior appropriators, carries not only the soil but the stream 
 flowing through or adjoining it. And in those States and 
 Territories where the common law rights are still in existence 
 anj^ subsequent appropriations of the waters of the streams 
 made by another person in pursuance of local customs or laws 
 recognized by the legislation of the State and of Congress, 
 must be subject to the prior title of the patentee and the 
 common law riparian rights belonging to him.' The principle, 
 as can be readil}^ seen, is the converse of the doctrine of prior 
 appropriation as set forth in the previous sections of this 
 chapter, where it is shown that the prior appropriation of 
 water wholly upon the public lands of the United States is 
 good as against all subsequent comers. In these cases the 
 prior appropriation gf land over or adjoining which a stream 
 flows carries with it a paramount right to the grantee as 
 riparian owner of those waters. Thus priority in controver- 
 sies between patentees of the Government against those 
 claiming the water by mere appropriation is also the basis of 
 the superior right. ^ 
 
 § 192. Goyernmeiit Patent in the Absence of Statute. — 
 
 Prior to the 26th day of July, 1866, there was no legislation 
 by Congress which tended in anj' way to limit the rights of 
 the patentee of the Government, or to recognize the rights 
 acquired by the appropriator of waters of the streams upon 
 the public domain and no authorit}^ for the same except 
 the local customs and laws of the respective States and 
 Territories where the appropriation was sought to be made. 
 Therefore the laws governing all controversies between 
 those who claim the waters of a stream upon the public 
 domain by the mere appropriation of the same for some use- 
 ful purpose, and those who claim the waters of the same 
 
 1 Union Mill & M. , Co. vs. Ferris, Leigh Co. vs. Independent, etc, 
 
 2 Sawyer, 176; Union Mill & M. Ditch Co., S Cal. 323; Sturr vs. 
 
 Co. vs. Dangberg, 2 Sawyer, 450; Beck; 133 U. vS. 541. 
 Vansickle vs. Haines, 7 Nev. 249; - Sturr vs. Beck, 133 U. S. 541. 
 
 Crandall vs. Woods, S Cal. 136;
 
 §192] RIGHTS OF APPROPRIATORS. 299 
 
 Stream as riparian owners by virtue of a patent from the 
 Government to the lands adjoining the stream, have been 
 divided by the authorities into two periods — those laws in 
 force governing the transfer of lands by the Government 
 prior to the Act of Congress of July 26th, 1866, and those in 
 force relative to the same subject subsequent to that date. 
 
 In discussing the laws governing the first period we will 
 say, in addition to the above, that if a person secures a title 
 to Government land, adjoining or over which a stream natur- 
 ally flows, in those States and Territories which recognize 
 and protect the common law riparian rights, before there has 
 been any appropriation of the waters of the same stream, 
 there is no question as to his paramount right as riparian pro- 
 prietor to the use of the water of the stream.^ But there is 
 another question for consideration. Suppose, for instance, 
 that A as a first appropriator diverted the waters of a certain 
 stream upon the public domain, and took the first step neces- 
 sary for his appropriation upon the first day of Juh', 1855, and 
 that he should continue to divert, possess and use the water of 
 the stream continuously for the purpose of irrigation until inter- 
 rupted thereafterwards. * Now,' there is no question as to the 
 paramount title of A by virtue of his priority as against all 
 subsequent appropriators of tiie water of the same stream, 
 or as to his rights beginning b}^ relation upon the first day of 
 July, 1855 — the date of the first act toward the accomplish- 
 ment of his appropriation. But again let us suppose that B 
 having made an entry as pre-emptor upon a certain tract of 
 Government land bordering upon the same stream, on Jan- 
 uary loth, i860, below the point from which A diverts the 
 water and B's right to the land and the incidents thereto 
 become vested and perfect as against all subsequent parties 
 in 1865 — before the first Act of Congress — by securing his 
 patent therefor.^ And suppose that A in diverting and using 
 the water materially diminishes the volume of the stream, to 
 the injury of the riparian rights of B. Now the question in 
 the premises is, has A a right to the use of the water of the 
 
 1 See Pari S e c o 11 d, Ri])arian 2 At just, what ])oiiit the rights of 
 
 Rights ill California, Nc-va<la and a patentee vest, will ho discussed 
 Oregon. in sections 208-220.
 
 300 RIGHTS OF APPROPRIATORS. [§ 192, 193 
 
 stream b}- virtue of liis prior appropriation, or can B insist, 
 as a riparian proprietor, although acquiring a title to his land 
 subsequent to the time when A's right had vested, that the 
 water continue to flow in its natural channel by virtue of his 
 rights as such subsequent riparian proprietor. The authori- 
 ties are somewhat divided upon this subject. Some holding 
 that if the water of the stream on the public domain is appro- 
 priated by a person having no title to the land adjoining the 
 stream, and the land is afterward patented to other persons 
 whose riparian rights are interfered with by the diversion, the 
 patentee succeeded before any legislation b}^ Congress limit- 
 ing the effect of the patent to the fee of the soil and as an 
 incident thereto to all the common law rights as riparian pro- 
 prietor of all natural streams which flow through or adjoin 
 his land.^ 
 
 This ruling of course would cut off all the rights that A 
 may have acquired in and to the stream, and hold him simply 
 as a trespasser; and undoubtedly in many cases this has worked 
 great injury to those who had actuallj^ appropriated at great 
 expense the waters of streams while the same were upon the 
 public domain. But this ruling for a long time was, and 
 still is, by some, deemed to be the law upon the subject, 
 inequitable as it undoubtedly is, as we shall endeavor to show 
 in our subsequent discussion of this exceedingly important 
 subject. 
 
 § 193. The Principle Upon Which tlie Proposition Was 
 Kased. — The principle upon w^hich the proposition above 
 set forth is deemed to be based goes back to the very foun- 
 dation principles of the Government title to public lands. 
 As we have seen in a former chapter, the Government 
 has a perfect right to acquire lands, ^ and when lands have 
 been so acquired it is the absolute and unqualified proprietor 
 of all the public domain to which the Indian title has been 
 
 lUnion M. &. M. Co. vs. Ferris, 126; Holmes vs. Jennison, 14 Pet. 
 
 2 Sawyer, 176; Vansickle vs. 540; Holden vs. Joy, 17 Wall. 211; 
 
 Haines, 7 Nev. 249. i Kent. Com. 165, 166; Story on 
 
 2See Chapter \'., Sections 125, Constitution, Section 150S.
 
 §193] 
 
 RIGHTS OF APPROPRIATORS. 
 
 301 
 
 extinguished.^ Also in Chapter III. we have discussed at con- 
 siderable length, the proposition that under common law 
 theories running water is primarily an incident to the owner- 
 ship of the soil over which it naturally flows. In other words, 
 it was deemed by the authorities referred to that the owner of 
 the fee of land had a perfect title to and control of the water 
 naturally flowing over it to the same extent, and in the same 
 sense as he has to and of the soil itself, if he took the title to 
 the land without any statutory limitations.' 
 
 There is no question but that the United States had a per- 
 fect title to the public domain before any steps were taken 
 limiting this title; it also had as an incident to the soil thereon 
 a perfect title to the waters of streams and lakes upon that 
 public domain.^ 
 
 The Government, as proprietor of the public lands through 
 which streams flow, has primarily the same property and right 
 in the stream that any other riparian proprietor would have. 
 Upon these points there can be no question; but we also find 
 
 1 Vansickle vs. Haines, 7 Nev. 
 249; Union M. & M. Co. vs. Ferris, 
 2 Sawyer, 176; Irvine vs. Marshall, 
 20 How. 561. 
 
 2 I Co. Litt. 4a; Cooley's Black. 
 Com., Book I, Chap. 2, and note 4; 
 Angell on Water Courses, Sec. 5, 
 note 3, vSecs. 10, 12, 132; 2 Washl). 
 on R. P., Chapter i. Sees. 3, 40, 
 Washburn on Easements, 270, 
 274, 281; I Bright's Digest, 500, 
 Sec. 232; Ante Chapter III.; Elliott 
 vs. Fitchburg Ry. Co., 10 Cush. 
 193; Mason vs. Hill, 3 B. & Ad. 
 305; 5 B. & Ad. i; Sampson vs. 
 Hoddinott, i C. B. N. S. 611; 
 Embrey vs. Owen, 6 Exch. 553; 
 Phear on Rights of Water, 14 and 
 following; Wright vs. Howard, i 
 Sim. &.Stew. 190; Davis vs. Fuller, 
 12 Vermont, 178; Snow vs. Par- 
 sons, 2 Williams, 459; Tillotson vs. 
 Smith, 32 N. H. 90; Gerrish vs. 
 Newmarket Co., 10 Far. 478; 
 
 Blanchard vs. Baker, S Maine, 253; 
 Ingraham vs. Hutchinson, 2 Conn. 
 584; Parker vs. Hotchkiss, 25 
 Conn. 321; Wadsworth vs. Tillot- 
 son, 15 Conn. 366; King vs. Tif- 
 fany, 4 Conn. 162; Tyler vs. Wilk- 
 inson, 4 Mason, 397; Webb vs. 
 Portland M. Co., 3 Sum. 189; 
 Campbell vs. Smith, 3 Hal. 140; 
 Pugh vs. Wheeler, 2 Dev, & Bat. 
 50; Canal Conns, vs. People, 17 
 Wend. 570; 5 Wend. 423; Rogers 
 vs. Jones, i Wend. 237; Ex-parte 
 Jennings, 6 Cow. 518; Gardner vs. 
 Trustees, 2 Johns Ch. 163; Corning 
 vs. Troy Iron Wks. 34 Barb. 486; 
 4 N. Y. 204; Arnold vs. Foote, 12 
 Wend. 330; Heath vs. Williams, 
 25 Maine, 209; 3 Kent. Com. 439, 
 and notes; Gould on Waters. Sees. 
 230 and 240; Pomeroy on Riparian 
 Rights, Sec. 36. 
 3 Ibid.
 
 302 
 
 RIGHTS OF APPROPRIATORP. [§ 193, 194 
 
 that the Government has a right to dispose of its lands or any 
 of the incidents thereto to any person or in any manner 
 it may see fit. And we shall endeavor to show that the Gov- 
 ernment had already disposed of such waters flowing over the 
 public domain as had been actually appropriated for some 
 beneficial use or purpose prior to the first Act of Congress 
 upon the subject of July 26th, 1866. 
 
 § 194. Same. — Continued. — In our previous discussion we 
 have seen that neither a State nor Territorial legislature can 
 in any manner modify or affect the right which the Govern- 
 ment has to the primary disposal of the public lands. ^ 
 
 1 See Ante Chapter V., Section 
 134, and authorities cited. 
 
 Upon this very important sub- 
 ject the Siipreme Court of the 
 United States, speaking through 
 Mr. Justice Daniel, in the opinion 
 of the Court of Irvine vs. Marshall, 
 20 How. 558, said: " It cannot be 
 denied that all the lands in the 
 territory not appropriated by com- 
 petent authority before they were 
 acquired, are in the first instance 
 the exclusive property of the 
 United States, to be disposed of to 
 such persons at such times and in 
 such modes and by such titles as 
 the Government may deem most 
 advantageous to the public fisc, 
 or in other respects most politic. 
 This right has been uniformly re- 
 served by solemn compacts upon 
 the admission of new States, and 
 has heretofore been recognized 
 and scrupulouslj' respected by 
 sovereign States within which 
 large portions of the public lands 
 have been comprised, and within 
 which much of those lands is still 
 
 remaining. 
 
 And the 
 
 Court also cited the case of Wil- 
 cox vs. Jackson, reported in 13 
 
 Pet. 4g8, which case presented an 
 instance of an attempt to control 
 by the authority of the laws of the 
 State of Illinois, the effect and 
 operation of a right or title, de- 
 rivable from the Government, to 
 a portion of the public lands, and 
 where the Supreme Court em- 
 phatically declared the law upon 
 the subject of jurisdiction to be: 
 'We hold the true principle to be 
 that whenever the question in any 
 Court, vState or Federal, is whether 
 a title to land which was once the 
 property of the United vStates has 
 passed, the question must be re- 
 solved by the laws of the United 
 vStates, but whenever, according 
 to those laws, the title shall have 
 passed, then the property, like all 
 other property in the State, is 
 subject to State legislation so far 
 as that legislation is consistent 
 with the admission that the title 
 passed and vested according to 
 the laws of the United States.' " 
 
 See also on this subject Jourdan 
 vs. Barrett, 4 How. 185; Bognell 
 vs. Broderick, 13 Pet. 450; U. S. 
 vs. Hughes, II How. 568; U. S. vs. 
 Gratiot, 14 Pet. 526.
 
 § 194, 195] RIGHTS OF APPROPRIATORS. 303 
 
 It is beyond question that the United States Supreme 
 Court cases cited above give the law upon the subject. 
 But it is argued by those who hold that, "If the water 
 of a stream on the public land is appropriated, and the land is 
 afterwards patented, the patentee succeeds in the absence of 
 statute to the right of the Government, unincumbered bj- the 
 previous appropriation; " that the statute of limitation did 
 not run against the United States, so that no use of water 
 while the title to the land is in the Government could avail a 
 person as a foundation of title by prescription, or defeat or 
 modify the title convej-ed to the grantee by his patent from the 
 Government.^ Hence, it was held by this class of authorities, 
 as a conclusion from all the above, that the Government 
 of the United States in the absence of statutory limitations 
 conveyed to its grantees not only the land through which 
 a stream naturall}^ flows but also the stream itself. In other 
 words, the appropriation of water flowing through the public 
 lands could confer no right on the appropriator either against 
 the Government or its patentees whose title to the land had 
 vested prior to the Act of Congress of July 26th, 1866 — the first 
 Congressional legislation limiting or qualifying the effect of 
 the Government patent. And this is held to be so although 
 the customs, laws and decisions of the Courts of the States 
 wherein the lands lie recognized and enforced rights acquired 
 by the prior appropriation of water in all controversies be- 
 tween occupants of the public lands without title from the 
 Government.^ 
 
 §195. Same — Authorities on This Side Discussed.— 
 
 That the above is held to be the law by some authorities 
 
 1 Union M. & M. Co. vs. Ferris, Gibson vs. Chouteau, 13 Wall. 93. 
 2 Saw. 176; Vansickle vs. Haines, In the recent case of Jacob vs. 
 7 Nev. 249; Mathew vs. Ferrea, 45 Lorenz decided by the Supreme 
 Cal. 51; Ogburn vs. Conner, 46 Court of California, 33 Pac. Rej). 
 Cal. 346; Wilkins vs. McCue, 46 119, that Court held that uiidvr 
 Cal. 656. the Act of Congress of July 26tli, 
 
 2 Union M. & M. Co. vs. Ferris, 1866, that it vk'as not necessary for 
 2 vSawyer, 176; Union M. & M. Co. the purposes specified in Section 
 vs. Dangberg, 2 Sawyer, 450; Lux 9 of said Act that the rights to 
 vs. Haggin, 69 Cal. 255; Van- waters should have vcstt-d before 
 sickle vs. Haines, 7 Nev. 249; its passage.
 
 304 RIGHTS OF APPROPRIATORS. [§ 195 
 
 there can be no doubt, and owing to the vast importance of 
 the subject, which involves property rights of great value, 
 we will in this connection examine the authorities upon both 
 sides of the case at considerable length. First, in taking up 
 the case of Vansiclde vs. Haines,^ we find the facts to be as 
 follows: The defendant Haines secured his patent to a certain 
 tract of land on December 28, 1864, over which a small, non- 
 navigable stream ran by the name of Daggett Creek. The 
 stream nowhere in its natural channel ran over the land of 
 the plaintiff, Vansickle, who on the date of defendant's 
 patent, and "long prior thereto," had appropriated and 
 diverted from the natural channel of the creek for his neces- 
 sary purposes a portion of the water of the stream, which 
 appropriation was interfered with by Haines in December, 
 1867; and since that time Haines had used all or nearly all of 
 the waters of the creek. From this state of facts the trial 
 Court, in a suit by Vansickle as prior appropriator against 
 Haines, for damages and an injunction, decided that the 
 plaintiff had acquired such a right by his appropriation as 
 should be protected in equity. ^ The defendant appealed the 
 case, and the Supreme Court reversed the decree of the trial 
 Court and remanded the cause, with instructions to enter 
 decree for appellants. In denying the petition for a re-hear- 
 ing before the Supreme Court that Court rendered a very 
 lengthy and exhaustive opinion, wherein all the common law 
 authorities are collected and the law as that Court then inter- 
 preted it to be was stated in the " clearest and most satisfac- 
 tory manner." In fact this opinion is cited in many of the 
 subsequent cases bearing upon this point as being the leading 
 case upon the subject. After discussing and quoting several 
 common law authorities, Mr. Chief Justice Lewis, in render- 
 ing the opinion of the Court upon the question, said: "Being 
 an incident to the soil, treated in other respects like other 
 incidents to the land; being, as some Courts say, as much 
 a part of the soil as the stones or trees upon it, upon what 
 principle can it be contended that the United States, which is 
 
 1 y Nev. 249. those of the supposed case in the 
 
 2 It will be noticed that the facts premises of this discussion. See 
 in this case are identical with Ante Section 192.
 
 §195] RIGHTS OF APPROPHIATORS. 305 
 
 the source of all title, which has as complete and absolute 
 an ownership to the soil as can possibly be acquired, does not 
 like other owners of land possess this most inseparable inci- 
 dent to it, that which is a part of it, and without which, in many 
 cases, the land itself would be of no value? If it has not the 
 same right to running water that other proprietors of land 
 have then au}^ individual may divert streams from land 
 belonging to it without regard to whether it may desire to 
 make use of them at some future time; and so, in many cases 
 perhaps render thousands of acres of land utterly worthless, 
 which otherwise would be valuable and find a ready market. 
 So, too, as no person can get a better or more complete title 
 than that which the United States itself has, no one claiming 
 by patent under it can possess the right which is so univers- 
 ally conceded to all persons owning land upon or over which 
 streams of water flow, but must be confined to such rights as 
 may be acquired by actual appropriation or use, which would 
 be a condition of things existing in no country in the world 
 where the full title is in the individual. If, as we have shown, 
 the water naturally flowing through the land is an incident 
 or a part of the land itself, whence the authority in a State 
 Court to hold that such incident does not attach to the land 
 belonging to the United States?" After citing several common 
 law authorities he saj's: " These authorities completely over- 
 turn the argument for the petitioner in this case, for if the 
 right be one inseparably incident to the land; if the right to 
 have the stream continue its flow in its natural channel does 
 not grow out of or depend upon any special user; or if, in the 
 language of the cases, the owner of the land on a stream is 
 necessarily and at all times using the water running through 
 it without any act of his own, by the fertility which its natu- 
 ral flow imparts to the soil, then it follows that the United 
 States is as capable of enjoying the right as an individual, as 
 its land will be no less benefitted by the natural flow of the 
 stream than that of a citizen, nor would the diversion of it 
 be any less injurious to it than it would to an individual who 
 is making no special appropriation of it. Indeed, the whole 
 argument is based upon the assumption that the rijiarian 
 proprietor has no right to have a stream continue its (low
 
 306 RIGHTS OF APPROPRIATORS. [§195 
 
 through his land unless he has some special use to make of 
 it, or has made some particular appropriation of it; whereas 
 every case which has ever come under the observation of the 
 Court (and they are numerous) holds the contrary." The 
 Court concludes the argument upon the point as follows: 
 "Indeed, nothing is clearer than that an occupant of any 
 portion of the public land has no more right as against the 
 United States, to enter upon other portions of it and divert it 
 from a water course, than would he if, instead of belonging to 
 the United States, it were the property of an individual, for 
 its title to the soil is as absolute and complete as the most 
 perfect title which an individual can obtain, and has all the 
 remedies for protecting its property which the citizen has, 
 and even more. If Vansickle had no right to enter upon the 
 land of an individual for this purpose he would have no 
 greater right respecting land which is public. And as an 
 individual would have a right to claim the return of a stream 
 if it was diverted, so with the Government. And all the 
 right or title which the United States had in the land of 
 Haines was conveyed to him by patent, and the patent neces- 
 sarily carried with it the stream running through the land 
 as an incident to it, together with the right to have it returned 
 to the land if diverted."^ 
 
 Then, after citing several California cases to show that the 
 parties in certain water right contracts in that State were not the 
 owners of the soil, and therefore the common law rule did not 
 apply, he concluded the entire argument by saying: "That 
 this is the reason upon which the California cases and those 
 formerly rendered in this State is based, and that the common 
 law was not applicable because of the fact that the persons 
 claiming had not the title to the land, is so familiar to the 
 profession that it is incomprehensible how they can be referred 
 to as authority in a case like this, where the absolute title to 
 the land is in the parties, and the appellant is claiming the 
 right to the water, not as was done in the California cases by 
 virtue of prior appropriation, which was the only right upon 
 
 1 Citing Cook vs. Foster, i Gil. 381; Colvin vs. Burnett, 2 Hill. 620. 
 6.52; Wilcoxon vs. McGee, 12 III.
 
 § 195, 196] RIGHTS OF APPROPRIATORS. 307 
 
 which it could then be claimed, but b}' virtue of his patent; 
 by virtue of having the complete right which the United 
 States had. It will be readily perceived, then, that the cases 
 referred to have no pertinency whatever to the question in- 
 volved in this case. Being fully satisfied with the former 
 opinion we must den}^ a rehearing." 
 
 And Associate Justice Garber, in concurring, especially said: 
 " If I believed that a re-argument could throw any additional 
 light on the subject involved, I should unhesitatingly advise 
 the granting of the petition. Because I feel sensibly that the 
 decision we have been compelled to render, in obedience to 
 the law as it is written, and which it is our function to declare 
 and not to alter, may work great hardship in this particular 
 case, and, as a general rule applicable to a certain class of 
 patents ma}^ disappoint expectations long, though erroneously, 
 considered by the public as well founded. Unfortunately, 
 this is not a case where such common error can be said to 
 have made itself law; and after as thorough an investigation 
 as I am capable of making, I feel constrained to concur in the 
 the position so fully elaborated by the Chief Justice, that on 
 every point essential to the case, petitioner, not merely the 
 weight of authority, but all the authorities are against him." 
 
 § 196. Same. — Continued. — The decision in the above case 
 was also affirmed in the Ninth Circuit Court of the United 
 States in the case of the Union Mill and Mining Company vs. 
 Ferris,^ which was also a Nevada case, decided in the year 
 1872, and Mr. Justice Hillyer, in rendering the opinion, said: 
 " We consider it entirely clear that before the title to these 
 lands was acquired from the Government of the United States 
 no occupancy or appropriation of water by either party, no 
 State or Territorial legislation, or rule of decision established 
 by the State Courts in controversies between occupants of the 
 public lands without title from the Government, can in any 
 manner qualify, limit, restrict or affect the operation of the 
 Government patent; that the Government has a perfect title 
 to the Government lands, and an absolute and unqualified 
 
 J 2 Sawyer, 179.
 
 308 RIGHTS OF APPROPRIATORS. [§ J96 
 
 right to disposal; that a stream of running water is a part and 
 parcel of the land through which it flows, inseparably an- 
 nexed to the soil, and the use of it as an incident to the soil 
 passes to the patentee who can be deprived of it only by grant 
 or by the existence of circumstances from which it is the 
 policy of the law to presume a grant; that the Government, 
 as proprietor of the land through which a stream of water 
 naturally flows, has the same property and right in the stream 
 that any other owner of land has, be it usufructuary^ or other- 
 wise, and that a statute of limitation does not run against the 
 United States. Upon the foregoing propositions it is not 
 deemed necessary to enlarge. They seem incontestable. 
 We shall content ourselves with a reference to Vansickle vs. 
 Haines, 7 Nev. 249, wherein the authorities are collected 
 and the law stated in the clearest and most satisfactory man- 
 ner; and the case of Gibson vs. Chouteau, 13 Wall. 93." 
 
 And upon the claim that the Act of Congress of July 26tli, 
 1866, confirmed the rights of those who had prior to that Act 
 acquired rights in streams by appropriation, the Court said: 
 " But the Act is prospective in its operation and cannot be 
 construed so as to divest a part of an estate granted before its 
 passage. If it be admitted that Congress has the power to 
 divest a vested right by giving a statute a retrospective opera- 
 tion that interpretation will never be adopted without abso- 
 lute necessity.^ As this law, being general in its terms, can- 
 not be held to operate retrospectiveh', it follows that the de- 
 fendant's patent of June 15th, 1865, and the complainant's of 
 September 15th, 1864, are in no manner qualified by this Act, 
 passed subsequent to their issue . As against these patents 
 neither can claim any right to the use of the water b}-' virtue 
 of prior appropriation or possession, but in respect to them 
 their rights to the water must be fixed by the law applicable 
 to them as owners of the soil through which the stream 
 naturally flows. But if when the Act was passed the de- 
 fendant had such a right by priority of possession as that Act 
 contemplates, upon the construction which must be given, 
 
 1 2 Sawyer, 185, citing Blanchard sickle vs. Haines, 7 Nev. 249. 
 vs. Sprague, 3 Sumner, 535; Van-
 
 §196, 197J RIGHTS OF APPROPKIATOKS. 309 
 
 that right is confirmed in him and he is entitled to protection 
 as against one claiming as riparian proprietor merely through 
 a patent issued after, and when no right had vested in the 
 patentee before the Act became a law. The statute is in effect 
 incorporated into such subsequent patents, and operates as an 
 exception out of the estate granted to the complainant by the 
 patent of October loth, 1866. If we have rightly inter- 
 pretated the Act of Congress, and the operation of the patent 
 issued before and after the passage of that Act is as we have 
 stated, the case stands in this wise: The defendant's claim, 
 by virtue of adverse enjoyment, falls to the ground, because 
 sufficient time has not elapsed since the lower premises were 
 conveyed by the Government. He cannot sustain his claim 
 by force of the Act of Congress, because the complainant's 
 patents of September, 1864, were made before the Act was 
 passed and conveyed the upper premises absolutely and free 
 from any claims by prior possession merely." 
 
 §197. Comments Upon Above lluliiij^s.— There is no 
 
 doubt that the rulings as above set forth have worked great 
 hardships in many particular cases, but that it was considered 
 the law by this line of authorities, at least at one time, there 
 can be no question. As Associate Justice Garber said upon 
 the proposition, in concurring in the opinion in the case of 
 Vansickle vs. Haines, supra: " I feel constrained to concur 
 in the proposition so fully elaborated by the Chief Justice 
 that on every point essential to the case of the petitioner, not 
 merely the weiglit of authority, bid all the authorities are 
 against him:' It was a rule that was applied only to that 
 class of patents i.ssued prior to the 26th July, 1 866— the date 
 of the first Congressional Act restricting or limiting in any 
 manner patents issued by the United States for any portion 
 of the public domain. And the cause of the passage of this 
 limiting Act on the part of the Government can be readily 
 seen by those who understand the history of the case.^ 
 
 1 vSee on Uiis siil>ject Cliajjlcr IV, Kirk, gS U. S. 453. 
 Section 113, 114; Jcniiison vs.
 
 310 RIGHTS OF APPROPRIATORS. [§ 198 
 
 § IDS. Criticism of Yausicklle vs. Haines, and the Doc- 
 trine Therein Expressed. — Our own views upon the subject 
 are somew^hat different from the doctrine laid down in the 
 leading case of Vansickle vs. Haines, supra. For eighteen 
 years prior to the time when this Act of Congr ess was passed 
 the lands of the arid region had been occupied, and the 
 waters of the streams and lakes thereon had been diverted by 
 citizens of the United States without any objection whatever 
 on the part of the Government. First, the mines had called 
 people to this part of the country; and after the mining 
 excitement had died out, finding the climate good and that 
 by turning upon the soil the waters of the natural streams 
 almost anything in the line of fruits or grains could be raised, 
 many who were called to the country by the mines settled 
 down to agricultural pursuits, besides those who came 
 especially for that purpose. Fruitful California to-day bears 
 witness to the good judgment of these early settlers. And 
 we may add further that the change from almost a desert to 
 the present condition of that State has been brought about 
 almost entirely by irrigation. Canals and ditches were dug 
 during these earl)^ times, and the waters of natural streams 
 and lakes diverted for mining, agricultural and other bene- 
 ficial purposes. Possessory rights to public lands, mining 
 claims and the water necessary for irrigating or working the 
 same were regulated b}^ local customs. State statutes, and 
 enforced in the State Courts. The Courts not applying the 
 doctrine of the common law respecting riparian owners in 
 deciding between these possessors of water rights, none of 
 whom had title to the soil, recognized a species of property 
 in running water, and held that he who had first appropriated 
 the waters of a natural stream to a beneficial purpose, had to 
 the extent of his appropriation, the better right as against all 
 persons appropriating water from the stream subsequently to 
 him. But as time went on the lands were surveyed by the 
 Government, with a view of course to the sale of the same, 
 and persons who had constructed canals and ditches saw that 
 when those lands adjoining the streams from which they took 
 the water, or through which their ditches and canals ran were 
 sold, they would, without some protective legislation, be at
 
 § 198, 199] RIGHTS OF APPROPRIATORS. 311 
 
 the mercy of the purchasers of the legal title to the soil. 
 And it was wholly this question of protection to these posses- 
 sory rights already acquired in and to the waters of streams 
 that caused the passage of the 9th Section of the Act of Con- 
 gress of July 26th, 1866, and called forth the great speech of 
 Senator Stewart, which has been taken as authority by the 
 Supreme Court of the United States as to the cause of the 
 passage of that Act.^ Now the question naturally arises, in 
 view of all the history as to the cause of the passage of this 
 Act of Congress of 1866, if it was not to protect the rights of 
 waters, ivhich had already accrued, prior to the lime of its pas- 
 sage, why zoas the Act passed at all? The Act was certainly 
 passed to protect these rights in ivaters zvhich had already ac- 
 crued, This interpretation, it seems to us, is the only one 
 consistent with the history and cause of the passage of the 
 Act, the language of the Act itself, and its subsequent inter- 
 pretation by the Courts.^ 
 
 § 19i). Same.— Authorities Discussed.— We are aware of 
 the fact, in criticising the doctrine laid down in the opinion of 
 \'ansickle vs. Haines, which is considered a leading case 
 upon that side of the question, that there are some very high 
 authorities which can be cited in support of the doctrine 
 therein set forth. That case was decided in January, 1872, 
 and it was an opinion which for a number of years thereafter- 
 wards was quoted as almost absolute authority upon the prop- 
 osition that a person acquiring a title to land through which 
 or adjoining which a stream of water ran prior to the Act of 
 Congress of 1866 succeeded to the right of the Government, 
 unincumbered by any previous appropriation of the waters of 
 the stream. And among these high authorities is the opinion 
 of Mr. Justice Hillyer, of the Ninth Circuit Court of the 
 
 1 Ante Chapter IV, vSectiou 114; Reno vS. M. Co. vs. Stevenson, 
 
 Jennison vs. Kirk, 98 U. vS. 453. 20 Nev. 269. aflhnunK Jones vs. 
 
 2See Jones vs. Adams, 19 Nev. Adams, supra. 
 
 78, expressly overrulin.s^ the doc- Jennison vs. Kirk, 98 U. S. 453; 
 
 trine laid down in Vansickle vs. Hroder vs. Naloma Water Co., loi 
 
 Haines, 7 Nev. 249. U. S. 274.
 
 312 RIGHTS OF APPR.OPRIATORS. [§ 199, 200 
 
 United States, in the case of the Union Mill and Mining Co. 
 vs. Ferris/ decided in May of the same year as Vansickle vs. 
 Haines, in which, after stating what was practically the doc- 
 trine laid down in the latter case, he said: "On the foregoing 
 propositions it is not deemed necessary to enlarge; they seem 
 incontestable, and we shall content ourselves with reference 
 to the case of Vansickle vs. Haines, 7 Nev. 249, where the 
 authorities are collected, and the law stated in the clearest 
 and most satisfactory manner." 
 
 In Pomeroy on Riparian Rights a work published in 1887, 
 about twent}' pages are used in discussing this case and in 
 sanctioning the doctrine therein set forth; and the same 
 identical language is adopted in the late work published in 
 1893, Black's Pomeroy on Water Rights.^ 
 
 And referring in these two works to the opinion, the author 
 says: "But the decision itself is so important, and the opinion 
 of Chief Justice Uewis is so able, learned and exhaustive that 
 no excuse is needed for the long extracts which I have made. ' ' •' 
 Also in that most valuable work, Gould on Waters, second 
 edition, published in 1891, in section 240, the author says: 
 "The United States, as proprietor of the public lands, has 
 the same rights and property in the streams flowing through 
 such lands that would be possessed by any riparian proprietor; 
 and in the absence of legislation by Congress limiting the 
 effect of the grant, patents for public lands from the general 
 Government pass, together with the fee of the soil, and, as 
 incident thereto the benefit of all natural streams which flow 
 through them." ^ 
 
 § 200. Same.— Siiiiie.— Common Law of England.— In 
 
 spite of the great array of authorities against us, quoted 
 above, we shall endeavor to demonstrate in the following dis- 
 cussion that the theories advanced in the case of Vansickle 
 vs. Haines are not at least the present law upon the subject, 
 
 1 2 Sawyer, 179, SPomeroy on Riparian Rights, 
 
 2 See Pomeroy on Riparian P. 201; Black's Pomeroy on Water 
 Rights, Sees. 1 19-120; Black's Rights, P. 257. 
 
 Pomeroy on Water Rights, Sees. 4 citing Vansickle vs. Haines, 
 
 134-135. supra.
 
 § 200, 201] RIGHTS OF AITROPKIATORS. 313 
 
 if they were at the time that case was decided. In the first 
 place, the theory upon which that case was decided, as will 
 be readih' seen, was that the Court considered the language 
 of the statute adopting the common law as also adopting the 
 riparian rights of that law as understood and expounded by 
 the English and American authorities thereon, and rejected 
 all consideration of the question as to whether that law was 
 suited or unsuited to the condition and necessities of the dry 
 arid State of Nevada. The statute in force at the time of the 
 decision was: " The common law of England, so far as it is 
 not repugnant to or inconsistent with the Constitution or laws 
 of the United States, or the laws of the Territory of Nevada, 
 shall be the rule of decision in all courts of this Territory."^ 
 And when Nevada became a State the above enactment was 
 adopted in the Constitution by the following clause: "All 
 laws of the Territory of Nevada in force at the time of the ad- 
 mission of this State, not repugnant to this Constitution, shall 
 remain in force until they expire by their own limitations or 
 be altered or repealed by the Eegislature."" 
 
 As will be noticed, the section is entirely silent upon the 
 subject as to the applicability or non-applicability of the com- 
 mon law or anj^ portion thereof to the conditions or necessi- 
 ties of the State of Nevada. In the opinion in question upon 
 this point the Court said after quoting the section of the 
 statute as above: " Hence, although the common law might 
 in the opinion of judges, be inapplicable, still, if not in con- 
 flict with the Constitutional laws of the United States or the 
 Constitution or laws of Nevada, it must nevertheless be en- 
 forced." We do not think that this is the rule adopted by the 
 various courts of this country, as we shall endeavor to show in 
 the next section. 
 
 §201. Same. — Comniou Law of Eiii;lainl. — Adopted 
 
 When. — The common law of England must be understood 
 as having been adopted only in cases where it is applicable to 
 the habits, necessities and conditions of our society, and in 
 
 1 vStat. Nev. l86[, Page I. 2 Sec; Constitution of N.-v.i.l.i, 
 
 Art. XVII., vSec. 2.
 
 314 
 
 RIGHTS OF APPROPRIATORS. 
 
 [§201 
 
 harmony with the genius, spirit and objects of our institu- 
 tions.^ That the above rule is the law there can be no doubt, 
 and upon this subject Mr. Justice Story, in rendering the 
 opinion of the Supreme Court of the United States in the 
 case of Van Ness vs. Packard," said: " The common law of 
 England is not to be taken in all respects to be that of 
 America. Our ancestors brought with them its general prin- 
 ciples and claimed it as their birth right; but they brought 
 with them and adopted only that portion which was applicable 
 to their situation."'^ 
 
 From the above authorities we are of the opinion that no 
 doctrine is better settled in the United States than that such 
 portions of the common law of England as are not adapted to 
 the necessities, condition and society of our people form no 
 part of the law of this country. Its applicabilitj" to the 
 
 1 I Kent's Com. 472, 536: State 
 vs. Calvin. Charl.(Ga.) 166; Barlow 
 vs. Lambert. 28 Ala. 704; 65 Am. 
 Dec. 374. 
 
 Boyer vs. Swett, 3 Scam. 120, 
 where it was held that the com- 
 mon law is adopted in the State of 
 Illinois by general legislative 
 enactment, but this must be un- 
 derstood only in those cases where 
 that law is applicable to the habits 
 and conditions of the societ}' of 
 that State, and is in harmony witli 
 the genius, spirit and objects of 
 the State. 
 
 See also Stuart vs. People, 3 
 Scam. 404; Penny vs. Little, 3 
 Scam. 301; Pultney vs. Ross, i 
 Dall. 238; vSeeley vs. Peters, 5 Gil- 
 man, 150; Shewell vs. I'ell, 3 
 Yeates. 17; Lindsley vs. Coats, r 
 Ohio, 243; Carson vs. Blazer, 2 
 Bin. 475; 4 Am. Dec. 463; Shrunk 
 vs. vSchuylkill N. Co., 14 S. & P. 
 71; Morgan vs. King, 30 Barb, g; 
 Wagner vs. Bissell, 3 Iowa, 396; 
 Norris vs. Harris, 15 Cal. 226; Le 
 Barron vs. Le Barron, 35 Vt. 365; 
 
 United States vs. Worrall, 2 Dall. 
 384; Sackett vs. Sackett, 8 Pick. 
 309; McClintock vs. Bryden, 5 Cal. 
 100; 63 Am. Dec. 87, and note; 
 People vs. Canal Appraisers, 33 N. 
 Y. 482; Ex-Parte Blanchard, 9 
 Nev. 105; Evans vs. Cook, 11 Nev. 
 74; Clark vs. Clark, 17 Nev. 128. 
 
 2 2 Peters, 144. 
 
 3 Bogardus vs. Trinity Church, i 
 Paige, 198. 
 
 In the vStates where the common 
 law has not l)een adopted by legis- 
 lative enactments courts have pro- 
 ceeded upon the hypothesis of its 
 adoption, subject alwa^'s to its ap- 
 plicability to the localit}'. 
 
 Stout vs. Keyes, 2 Doug. (Mich.) 
 184; 43 Am. Dec. 465. 
 
 Lorman vs. Benson, 8 Mich. 18; 
 77 Am. Dec. 435, where the Court 
 held that the questions of property 
 not clearly exempted by it must 
 be determined by the common 
 law, modified only by such cir- 
 cumstances a.i, render it inap- 
 plicable to local affairs.
 
 § 201, 202] RIGHTS OF APPROPRIATORS. 315 
 
 physical conditions and necessities of an}' State or Territory of 
 this countr}' imist be taken into consideration, bearing in mind 
 that the common law was framed with special reference to the 
 phj'sical condition of a country and the needs of a people dif- 
 fering widely from our own. Hence it follows that the com- 
 mon law theory of riparian rights, applicable in the country 
 where it was first adopted on account of its damp, humid cli- 
 mate and atmosphere, is entirely inapplicable to the condi- 
 tions and necessities of the arid region of the United States, 
 of which the State of Nevada, with its hot, dry climate and 
 parched soil, is a good example.^ 
 
 § 30'2. Same.— Criticism of Vaiisickle vs. Haines Con- 
 tinued. — A second ground of our argument that the Court 
 erred in its decision in the case of Vansickle vs. Haines, as 
 well as have all the Courts and authorities erred in fol- 
 lowing the doctrine therein laid down, is based upon the fact 
 that for a period of eighteen years the Government of the 
 United States by its silent acquiescence had assented to and 
 encouraged the appropriation and diversion of the waters of 
 streams and lakes upon the public domain for the purpose of 
 mining and agricuTture. And this acquiescence and consent, 
 prior to any Act of Congress relative to this use of water, 
 amounted to a license on the part of the Government to those 
 so using the water, which license it is true might have been 
 revoked at any time by the Government, but which instead 
 was actually ratified and confirmed by the nintli section of the 
 Act of July 26tli, i866. This Act simply put in statutory 
 language what the Government had before licensed, and gave 
 the owners of water rights upon the public lands of tlie United 
 States the continuation of the same right which tliey held 
 under the local customs, laws and decisions of the courts prior 
 to its enactment. The authorities upon whicli we shall base 
 this proposition we shall take the liberty to discuss and quote 
 at considerable length, as the question is one of the utmost 
 importance. 
 
 1 Atchison vs. Peterson, 2o Willi. son, 20 Nev. 280; Mr. Justice 
 507; Jones vs. .^dains, 19 Nev. 78; Ross in di.ssentinfj oi)inion of Lux 
 Reno S. M. lS: R. Wks. vs. Steven- vs. Ilagfjin, 69 Cal. 450.
 
 316 RIGHTS OF APPKOPRIATORS. [§ 203 
 
 § 203. Same. — Same. — Authorities Discussed. — The case 
 of lyUx VS. Haggin ^ was decided in i866 by the Supreme 
 Court of California, and upon a majority vote of the Justices 
 thereof Mr. Justice McKinstry rendered the majority opinion, 
 with three other Justices, McKee, Sharpstein and Thornton 
 concurring; Mr. Chief Justice Morrison, Justices Myrick and 
 Ross, dissenting — the last two Justices rendering separate 
 dissenting opinions. Mr. Justice Myrick as one of the grounds 
 of his dissenting opinions said : "I do not think that the 
 adoption of the common law of England b}- the Act of the 
 Legislature of this State of April 13, 1850, was intended to 
 or did establish a rule of decisions as to the right of appro- 
 priation of water for irrigation. The land of the birth of the 
 common law of England had no occasion to consider or act 
 upon the necessity for irrigation, and appropriation was not 
 within the scheme of its lavv^s. The rights of riparian owners 
 (whatever they were) had reference to the country and its 
 needs, of which irrigation was not an essential part." 
 
 Mr. Justice Ross, after discussing the authorities at length 
 and the general applicability of the common law to the con- 
 dition of the State, said: " It seems to me, therefore, that 
 this Court in the late case of Osgood vs. Water and Mining 
 Company, reported in 56 Cal. 571, was entirely justified in 
 saying, as it did, that ' the principle of prior appropriation of 
 water on the public lauds in California, where its artificial use 
 for agricultural, mining and other like purposes is absolutely 
 essential, which has all along been recognized and sanctioned 
 by the local customs, laws and decisions, was expressly rec- 
 ognized and sanctioned by the Supreme Court of the United 
 States and also by the Act of Congress of 1866.' It was this 
 principle, and nothing else, that secured the defendant in the 
 case of Broder vs. Water Company, loi U. S. 276, in the con- 
 tinued enjoyment of the water it had appropriated as against a 
 grant froDi the Government antedating tJie Act of 1866, for the 
 Court in terms declares: ' We do not think that the defendant 
 is under the necessity of relying on that statute.' The defen- 
 dant had acquired the right to divert the water from its natu- 
 
 1 69 Cal. 255, 4490; 10 Pac. Rep. 675,
 
 §203.] RIGHTS OF APPROPRIATORS. 3l7 
 
 ral channel and appropriate it to a useful purpose, because the 
 Government, in view of the necessities of the country, which 
 were widely different from those of the country from which 
 the common law was taken, had by its conduct through a long 
 series of 3-ears, recognized and encouraged such diversions and 
 use of the waters upon the public lands. The Government per- 
 mitted the principle of appropriation of such waters to grow up 
 and become a part of the law in relation to the public land, and 
 therefore in construing the grant from the Government the 
 Court considered it with reference to the principle of appropria- 
 tion, and protected the rights of defendant which arose under 
 and by virtue of that principle. The common law doctrine 
 of riparian rights being wholly inconsistent with and antago- 
 nistic to that of appropriation, it necessarily follows that when 
 the Federal and State Governments assented to, recognized, 
 and confirmed the doctrine of appropriation, with respect to the 
 waters upon the public lands they in effect declared that that of 
 riparian rights did not apply. The doctrine of appropriation 
 then established was not a temporar}' thing, to exist only 
 until some one should obtain a certificate or patent for forty 
 acres or some other sub-division of the public lands bordering 
 upon the river or other stream of water. It was, as has been 
 said, born of the necessities of the country and its people, the 
 growth of 3'ears, permanent in its character, and fixed the 
 status of water -rights with respect to public lands. No valid 
 reason exists why the Government, which owns both the land 
 and water, could not do this. It thus became, in my judg- 
 ment, as much a part of the law of the land as if it had been 
 written in tervis in the statute books, and in connection with xvhich 
 all grants of public land from either Government should read. 
 In the light of the history of the State and of the legislation 
 and decisions with respect to the subject in question is it 
 possible that either Government, State or National, ever con- 
 templated that conveyance of forty acres of land at the lower 
 end of a stream that flows for miles through the public lands 
 should put an end to subsequent appropriation of the waters 
 of the stream upon the public lands above, and entitle the 
 grantee of the forty acres to the undiminished flow ()\ the 
 water in its natural channel from its source to its mouth? It
 
 318 RIGHTS OF APPROPRIATORS. [§ 203, 204. 
 
 seems to me entirely clear that nothing of the kind was ever 
 contemplated." 
 
 § 204. Same. — Same. — Jones vs. Adams — In the case of 
 Jones vs. Adams ^ the decision in the case of Vansickle vs. 
 Haines, and the common law doctrine therein laid down, 
 which has been followed by some authorities as a leading case 
 upon the subject, was expressly overruled. And as the au- 
 thorities upon the subject are collected and the principles are 
 summed up in a verj" able manner, we will quote at length 
 from the decision in that case. Mr. Justice Hawlej^, in ren- 
 dering the opinion of the Court, said: "In Union M. & M. 
 Co. vs. Ferris 2 it was claimed by the defendants that the Act 
 of Congress confirmed their rights acquired by priority of 
 appropriation;^ but the Court ignored this claim and endorsed 
 the doctrines enunciated by the Court in Vansickle vs. Haines. 
 We are of the opinion that the ninth section of the Act of 
 Congress confirmed to the owners of water rights on the pub- 
 lic lands of the United States the same rights which \\\Q.y held 
 under the local customs, laws and decisions of the Courts 
 prior to its enactment; that the Act of Congress did not in- 
 troduce, and was not intended to introduce, au}^ new system, 
 or to evince any new or different policy upon the part of the 
 general Government; that it recognized, sanctioned, protected 
 and confirmed the system already established hy the customs, 
 laws and decisions of Courts, ^.n^ provided for its continuance. 
 
 "We had occasion in Barnes vs. Sabron, lo Nev. 230, to 
 quote with approval the doctrines announced by the Supreme 
 Court of the United States in Basey vs. Gallagher, that the 
 Government, by its silent acquiescence, had assented to and 
 encouraged the occupation of the public lands for mining pur- 
 poses; that he who first connected his labor with the property 
 opened to general exploration, in natural justice acquired a 
 better right to its use and enjoyment than others who had not 
 given such labor; that the miners on the public lands and 
 throughout the Pacific States and Territories by their customs, 
 usages and regulations, had recognized the inherent jus- 
 
 1 19 Nev. 78. -^Act of Congress of July 26th, 
 
 22 Sawyer, 79. t866.
 
 §204.] RIGHTS OF APPROPRIATORS. 319 
 
 tice of this principle, and that it had been recognized by leg- 
 islation, and enforced by the Courts and finally approved by 
 the Legislation of Congress in 1866; that this principle was 
 equally applicable to the use of water on the public lands for 
 the purposes of irrigation; and we declared that it logically 
 followed, from the legal principles announced in that case, 
 that the first appropriator of the waters of a stream had the 
 right to insist that the water flowing therein should 'during 
 the irrigating season be subject to his reasonable use and 
 enjoyment, to the full extent of his original appropriation 
 and beneficial use.' 
 
 "In Basey vs. Gallagher^ the Court, after quoting the ninth 
 section of the Act of Congress, said: 'It is very evident that 
 Congress intended, although the language used is not happy, 
 to recognize as valid the customary lazv with respect to the use 
 of water which had grown up among the occupants of public 
 lands under the peculiar necessities of their condition; and 
 that law may be shown by evidence of the local customs, or 
 by the legislation of the State or Territory or by the decisions 
 of the Courts. The union of the three conditions in any 
 particular case is not essential to the perfection of the right 
 b}^ priority; and in case of conflict between a local custom 
 and a statutory regulation, the latter, as of superior authority, 
 must necessarily control.' 
 
 "In Jennison vs. Kirk, - counsel for the plaintiff" contended 
 that of the two rights mentioned in the ninth section of the 
 Act of Congress only the right to the use of water on the pub- 
 lic lands acquired by priority of possession is dependent upon 
 local customs, laws and decisions of the Courts; and that the 
 right-of-way over such lands for the construction of such 
 ditches and canals is conferred absolutely upon those who 
 have acquired the water rights, and is not subject in its en- 
 joyment to the local customs, laws and decisions. The Court 
 refused to sustain this position, and said: ' The object of the 
 section was to give the sanction of the United States, the 
 proprietor of lands, to possessory rights, which had previously 
 rested solely upon local customs, laws and decisions of the 
 
 1 20 Wall. 670. 2 98 U. vS. 460.
 
 320 RIGHTS OF APPROPRIATORS^, [§ 204. 
 
 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.' 
 
 "After stating at considerable length the histor}^ of the 
 discovery of gold in California, the adoption by the miners — 
 in their love of order, SA^stem and fair dealing — of rules and 
 regulations for the government of their property rights; the 
 recognition of the rights, by prior appropriation, to the water 
 of a stream conveyed away from its natural channel for min- 
 ing or other beneficial purposes; the fact that the doctrines 
 of the common law respecting the rights of riparian owners 
 were not considered as applicable, or onl}- in a very limited 
 degree, to tlie condition of the miners; that the waters of 
 rivers and lakes were carried great distances in ditches and 
 flumes, constructed with vast labor and enormous expenditure 
 of mone}^ along the sides of mountains and through canyons 
 and ravines, to supply communities engaged in mining, as 
 well as for agriculturist and for ordinary consumption, and 
 giving the views of the author of the Act and interpreting its 
 several sections, the Court, speaking of the ninth section, 
 said: ' In other words, the United States by the section said 
 that whenever rights to the use of water by priority of pos- 
 session had become vested, and were recognized by the local 
 customs, laws and decisions of the Court, the owners and 
 possessors should be protected in them; and that the right of 
 way for ditches and canals incident to such water rights being 
 recognized in the same manner should be acknowledged and 
 confirmed; but where ditches subsequently constructed injured 
 by their construction the possession of others on the public 
 domain the owners of such ditches should be liable for the 
 injuries sustained. Any other construction would be incon- 
 sistent with the general purpose of the Act, which, as already 
 stated, was to give the sanction of the Government to the posses- 
 sory rights acquii ed under the local cnstonis, laics and decisions 
 of the Courts.' 
 
 "In Broder vs. Natoma Water Co.,^ the Court said: 'It is 
 1 loi U. S. 276, and authorities there cited.
 
 § 204, 205.] Rights of appropriators. 321 
 
 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 have constructed canals 
 and ditches to be used in mining operations and for purposes 
 of agricultural irrigation, in the region where such artificial 
 use of the waters 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 
 1 866. We are of the opinion 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 
 contiynied use than the establishment of a neiv one.'^ 
 
 ' ' It necessarily follows from these views we have expressed 
 and from the doctrine announced in the authorities we have 
 cited that the Court did not err in rendering its judgment and 
 decree upon the findings in relation to prior appropriations. 
 The case of Vansickle vs. Haines, in so far as the same is in 
 conflict with the views herein expressed, is hereby over- 
 ruled. 
 
 " The judgment of the District Court is affirmed." 
 (It will be noticed upon examination that the facts in the 
 above case are similar to the facts in the case of Vansickle vs. 
 Haines.) 
 
 § 205. Same.— Reno Sineltiii!;, Milling- and Reduction 
 Works vs. Stevenson. — In a still later Nevada case, of the 
 Reno S., M. & R. Works vs. Stevenson,^ in which the case of 
 Jones vs. Adams, supra, overruling Vansickle vs. Haines, 
 supra, was affirmed, Mr. Justice Belknap, in rendering the 
 opinion of the Court and after discussing the United States 
 cases above and quoting the statute upon the subject of com- 
 mon law, said: " This was substantially the statute when 
 Vansickle vs. Haines was decided. The statute is silent upon 
 the subject of applicability of the common law, but we tliink 
 the term ' common law of Ivngland ' was employed in the 
 sense in which it is generally understood in this country, and 
 
 1 Citing Coffin vs. Left Hand Ross, J., in I<ux vs. II;ii;jj;in, 69 
 Ditch Co., 4 Colo. 443; opinion 1)y Cal. 255. 
 
 220 Nev. 269.
 
 322 RIGHTS OF APPROPRIATORS. [§ 205, 
 
 the intention of the legislature was to adopt only so much of it 
 as was applicable to our condition. An examination of the 
 authorities will render this apparent. ' ' Then, after discussing 
 at some length the authorities upon this subject, he quoted 
 from the opinion of Bronson, J., in Starr vs. Child (20 Wend. 
 149), in which he said: " Now, I think no doctrine better 
 settled than that such portions of the law of England as are 
 not adapted to our condition form no part of the law of this 
 State. This exception includes not only such laws as are in- 
 consistent with the spirit of our institutions, but such as were 
 framed with special reference to the physical conditions of a 
 country differing widely from our own. It is contrary to the 
 spirit of the common law itself to apply a rule founded on a 
 particular reason to a law when that reason utterly fails — 
 cessarde ratione legis, cessat ipsa lex. In States where the 
 common law has not been adopted by legislative enactment 
 Courts have proceeded upon the hypothesis of its adoption, 
 subject always to its applicabilit}^ to the locality." Then, 
 after citing several authorities upon this subject, the Court 
 proceeds: " From these authorities we assume that the ap- 
 plicability of the comm-on law rule to the physical characteris- 
 tics of the State should be considered. Its inapplicability to 
 the Pacific States, as shown in Atchison vs. Peterson,^ ap- 
 plies forcibly to the State of Nevada. 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 irrigation. The condition of the country and the 
 necessities of the situation impelled settlers upon the public 
 lands to resort to the diversion and the use of waters. This 
 fact of itself is a striking illustration and conclusive evidence 
 of the inapplicability of the common law rule. The system 
 which the necessities of the people established was recognized 
 and confirmed by the legislation of Congress — First ^ by the 
 Act of July 26th, 1866, which declares, in its ninth section, 
 
 1 20 Wall. 507.
 
 § 205.] RIGHTS OF APPROPRIATORS. 323 
 
 ' that whenever by priority of possession rights to the use of 
 water for mining, agricultural, manufacturing or other pur- 
 poses have vested and accrued, and the same 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 
 second, by the desert land act, which encourages the appro- 
 priation and use of water upon such of the public lands as 
 will not without irrigation produce an agricultural crop, by 
 authorizing the sale of a greater amount of such land than the 
 purchaser could otherwise acquire, upon proof of his having 
 conducted water upon it for the purpose of irrigation. This 
 Act applies only to the Pacific Coast States and Territories. 
 (U. S. Stat. 1877, 377.) The legislation of the State also has 
 encouraged the diversion of water by an Act approved March 
 3, 1866, the general object of which is expressed in its title as 
 follows: ' An Act to allow any person or persons to divert 
 the waters of any river or stream and run the same through 
 any ditch or flume, and to provide for the right-of-way through 
 the lands of others.' (Gen. Stat. 362-365.) And the ad- 
 judication of the Courts, with the exception mentioned, have 
 sustained the doctrine of appropriation upon which the people 
 acted. That the doctrine should be upheld as well after the 
 issuance of the patent of the Government, as before, we quote 
 the views of Mr. Justice Ross, in dissenting opinion of I^ux 
 vs. Haggin:^ << * * * The case of Coffin vs. Left Hand 
 Ditch Company, 6 Colo. 443, recognizes appropriation as the 
 law of the State of Colorado. Some of the principles an- 
 nounced in that case are applicable here. ' It is contended by 
 counsel for appellants,' says the Court, ' that the common law 
 principles of riparian proprietorship prevailed in Colorado 
 until 1876, and that the doctrine of priority of right to water 
 by priority of appropriation thereof was first recognized and 
 adopted in the Constitution. But we think the latter doctrine 
 has existed from the date of the earliest appropriations of water 
 within the boundaries of the State. The climate is dry, and 
 the soil, when moistened by the usual rainfall, is arid and 
 
 1 69 Cal. 450.
 
 324 RIGHTS OF APPROPRIATORS. [§ 205. 206. 
 
 unproductive. Except in a few favored sections artificial 
 irrigation for agriculture is an absolute necessity. Water in 
 the various streams thus acquires a value unknown in moister 
 climates. Instead of being a mere incident to the soil it 
 arises when appropriated to the dignity' of a distinct usufruc- 
 tuary estate or right of property. It has always been the 
 policy of the National, as well as the Territorial and State 
 governments, to encourage the diversion and use of water in 
 this country for agriculture; and vast expenditures of time 
 and money have been made in reclaiming and fertilizing by 
 irrigation portions of our unproductive territory. * * * 
 The right to water in this country by priority of appropria- 
 tion thereof we think is, and has always been, the duty of 
 the National and State governments to protect. The right 
 itself and the obligation to protect it existed prior to legisla- 
 tion on the subject of irrigation. It is entitled to protection 
 as well after a patent to a third party of the land over which 
 the natural stream flows as when such land is a part of the 
 public domain, and it is immaterial whether or not it be men- 
 tioned in the patent and expressly excluded from the grant.' 
 Our conclusion is that the common law doctrine of riparian 
 rights is unsuited to the condition of our State, and that this 
 case should have been determined by the application of the 
 principles of prior appropriation." 
 
 § 206. Same. — Conclusions. — From these last cited author- 
 ities it follows that the doctrine of priority of appropriation 
 has existed from the date of the earliest appropriations of 
 water within the boundaries of the arid region as a valid 
 right, not only against those claiming the water of a stream 
 by a possessory right, but also those who claim the water of 
 a stream by virtue of having obtained a patent to the land 
 adjoining the stream prior to the Act of July 26, 1866, where 
 the waters had been appropriated before the inception of the 
 patentee's title, and that That Act of Congress simpl5^put into 
 statutory language the right to continue after its passage in 
 the possession and ownership of all vested rights to waters 
 acquired prior to the passage which were recognized by the 
 local customs, laws and decisions of the Courts.
 
 § 206, 207.] RIGHTS OF APPROPHIATORP. 325 
 
 B}' the acquiescence and legislation of both the State Gov- 
 ernments of the arid west and the National Government the 
 waters on the public lands were dedicated from the earliest 
 period to the use of the appropriate rs, provided that their 
 rights were prior to the rights of riparian owners' title, and 
 also that the water appropriated was applied to some benefi- 
 cial use or purpose. These authorities also declare the law 
 to be that controversies regarding water rights between the 
 appropriators of the water of a certain stream, and those who 
 own the banks of the same stream, in those States which rec- 
 ognize the common law of riparian rights, are to be settled 
 upon the basis of priority — he who is first in time has the 
 superior right. 
 
 § 207. Tlie Rule Subsequent to the Act of ISiiG.— To those 
 persons who acquired a title to their lands subsequent to the 
 26th of July, 1866, the same principle of priority is presented. 
 But over the title to these lands the Courts have not had so 
 much controversy. As we have seen, the United States had 
 a perfect title to its public domain and to the waters flowing 
 over the same; also that the Government, through Congress, 
 has the sole power to dispose of all or any part of its lands to 
 any person or in any manner that it may deem best. In some 
 cases the Government has seen fit to dispose of its lands by 
 means of a patent or Government deed. In other cases simply 
 an Act of Congress is deemed sufficient. The latter method 
 is as effective and vests as good a title in the grantee as the 
 former method vests in the patentee.^ Again, the Govern- 
 ment may dispose of the land with all its incidents to its 
 patentee, or may dispose of the .soil to one person and the in- 
 cidents connected with the soil to another. ^ In other words 
 
 1 A grant of lands "may be made Strother vs. I^ucas, 12 Pet. 410, 
 
 by law as well as by patent issued 454; Courtright vs. C. R. & M. Co., 
 
 pursuant to law, * * * and 35 Iowa, 386. 
 
 such grant vests an indefeasible 2 Ante Chapter V., vSections 134, 
 
 and irrevocable title." 147; Basey vs. Ciallagher, 20 Wall. 
 
 Fletcher vs. Peck, 6 Cranch. 87; 670; Union M. & M. Co. vs. I'crris. 
 
 Territt vs. Taylor, 9 Cranch. 43; 2 Sawyer, 176. 
 Wilkinson vs. Leland, 2 Pet. 627;
 
 326 RIGHTS OF APPROPRIATORS. [§ 207' 
 
 it can dispose of the soil to its patentees, and the waters run- 
 ning over the same to those who have appropriated them to some 
 beneficial use or purpose. And Congress by the Act of 1866 
 saw fit to do that very thing, in case an actual appropriation 
 of water had been made prior to the vested rights of the 
 patentee. The ninth section of that statute acts in a double 
 capacity; first, it is in the nature of a grant to all those who 
 were at that time appropriating the waters of the streams 
 flowing over the public domain, of the waters so appropriated; 
 and second, it acts as a reservation or limitation to all lands 
 disposed of by the Government subsequent to that Act, pro- 
 vided that an actual appropriation of the waters of those 
 lands had been made prior to the date the patentee's rights 
 first vested. It has the same effect in the latter case as though 
 that section of the statute was incorporated in each patent 
 issued subsequent to the Act, and operates as an exception 
 out of the estate granted to the patentee. Hence it follows 
 that whoever acquires title to land from the United States 
 after the 26th day of July, 1866, and prior to this acquisition 
 of title the whole or some part of the water of a natural 
 water course running through such land has been appropri- 
 ated for some useful purpose, the patentee takes the land sub- 
 ject to the rights acquired by such prior appropriator.^ It 
 
 iBrodervs. Natoma Water Co., 1866, or the Amendatory Act of 
 loi U. S. 274; 50 Cal. 621; Atchison 1870) gave the appropriator the 
 vs. Peterson, 20 Wall. 507; Basey right to the water appropriated, 
 vs. Gallagher, 20 Wall. 660; as against a grantee of riparian 
 Forbes vs. Gracey, 94 U. S. 762; lands under a grant made or 
 Jennison vs. Kirk, 98 U. S. 453; issued prior to the Act of 1866, ex- 
 Union M. & M. Co. vs. Ferris, 2 cept in a case where the water so 
 Sawyer, 176; Union M. & M. Co. subsequently appropriated was 
 vs. Dangberg, 2 Sawyer, 451. reserved by the terms of such 
 
 Ivux vs. Haggin, 69 Cal. 255; 10 grant." 
 
 Pac. Rep. 674, where it was stated Sparrow vs. Strong, 4 Wall. 97, 
 
 that: "It has never been held by 777; Barnes vs. Sabron, 10 Nev. 
 
 the Supreme Court of the United 216; Lytle Creek vs. Perdew, 65 
 
 States or by the Supreme Court of Cal. 447; 2 Pac. Rep. 732; Judkins 
 
 this State that an appropriation vs. Elliott, Cal. ; 12 Pac. 
 
 of the water on the public lands of Rep. 116; Kales vs. Campbell, 13 
 
 the United States (made after the Or. 596; 11 Pac. Rep. 301; Lehi Ir. 
 
 Act of Congress of July 26, Co. vs. Moyle, 4 Utah, 327: 9 Pac.
 
 § 207, 208.] RIGHTS OF APPROPRIATORS. 327 
 
 is not necessary; in order that a right of appropriation of 
 waters be entitled to protection under the ninth section of the 
 Act of 1 866, that there should be a union of the three condi- 
 tions therein mentioned; that is, that said right should be 
 recognized by the local customs, laws and decisions of the 
 Courts. All these conditions mentioned therein may not be 
 present in each particular case.^ 
 
 § 208. The Doctrine of Relation as Applied to Patentees. 
 
 — The controversies between appropriators and patentees of 
 the Government, where rights to the land had vested prior to 
 the date of the Act of i866, are as we have seen based upon 
 priority of their respective claims; also, after the passage of 
 that Act priorit}^ is made the basis in all controversies be- 
 tween those who claim the title to the waters of natural 
 streams b}' appropriation merel)-, and those who claim them 
 as riparian owners by virtue of a Government patent to the soil 
 adjoining the stream granted after that law was passed. 
 And again, between these parties, as between those who have 
 simply a possessory right to the waters, he who has the prior 
 has the superior right. Therefore it becomes necessary to 
 ascertain the exact time as to when the riparian rights of a 
 patentee whose lands adjoin a certain stream vests, so as to 
 cut off all subsequent attempts to claim the water by appro- 
 priation from the same stream. As we have seen in a former 
 chapter^ there are various methods provided by Congress by 
 wliich a title to public lands may be acquired by individuals. 
 That is to say, by purchase, military warrants, pre-emption, 
 homestead, desert entry and the like. And, as in the case of 
 appropriation, there are various preliminary steps required by 
 law to be taken by the part)' entering the land by any of these 
 methods. He must enter upon the land and reside there for 
 a certain period of time; he must file his declaration, pay the 
 purchase price, if any is required, and do such similar acts 
 
 Rep. 867; Larimer Co.. vs. People, J in IJroder vs. Natoma Water Co. 
 
 8 Colo. 614; 9 Pac. Rep. 794. loi U. S. 276; Sparrow vs. Strong, 
 
 IBasey vs. Gallaf^lier, 20 Wall. 3 Wall. 97, 777. 
 
 670; Barnes vs. Sabroii, to Nev. -Clinpter \' .Sections 1.12-144. 
 217. See also remarks of Miller,
 
 328 RIGHTS OF APPROPRIATORS. [§ 208, 209 
 
 as the law may in each case require. After he has fulfilled 
 all of the requirements of the law the claimant receives a cer- 
 tificate from the receiver of the local land office to that effect 
 and is entitled to a patent from the Government, which 
 usually after a lapse of considerable time is executed b}' the 
 proper officers in Washington for and in behalf of the United 
 States to the patentee, and forwarded to him through the 
 local land office. Now the authorities are unanimous 
 upon this point, that until the patent is issued, whatever 
 suitable title the claimant ma}- have, the legal title to the 
 land still rem^ains in the Government unless the land be 
 granted by a Congressional grant, in which case it requires 
 no patent.^ The legal title remains in the United States until 
 the patent is issued, but before it is issued and after the per- 
 fection of claimant's right, the United States holds the land 
 in trust for such claimant, and stands in the same position as 
 does any private part}^ who is under contract to convey.^ 
 Hence it follows there can be no question but that upon the 
 issuance of the patent all legal and equitable title in and to the 
 land vests in the patentee; ^ and all appropriations of the water 
 of a stream running over or adjoining the lands of a patentee, 
 subsequent to the date of a patent, must be made subject and 
 subordinate to his riparian rights in those States which rec- 
 ognize those rights.^ 
 
 § 2()S). Same. — Contiuued.— The riparian rights of a pat- 
 entee being fixed beyond all question of doubt, at least at the 
 time of the issuance of his patent, the question now presents 
 
 1 Wilcox vs. McConnell, 13 3 Ibid. Morrow vs. Whitney, 
 
 Peters, 49S; Morrow vs. Whitney, 95 U. S. 551; Whitney vs. Morrow, 
 
 95 U. S. 551; Cornelius vs. Kessel, 112 U. S. 693; McGarrahan vs. 
 
 58 Wis. 237, affirmed in 128 U. S. Mining Co., 96 U. S. 316; Irvine 
 
 456. vs. Irvine, 9 Wall. 617; United 
 
 2Bronson vs. Kukuk, 3 Dill.490; States vs. Stone, 2 Wall. 225; 
 
 United States vs. Freyberg, 32 Brown vs. Huger, 21 How. 305; 
 
 Fed. Rep. 195; Astrom vs. Ham- Warren vs. Van Brunt, 19 Wall, 
 
 mond, 4 McLean, 107; Lindsey vs. 647; Bryan vs. Forsyth, 10 How. 
 
 Hawes, 2 Black. 554; Stark vs. 334; Cowell vs. Colorado Spgs., 
 
 Starr, 6 Wall. 402; Carroll vs. Saf- 100 U. S. 55, 
 
 ford, 3 How. 441; Witherspoon vs. 4 Lux vs. Haggin, 69 Cal. 255; 10 
 
 Duncan, 71 U. S. 210. Pac. Rep. 674.
 
 §209] RIGHTS OF APl'ROPRIATOKS. 329 
 
 itself, is there any point in the stage of the proceedings when 
 the law requires the claimant of the land to take action, prior and 
 preliminary to the securingof his patent, where the equitable 
 title to the land and its incidents vests in the claimant to such 
 a degree that his claim to the riparian rights of the land cuts 
 off all subsequent claims to the waters of the stream- by its ap- 
 propriation ? We are of the opinion that there is a time 
 when the title so vests in the riparian owner in those States 
 and Territories that recognize his common law riparian 
 rights. It has been shown in the previous section that the 
 legal title remains in the United States until the patent is is- 
 sued, but before it is issued and after the perfection of claim- 
 ant's right the United States holds the land in trust for the 
 claimant. That leads us to the question as to wdiat consti- 
 tutes the perfection of claimant's rights ? We will answer 
 this by saying the claimant's rights to the land and its inci- 
 dents become vested and perfect in him when he has duly 
 performed all the statutory requirements which entitle him to 
 a patent from the Government. If, for example, his entry 
 was a pre-emption he must have settled upon the land, filed 
 his application, resided upon the land during the statutory 
 period and finally paid the statutory price before he is en- 
 titled to a patent. However, when he has duly performed all 
 the statutory requirements, including the payment for the 
 land, at that moment, and not until then, is he entitled to a 
 patent. And again, if he made a homestead entry upon the 
 land he must have filed his application and resided upon the 
 land continuously during the time required by statute and 
 complied with all the other requirements of the law necessary 
 in his case before he is entitled to a patent. The claimant 
 under each class of entries must do all that the statute requires, 
 and must "prove up" his claim, pay for the land, if re- 
 quired, and then, and not until then, is he entitled to a cer- 
 tificate of purchase and a patent. But from the time that he 
 files his application for the land — or from the very inception 
 of his title — unless he allows his right to lapse by some non- 
 compliance of the law, he has certain equitable rights in and 
 to the land which the Government is bonnd to respect. Aiul 
 Congress and the Courts, in pursuance (;f the constant ])()licy
 
 330 RIGHTS OF APPROPRIATORS. [§ 209, 210 
 
 of the Government, are bound to protect the rights of those 
 who in good faith have settled upon or improved any portion 
 of the public land as being meritorious and entitled to protec- 
 tion, although those rights were inchoate and imperfect.-^ 
 
 §210. Same — Coiitiimed. — If for example, in i860, A 
 should make a homestead entry by filing his application in 
 the lyand Office for a tract of land over and adjoining which 
 a stream of water ran, and on February the first, 1865, after 
 residing upon the land for the statutory period, should make his 
 final proof to his claim, and in 1867 he should receive his 
 patent, at what period of the transaction would his equitable 
 rights vest as a riparian owner so that all appropriations of 
 the water of the stream after that period would be subject 
 and subsequent to his riparian rights in the same? Do his 
 riparian rights to have the stream flow in its natural channel, 
 as it was wont, vest with his entry on the land, or is there 
 some stage of the proceedings that can be subsequently fixed 
 upon when they will vest? But again, let us suppose that B 
 had first taken steps to appropriate all or a portion of the 
 waters of the stream in 1864 — a year before A had made his 
 final proof — and had completed his appropriation in 1868. Can 
 B hold his appropriation to the water as against A, on the 
 ground that A's title had not vested at the time his appropri- 
 ation was commenced to such a degree that he was entitled to a 
 certificate or patent to the land, from the fact that there were 
 other statutory requirements necessary for A to perform? As 
 we have seen, these rights to water would relate back to the 
 time the first step was taken to appropriate it, in 1864, 
 provided, of course, he had exercised all due and reasonable 
 
 iBroder vs. Natonia Water Co., U. S. 618; Kansas Pac. Ry. Co. vs. 
 
 loi U. S. 274; Atchison vs. Peter- Denmeyer, 113 U. S. 629; St. 
 
 son, 2oWall. 507; Basey vs.Gallagh- Joseph, etc., Ry. Co. vs. Baldwin, 
 
 er, 20 Wall. 670; Forbes vs. 103 U. S. 426; Burnham vs. Star- 
 
 Gracey, 94 U. vS. 762; Wolcott vs. key, 41 Kan. 604; Burlington, etc., 
 
 Des Moines Co., 5 Wall. 681; Wil- Ry. Co. vs. Johnson, 38 Kan. 143; 
 
 liams vs. Baker, 17 Wall. 144; Wi- Lamb vs. Davenport, 18 Wall. 313; 
 
 tiona, etc., Ry. Co. vs. Barney, 113 Rector vs. Gibbon, loi U. S. 276.
 
 §2L0j RIGHTS OF AlM'UOrillATORS. 33L 
 
 diligence in constr ucting his works to complete his appropri- 
 ation and in applying the water to some beneficial use.^ 
 
 Is there any reason in law or in equity why A's rights to 
 the water, as riparian owner, should not also relate back to the 
 date of his entry in i860, in those States where his riparian 
 rights are recognized and protected? "We think not. His 
 location upon the land and B's appropriation of the water are 
 both authorized b^' general statutes of Congress, which were 
 enacted for one purpose — to encourage actual bona fide set- 
 tlers to locate upon the public lands by providing means, in 
 the first place, for settlers to acquire the private ownership 
 of certain tracts; and in the second place, for vsuch settlers to 
 be able to make their lands fertile and productive by giving 
 them the right to divert and use the waters of streams upon 
 them for irrigation. If the locator of the land strictly com- 
 plies with the law, and finally makes his proof, the various 
 steps required by law to be taken are but the integral parts 
 of one continuous transaction ; as much so in fact as the various 
 steps required by law to be taken by the appropriator are parts 
 of another continuous transaction. We are aware of the fact 
 that some very high authorities hold, and others seem to hold, 
 that A's title as against appropriators of the water of the 
 stream would only relate back to February first, 1865, the 
 date of his final proof entitling him to a certificate or patent. 
 Yet, as against other persons claiming the soil itself, the 
 authorities are unanimous in holding that A's rights in and 
 to the same, if he has strictly complied with all the statutory 
 requirements and not allowed his rights to lapse by failing to 
 comply with the law, will relate back to the date of the act of 
 location or the inceptive step taken to secure his title. Is it 
 not inconsistent for some of the Courts to hold that A's right 
 to the soil relates back to his very inception of title, while his 
 rights to the water, which are naturally incident thereto, 
 sTiould only relate back to the time when he made his final 
 proof and completed all the statutory requirements? In other 
 
 1 Ante sections 168, 169, 184 and Maoris vs. Hicknell, 7 Cal. 261; 
 
 authorities citeJ. Osgood vs. Kl Wooliiiaii vs. Carringer, i Mont. 
 
 Dorado \V. Co., 56 Cal. 571; Kelly 535; Atchison vs. Peterson,! Mont, 
 
 vs. Natonia Water Co., 6 Cal. i(;5; 561.
 
 332 IIKIHTS OF APPROl'RIATORS. [§ 210 
 
 words, suppose that A had located upon the land, and had 
 filed his application for the same in i860 — perhaps upon the 
 very account of the added value which the stream would impart 
 to his land if it were permitted to flow undisturbed in its 
 natural course — and had lived upon the land continuously, 
 and strictly complied with all the statutory requirements 
 until 1865, when he was permitted to make his final proof, 
 which he then did, and received his certificate for a patent. 
 And in 1864, a few months before A made his final proof, 
 but four j^ears after the first of his proceedings to locate upon 
 the land, B, without owning or la3-ing claim to any land 
 adjoining the stream, had filed his preliminary notice of 
 appropriation, and had diverted all or nearly all the waters 
 from the stream, to the great injur}' of A's rights as riparian 
 owner. Under these circumstances, is it consistent for the 
 Courts to hold that B had acquired a superior title to those 
 waters to that of A ? Is it equitable, for Courts in juris- 
 dictions where the common law rights of riparian owners 
 in and to the waters of the stream are recognized and pro- 
 tected to hold that B can come in at that late date and 
 deprive A of all his riparian rights in and to the waters of a 
 stream, simpl}- upon the ground that his right in and to this 
 land and the incidents thereto had not vested sufficiently to 
 enable him to protect himself from these appropriations of the 
 water? Yet this is exactly what some Courts have done.^ 
 
 It is well settled and recognized by all the Courts that B's 
 rights as appropriator relate back to the da}' of his first step 
 to appropriate the water. Is it not consistent with law and 
 equity to hold that the riparian rights of A also relate back 
 to the date of his entry upon the land — the very inception of 
 his title? Then, in that case, the principle of priority, which 
 is the foundation of all those who claim a title to those lands 
 and waters which were once a part of our public domain, 
 would remain intact, and A's riparian rights in and to the 
 waters of the stream, if such rights are to be upheld at all in 
 the arid region, being first in time would be superior and 
 paramount to those rights of B under his appropriation. 
 
 1 See Farley vs. vSpriug Valley M. & Ir. Co., 53 Cal. 142.
 
 §211] RIGHTS OF AIM'ROPIMATORS. 333 
 
 § 211. Professor Poiiieroy Tpon Tliis Subject.— Professor 
 
 Pomeroy in his notes to the West Coast Reporter/ in a very 
 able discussion of this important subject, says: " It having 
 been shown that the rights of a patentee from the United 
 States, as a prior purchaser or owner, reLate back at least to 
 the time when he has duly performed all the acts, including 
 payment, which entitle him to a patent, the question still 
 remains whether in fact his rights do not relate back to the 
 date of his first or initiative step in the course of proceedings 
 prescribed by Congress— as in the case of a pre-emptor to the 
 filing of his declaratory statement. 
 
 ' ' This question arises in the construction and application of 
 general statutes of Congress, which were intended to encour- 
 age actual settlers and occupants of the public lands by pro- 
 viding a means for such actual settlers to acquire the private 
 ownership of tracts of land, and for such actual occupants to 
 acquire the right to divert and use thew^ater of streams. The 
 same policy plainly underlies the whole system of legislation. 
 When any conflict arises between parties seeking to avail 
 themselves of these different statutes— between parties seek- 
 ing to acquire tracts of land under one set of statutes and 
 parties seeking to acquire water-rights under another— it would 
 seem to be just and reasonable that the same principle or 
 method of construction and interpretation should be extended 
 to all these statutes in determining the rights of such conflicting 
 claimants. In respect to the appropriator of water on the pub- 
 lic lands, when he has duly posted and given the notices of his 
 appropriation, and has followed up this initiative by proceeding 
 to construct his ditches, dams and other works with reasonable 
 diligence, and without unreasonable delay, his right of appro- 
 priation when his works are thus completed relates back to 
 the date of his first or preliminary act.^ 
 
 "This rule seems to be fully settled. In cases of conflict 
 as to priority of right between such appropriator of water and 
 a patentee of land from the United States it would seem to be 
 just and reasonable that the same rule of interpretation should 
 
 IVol. I, pp. 530, 643; Pomeroy 2 Citing OsKooil vs. IvUloiado, 
 
 Riparian Rights, 38, 39. etc., Co.; 56 Cal. 5/I.
 
 334 RIGHTS OF APPROPRIATORS. [§ 211. 
 
 be extended to the "other similar legislation of Congress by 
 which private persons are authorized to acquire title to por- 
 tions of the public domain as pre-emptors, homestead occu- 
 pants, and the like. Congress has given no intimation of a 
 policy more favorable to the use of water on the public domain 
 than to the use of the public lands for all other beneficial pur- 
 poses. In the absence of decisions it would naturally be sup- 
 posed that the same rule would be applied to all persons who 
 acquire the right under this system of legislation, in determin- 
 ing any conflict which may arise between them." After criti- 
 cally examining the cases cited in the decision of Farley vs. 
 Spring Valle}^ M. & Ir. Co.,Mie concludes the discussion in 
 the following language: "Those cases deal with the interest 
 of a pre-emptor before he obtains a patent, and before he has 
 paid the price, not with his interest by relation after the patent 
 is delivered. Even that inchoate interest is not a mere nullit}'. 
 While it is not in its imperfect condition a perfect and vested 
 right to the land as against the United States, the Supreme 
 Court pronounces it to be an existing right which the Court 
 will protect against third persons who have no superior or 
 equal claims. When are the claims of third persons, derived 
 from other portions of the general system of legislation con- 
 cerning the acquisition of private ownership in the public 
 lands, superior or equal to the inchoate right of the pre-emp- 
 tor ? It seems to me that this question is carefullj^ distin. 
 guished by the decisions above quoted, and excepted from 
 their operation; that those decisions are confined to a special 
 Act of Congress directly withdraiving specific portions of the 
 public lands from the operation of such general legislation as 
 the pre-emption laws, and do not touch upon the effect of the 
 general statutes dealing with the public lands and prescribing 
 the modes by which private titles or interests therein may be 
 acquired." It is quite evident from the last that Professor 
 Pomeroy was undecided in his own mind as to just what was 
 the law upon the subject, fearing to adopt the decision in 
 Farley vs. Spring Valley M. & Ir. Co. as the settled law and 
 not citing any other authorit}^ that sustained a different prin- 
 ciple. As a matter of fact the law upon the point at the time 
 
 I58 Cal. 142.
 
 §211,212] RIGHTS OF APPROPRIATOKS. 335 
 
 he wrote his discussion was iu a very unsettled condition. 
 Decisions upon the question were few, and evidently not at all 
 satisfactory to the writer. 
 
 § 212. Same. — Authorities on Subject Discussed. — Pro- 
 fessor Pomeroy in his discussion clearly indicates that in his 
 opinion the conclusions arrived at by the Court, and which 
 finally led to the decision in the case of Farley vs. Spring 
 Valley M. & Ir. Co.,^ are contrary to the decisions of the 
 Court prior to that time, and contrary to law and equity as 
 between those who claim the waters of a stream upon the pub- 
 lic domain by virtue of their riparian ownership and those 
 who claim the waters of the same stream by virtue of its ap- 
 propriation to some useful purpose. I^et us examine this case 
 in the light, not onlj'- of the decisions rendered prior to the 
 Farley case, but also those rendered after. The facts in the 
 case were these : Farley settled as pre-emptor upon a tract of 
 Government land through which a stream ran, and on Febru- 
 ary 27, 1871, he dulj' filed his declaratory statement, and in 
 1877 made his final proof for the land, and on January 23, 
 1879, duly received his patent. It seems that a reservoir was 
 constructed upon public lands by defendant after the filing of 
 plaintiff's declaratory statement in the year 1871, but whether 
 the defendant diverted any water from the stream or not to 
 the injury of plaintiff's riparian rights does not appear. The 
 action was brought by the plaintiff to recover damages for 
 alleged injuries to his lands, caused by the flooding of them 
 by defendant's reservoir, and for an injunction. The Court 
 decided that " the plaintiff was not entitled to judg- 
 ment against the defendant for damages under the proviso of 
 the ninth section of the Act of July 26. 1866. In the con- 
 struction of its reservoir the defendant did not injure or dam- 
 age or in any way invade the possessions of the plaintiff." The 
 grounds upon which the decision was rendered were: First, the 
 eighty acres claimed by plaintiff was public land of the United 
 States until the plaintiff proved up his claim and paid for the 
 land in 1877; and second, until lie had proved up and paid for 
 
 I58 Cal. 142.
 
 336 RIGHTS OF APPROPRIATORS. [§212, 213 
 
 the land Congress had full power to withdraw the land from 
 sale or to sell or to grant it to another. And the Court cited 
 in support of these two propositions Frisbee vs. Whitney, 9 
 Wall. 187; Hutton vs. Frisbee, 37 Cal. 476; W. P. R. R. Co. 
 vs. Tevis, 41 Cal. 489.^ This case clearly holds to the doc- 
 trine that the rights of a patentee of the United States as 
 against another person claiming rights of way and rights to 
 water flowing over the public lands, under the Acts of 1866 
 and 1870, only relate back to the time when the patentee has 
 performed all of the statutory requisites which entitle him to 
 receive the patent, including his final proof and payment for 
 the land if required. In other words, his riparian rights do 
 not relate back to the time of his filing his preliminary de- 
 claration for the land as against a person appropriating the 
 waters of a stream that flows over or adjoins his lands or 
 claiming rights of way for the same, between the date of his 
 declaration and the final performance of all statutory requis- 
 ites. In the discussion of this most vital question, both to 
 appropriators of water and patentees of the Government, we 
 will divide the subject into three heads: First, a discussion 
 of the decisions following the rule laid down in the Farley 
 case; second, decisions modif3'ing in some particular that 
 case; and third, a discussion of those decisions which are 
 clearlv against the rule laid down in that case. 
 
 § 213. Decisions Following that of Farley ys. S. T. M. & 
 
 Ir. Co. — -The decisions which bear upon this point, and have 
 been decided in exactly the same manner as in the above case, 
 are not very numerous. The point involved, that an ap- 
 propriator may acquire rights to water which flows over or 
 adjoins the lands of a claimant to the same under the laws of 
 the United States, between the date of filing his declarator}- 
 statement and the date of his patent, seems never to have been 
 fairl)^ before the Supreme Court of California since the Farley 
 
 1 As to whether the case was the discussion upon that subject 
 properly decided upon these au- by Professor Pomeroy in section 
 thorities or not, we will refer to 41, Pomeroy on Riparian Rights.
 
 §213] 
 
 RIGHTS OF APPR0PUIAT0R3. 
 
 337 
 
 case was decided, so as to that State the decision rendered in 
 that case is the law upon the subject until it is overruled. ' 
 The case of Ellis vs. Pomeroy Imp. Co., decided by the 
 Supreme Court of the State of Washington, seems even to go 
 farther than the Court in the Farley case. In that case the 
 
 1 But see Lux vs. Haggin, 69 Cal 
 255. Post section 214. 
 
 The case of Osgood vs. El Dor- 
 ado, etc., W. Co., 56 Cal. 572, 
 often cited in this connection, and 
 cited in the Farley case, we do 
 not think applies to the question 
 in hand, as it will be found upon 
 careful investigation to have been 
 decided upon an entirely different 
 point. The facts in that case 
 were that the plaintiff had settled 
 upon a certain tract of public land 
 bordering upon a stream in the 
 year 1863, and had resided there 
 ever since. The land was not sur- 
 veyed by the Government until 
 1S65, and the plaintiff did not file 
 his declaratory statement until 
 June, 1868— three years after the 
 land was surveyed, when under 
 the Act of Congress of 1853 he 
 ought to have filed it within three 
 months after the plat of the sur- 
 vey was returned to the local land 
 ofl5ce. But the plaintiff continued 
 to reside upon the land simply as 
 a squatter until he filed his de- 
 claratory statement in 1868. In 
 June, 1870, he made his final proof 
 and completed his payment, and 
 on October 25, 1871, he received 
 his patent to the land. But the 
 predecessors of the defendant had 
 acquired a right to the waters of 
 the stream that related as far 
 back as 1867, if not back to the 
 year 1856, which was at least one 
 year prior to the time when any 
 right to the land had been ac- 
 
 quired by the plaintiff except 
 simply a squatter's right. And 
 the case was decided upon the 
 point that even if the plaintiff's 
 title did relate back to the date of 
 his declaration in 1868 the de- 
 fendants had still a prior right, 
 which had accrued at least one 
 year earlier, in 1867. But the 
 Court, after stating the facts of 
 the case, said: "On this showing 
 the plaintiff seeks to invoke the 
 doctrine of relation; but for ob- 
 vious reasons no case was made 
 for the application of that doc- 
 trine." And at this point the 
 Court cited the cases of Megerle 
 vs. Ashe, 33 Cal. 74; Daniels vs. 
 Lansdale, 43 Cal. 41; Smith vs. 
 Athern, 34 Cal. 507; Lansdale vs. 
 Daniels, 10 Otto, 118; and after- 
 wards said: "The plaintiff's 
 rights must therefore be held to 
 have attached on the 25th of Oc- 
 tober, 1871, the date of the issu- 
 ance of his patent." The "ob- 
 vious reason "as to why the 
 plaintiff had made no case for the 
 application of the doctrine of rela- 
 tion so as to antedate the rights of 
 the defendants to appropriate the 
 water can be readily seen by re- 
 ferring to the cases cited, where 
 it is helil that before the plat is 
 retimed to the local land office a 
 settler upon the land cannot file 
 his declaratory statement; but 
 under the Act of March 3, 1853, a 
 person to acquire a pre-emption 
 or other right to land must file
 
 338 
 
 RIGHTS OF APPKOPRIATORS. 
 
 [§213 
 
 plaintiff filed upon the land on May 28tli, 1878, made his final 
 proof April 13th, 1880, and received his patent November 
 loth, 1882, the defendant in the Spring of 1878 made an ap- 
 propriation of the water of the stream which ran through 
 plaintiff's land. In an action brought to restrain the defen- 
 
 ihe requisite notice of his claim 
 in the land office for the district 
 within three months after the plat 
 of the survey is returned to the 
 land office. 
 
 In Megerle vs. Ashe, cited in 
 the opinion, Sawyer, J., in con- 
 curring specially upon this point, 
 says: "The date of the filing is 
 important to both parties, for till 
 the lands are finally surveyed the 
 plaintiff was not authorized to file 
 his declaratory statement, and if 
 his declaratory statement was not 
 filed within three months after 
 the filing of the plats in the land 
 office his pre-emption right would 
 not connect itself with his prior 
 possession, and date by relation 
 from the time of his first entry." 
 Thereby clearly inferring at least 
 that if it had been filed in time it 
 would so have related back to the 
 date of the settlement. 
 
 The case of Daniels vs. Lans- 
 dale, cited to support the proposi- 
 tion laid down by the Court, 
 simply decides the question that 
 the filing of the declaratory state- 
 ment in the local office before the 
 plat of the survey is filed is prema- 
 ture and of no effect. 
 
 The case of Smith vs. Athern, 
 if it holds anything, holds just op- 
 posite to the opinion of the Court 
 quoted above in the Osgood case. 
 That was a contest between con- 
 flicting patentees obtaining their 
 patents from the United States 
 and the State of California. The 
 
 plaintiff claimed by virtue of his 
 declaratory statement filed upon 
 the i6th of April, 1856, and settle- 
 ment upon the land in October, in 
 1862, and patent obtained in Oc- 
 tober, 1862, and also a later patent 
 from the State, the land having 
 been surveyed in 1855. The de- 
 fendant claimed the land by vir- 
 tue of the assignor filing on the 
 7th of March, 1856— over one 
 month prior to plaintiff — a school 
 land warrant, and applied for a 
 location thereof on the identical 
 land in contest, which location 
 was approved by the Register of 
 the land office on the loth of the 
 same month. The land warrant 
 by which the defendant claimicd 
 the location was issued by the 
 State for school purposes under 
 the Congressional grant of April, 
 1841, of five hundred thousand 
 acres of land to be selected by the 
 State after the land should be sur- 
 vej'ed by the United States. And 
 he also claimed by a patent issued 
 to him by the State on the 8th of 
 January, 1862. Therefore upon 
 this state of facts the defendant 
 clearl)' had the prior equity to the 
 land, and the Court, in holding 
 that a junior patent, founded on a 
 prior equity, will prevail over an 
 elder patent founded on a junior 
 equity, said: " In cases of con- 
 flicting patents from a paramount 
 source of title it is well settled that, 
 even at common law, in actions of 
 ejectment the Court will look be-
 
 § 213] 
 
 RIGHTS OF APPROPRIATORS. 
 
 339 
 
 dant from appropriating the water judgment was rendered in 
 the trial Court for it, and the plaintiff appealed. The 
 Supreme Court affirmed the judgment, principally, it is true, 
 from the fact that from certain actions of the plaintiflf he was 
 estopped from asserting any claim to the water by virtue of 
 
 hind the patents and ascertain 
 which party had the prior equity. 
 When this is ascertained the 
 equity will attach itself to the 
 legal title, which will take effect 
 by relation at the time when the 
 equity accrued; Thus it often 
 happens that a junior patent, 
 founded on a prior equity, is held 
 even in a Court of law to prevail 
 over an elder patent founded on a 
 junior equity. Citing Ross vs. 
 Barland, i Peters, 655; Bagnell vs. 
 Broderick, 13 Peters, 436. * * * 
 In a contest founded on prior 
 equities dates become in every 
 sense material. To overcome the 
 defendant's equity, which we 
 have seen commenced on the loth 
 of March, 1856, it was incumbent 
 on the plaintiff to show by proof 
 that prior to that time his equity 
 attached by reason of his prior set- 
 tlement upon and occupation of 
 the land under such circumstances 
 as entitled him to pre-empt it, and 
 that he did in fact afterwards take 
 the necessary steps required by 
 law to make his pre-emption ef- 
 fectual. He has failed to make 
 such proof, and his patent cannot 
 cure the omission. * * * The 
 defendant in this case claims 
 under such a patent, which is 
 older than the plaintiff's patent, 
 and the only ground on which the 
 plaintiff can overcome the de- 
 fendant's older legal title, coupled 
 with his equity, is by showing 
 that the plaintiff has a better 
 
 equity arising from his prior oc- 
 cupation and settlement, followed 
 up by proper proceedings to per- 
 fect his pre-emption, and that 
 these proceedings had resulted in 
 a patent." Just how the decision 
 in this case can support the con- 
 clusion of the Court in the Osgood 
 case, that: " The plaintiff's rights 
 must therefore be held to have 
 attached on the 25th of October, 
 1S71, the date of the issuing of his 
 patent," we are unable to see. 
 
 The case of Lansdale vs. Dan- 
 iels, cited by the Court as also 
 sustaining the conclusion quoted, 
 was a contest between two lo- 
 cators upon the same quarter sec- 
 tion of land. The plaintiff made 
 his settlement upon the land on 
 the first day of November, 1853, 
 and the defendant filed his declara- 
 tion and settled on the same quar- 
 ter on the 22nd day of February, 
 1854, the land being still unsur- 
 veyed when the defendant filed 
 his declaration. But the plaintiff, 
 as will be seen from the dates, set- 
 tled upon the land more than 
 four months prior to the settle- 
 ment of the defendant, although 
 he did not file his declaratory 
 statement until the nth day of 
 October, 1858, thus as authority is 
 given to file within three months 
 after the plats of surveys are re- 
 turned to the local land office, 
 which plats are returned on the 
 26th day of April, 1856, and there 
 being no authority whatever to
 
 340 
 
 RIGHTS OF APPROPRIATORS. 
 
 [§ 213 
 
 his patent, but in the opinion upon the general doctrine of 
 relation as between a patentee of the Government and those 
 claimincr the water of a stream which naturally flows over tlie 
 land included in the patent by virtue of an appropriation, the 
 Court said: " But in fact Ellis had no vested right which he 
 could assert against the Company's water right prior to April 
 30th, 1S80, that being the time when he made final proof, 
 while they acquired a vested right prior to this (spring of 
 1878) by exercising an actual appropriation of this water. A 
 mare entry upon the public lands gives no vested rights against 
 
 file upon any land of the United 
 Slates prior to the time when 
 such plat was returned to the local 
 land office; and also that a settler 
 upon unsurveyed lands must file 
 his declaration in the land office 
 within three months after the 
 plat of the survey has been re- 
 turned, both plaintiff's and de- 
 fendant's filings were defective 
 in this, that the plaintiff's filing 
 was too late and the defendant's 
 filing was premature. In an ac- 
 tion for ejectment brought by the 
 plaintiff, which was finally carried 
 to the Supreme Court of the 
 United States, that Court upon 
 the subject of superior equities 
 said: "Nor does the plaintiff 
 rely entirely upon the proposition 
 that his is the superior equity, 
 which of itself is sufficient to show 
 that the judgment below must be 
 affirmed, but it also appears that 
 the parties were fully heard be- 
 fore the Land Department, where 
 the decision was in his favor, and 
 that he now holds the patent for 
 the land, from which it follows 
 that the legal title is in the plaint- 
 iff. Neither of the parties com- 
 plied strictly with the law in filing 
 the declaratory statement; but, 
 
 inasmuch as the plaintiff holds 
 the legal title and the superior 
 equity it is clear that the de- 
 fendant has no such standing in 
 court as will justify a Court of 
 Equity in interfering in his be- 
 half." Thus the Court clearly 
 held that as against all others 
 claiming the land under the Gov- 
 ernment the equity of the plaintiff 
 related back to the time of his set- 
 tlement upon the land. 
 
 So that if tlie conclusion reached 
 b)' the Court in the Osgood case, 
 quoted above, is to be taken to 
 mean generally that the rights to 
 the land and the incidents thereto 
 relate no further back than the 
 date of the patent of a claimant, 
 and the only authorities upon 
 which the Court rests its con- 
 clusion are those cases cited by it, 
 with all due respect to the Su- 
 preme Court of California, we are 
 of the opinion, and a careful ex- 
 amination of those cases will bear 
 us out in our views, that the con- 
 clusion quoted in that case was 
 erroneous. In fact an examina- 
 tion of the records will show that 
 two of the members of the Court 
 dissented from the conclusion 
 reached. See 2 Pac. C. L. J. 332.
 
 § 213.J RIGHTS OF API'UOPIUATOKS. 341 
 
 the Government until the final proof. It makes a prior right 
 of pre-emption and establishes a privilege as against other 
 claimants subject until final proof, etc., to the absolute dis- 
 possessing power of Congress; 9 U. S. St., p. 195. Land thus 
 occupied is subject to the acquisition of prior water rights, 
 under local customs and appropriations. It would also be 
 subject to such acquisition up to the time of final proof, when, 
 and only when, such privilege becomes a vested right. It is 
 up to such time, therefore, subject to the water rights being 
 acquired therein by others, unless such settler or pre-emptor 
 promptly exercises his water right and makes his appropria- 
 tion. * * * Until final proof, then, he had no vested right, 
 and his patent could not, therefore, relate back under any 
 circumstances to his original filing and back of this final 
 proof, while long prior to this, by the actual appropriation in 
 1878, the Company had acquired a positive, certain, and 
 vested right. "^ 
 
 The principles in this case, as set forth above, were affirmed 
 by the Supreme Court of Washington also, in the case of 
 Geddis vs. Parish.^ 
 
 As to whether the conclusions which were reached by 
 the Court in the case of Farle}" vs. Spring Valley M. & 
 Ir. Co. were sustained by the decisions cited in support 
 thereof^ we will refer to . those decisions themselves, and 
 to a discussion upon the subject by Professor Pomeroy.^ He 
 holds that a question other than that of the conflicting 
 rights of two persons claiming the water of streams which once 
 flowed over the public domain, one by virtue of an appropria- 
 tion of the same and the other by virtue of interest in the 
 soil over which the stream ran, was passed upon in the three 
 decisions cited by the Court; and that the question before us 
 was not embraced in them or passed upon by the Court ren- 
 dering those decisions. We are inclined to believe that a 
 
 1 I Wash. 572, 21 Pac. Rep. 27. ^^ I'risbee vs. Whitney, 9 Wall. 
 
 2 1 Wash. 587; 21 Pac. Rep. 314. 1S7; Hiitton vs. Frisbee, 37 Cal. 
 
 See also Gibson vs. Chouteau, 39 475; Western Pac. Ry. Co. vs. 
 
 Mo. 58S; but reversed by Supreme Tevis, 41 Cal. 489. 
 
 Court of the United States in 13 4 i West. Coast. Rep. 531, ,s.v}. 
 Wallace, 92.
 
 342 RIGHTS OF APPROPRIATORS. [§ 213, 214 
 
 careful study of those cases will show that he was correct in 
 his views. 
 
 § 214. Decisions Modifying Rule Laid Down in Farley 
 
 vs. S. V. M. & Ir. Co. — There are a large number of decisions 
 that hold that the rights of a patentee of the Government to 
 the land and all its incidents relate at least as far back as the 
 time when he had dulj^ performed all the statutor}^ require- 
 ments, including the making his final proof and the payment 
 for the land, if necessary; and these decisions differ from or 
 modify to that extent the rule laid down in the Farley case. 
 These cases hold that the water of a stream which flows over 
 or adjoins the land of a person having entered the land for 
 the purpose of securing a patent cannot be appropriated so 
 as to injure the riparian riglits of the claimant between the 
 date of his certificate to the land and the date of his patent, 
 on the ground that the complete equitable title is vested in 
 the claimant, and his rights to all the incidents to the land 
 relate back to the date of the certificate. ^ 
 
 Upon this doctrine of relation Mr. Justice Hillyer, in ren- 
 dering the opinion of the Circuit Court of the United States, 
 in the case of Union M. & M. Co. vs. Dangberg,'-^ said: "A 
 point made by the plaintiff is, that some of the defendants, 
 who have entered and paid for their land and received a cer- 
 tificate of purchase, but no patent as yet, have no title by 
 virtue of which they can claim and exercise riparian rights. 
 It is true that such defendants have not the strict legal title; 
 but it is settled that the entry and payment and certificate 
 thereof convey the equitable title, thereafter the land ceases 
 to be public, and the Government has no right to sell it 
 again, but holds the legal title in trust for the purchaser." 
 And the Court held that one who has entered and paid for 
 the land, and received a certificate of purchase, has the equi- 
 table title and is entitled to riparian rights, although he has 
 not yet received his patent. 
 
 1 See People vs. Slierer, 30 Cal. States, 4 Wall. 232; Gibson vs. 
 
 648; Carroll vs. Safford, 3 How. Chouteau, 13 Wall. 92. 
 
 441; Witherspoon vs. Duncan, 4 2 2 Sawyer, 450, 455. 
 WfiJ'. 210; Hughes vs. United
 
 § 214, 215.] RIGHTS OF APPROPRIATORS. 343 
 
 The Supreme Court of California, in i8S6, in the case ot 
 Lux vs. Haggin,^ modified the rule laid down in the Farley 
 case — although not referring to that opinion in anj- way — as 
 applying to the sale of lands of the State to individuals. The 
 Court said: "While the contract of purchase is recognized by 
 the State authorities as alive the water of a stream flowing 
 through the land cannot be diverted by a mere appropriator. 
 * * * All lands thus contracted for are reserved from the 
 eflfect and operation of an)^ appropriation of water until failure 
 of the purchaser to complete his payments, the completion 
 whereof can be proved by patent issued within the time lim- 
 ited by law. * * * The effect of holding that a valid 
 diversion of water from the lands could be made after part 
 payment therefor, and certificate, would be to deprive 
 them of the moneys paid, or of the benefit of the w^ater, which 
 may have been a principal inducement to the purchase." 
 Just why an individual purchasing land from the State should 
 be protected by the Court of California from the time when 
 he makes his first payment and enters the land — in other 
 words, from the very inception of his title — any more than an 
 individual who enters public lands of the United States located 
 within the State of California, in accordance with the land 
 laws of the United States, should be protected from the very 
 inception of his title we are unable to see. 
 
 § 215. Decisions Holding Clearly Against the Rule in 
 the Farley Case. — In the first place, in controversies against 
 those claiming the same tract of land by virtue of some entry, 
 or even a patent from the Government, the Courts have always 
 held that if all the statutory requirements were properly 
 taken towards the completion of the title the prior equity 
 must prevail, thereby applying the doctrine of relation in 
 controversies between two persons who claimed the same tract 
 of land back to the time of filing the preliminary declaration, 
 or even to the bona fide settlement upon the land — in other 
 words, to tlie very inception of the claimant's title.- Why, 
 
 1 69 Cal. 434-35, 10 Pac. Rep. 674, 113; Opinion of Attorney-General 
 77CJ. MacVea.t^h, i I<an(l Dec. 30; Red 
 
 2 Lansdale vs. Daniels, 100 U. vS. River etc. Ry. Co. vs. Store, 32
 
 344 RIGHTS OF i^PPROPRIATORS. [§215,216. 
 
 then, does not the same rule prevail between persons, one of 
 whom claims the land adjoining the stream, with all the 
 riparian rights of such a locality by virtue of an entry made 
 prior to any appropriation of the waters of the stream, and 
 the other, who claims the water to the stream by virtue of an 
 appropriation of those waters, made subsequently to the entry 
 on the land ? Then again, sustained by a long line of decis- 
 ions of the General Land Office, which in turn are sustained 
 by the Supreme Court, the principle is established that the 
 moment the settler files his preliminary declaration an equity 
 to the land attaches in his favor, which, if he strictl}^ com- 
 plies with the law, must prevail in his favor, not only against 
 the individual laying claim to the same tract of land, subject 
 to the entry of the first, but also against the Government 
 itself. 
 
 § 216. Same.— Ruling of (leneral LjiikI Ottiee Upon the 
 Subject. — In regard to the proposition above stated, Att'y-G-en. 
 MacVeagli, in his letter under date of July 15, 1881, said: ^ "In 
 regard to the case of a homestead settlement the claim of a 
 settler is initiated by an entry of the land. This is effected 
 by making an application at the proper land office, filing the 
 affidavit, and paying the amount required by section 2290 
 Revised Statutes, and also paying the commission as required 
 by section 2238 Revised Statutes. It is true a certificate of 
 entr}'- is not then given, the certificate being, under section 
 2291 Revised Statutes, withheld until the expiration of five 
 j^ears from the date of such entry. At the end of which 
 period, upon proof of settlement and cultivation during that 
 period, and payment of the commissions remaining to be 
 paid, is issued. But upon the entry a right in favor of the 
 settler would seem to attach to the land, which is liable to be 
 defeated only by failure on his part to comply with require- 
 ments of the homestead law in regard to settlement and 
 
 Minn, 95; White vs. Hastings, etc. berry, 121 U. S. 4S8; Schulenberg 
 
 Ry. Co. 2 Copp's Pub. I^and Laws, vs. Harriman, 88 U. vS. 44; Shepley 
 
 878; Meggerle vs. Ashe, 33 Cal. 74; vs. Cowan, 91 U. S. 330. 
 
 Ryan vs. Central Pac. Ry. Co., 1 Land Dec. 31, 32. 
 99 IT. S. 382; Wright vs. Rose-
 
 § 216, 217] RIGHTS OF APPROPUIATORS. 345 
 
 cultivation. This right amounts to an equitable interest in 
 the land, subject to the future performance by the settler of 
 certain conditions (in the event of which he becomes invested 
 with full and complete ownership), and until forfeited by 
 failure to perform the conditions it must, I think, prcrai/ not 
 only against individuals but against the Government.'' This 
 line of decisions also settled the question that lands originally 
 public ceased to be public after they had been entered by 
 claimants at the land office.^ 
 
 § 217. Same.— General Laud Ollice Sustained by the Su- 
 preme Court of the United States.— Upon this important ques- 
 tion in the contest before the General I^and Office of Graham 
 vs. Hastings D. Ry. Co. ,2 Secretary Teller held: "that an entry 
 of record which on its face is valid, reserves the land covered 
 thereby from the operation of any subsequent law, grant or 
 sale, until a forfeiture is declared and the land restored to the 
 public domain." And in an action brought by the railway 
 company in the District Court to recover the land the Court 
 decided adversely to the decision of the General Laud Office. 
 But the Supreme Court of the State of Minnesota reversed the 
 decision of the trial Court and the case was again appealed, 
 this time to the Supreme Court of the United States, which 
 Court affirmed the decision of the Supreme Court of Minne- 
 sota and held that lands originally public ceased to be public 
 after they have been entered at the Land Office, and a certifi- 
 cate of entry has been obtained. Thus the last two Courts 
 held with the decision rendered in the General Land Office, and 
 sustained the opinion therein laid down by the Secretary. 
 And Mr. Justice Lamar, speaking for the Supreme Court of 
 the United States, in rendering the opinion said: "It is true 
 
 1 See also St. Paul etc. Ry. Co. hall, 4 I-i"J ^^"^^ 249- See also 
 
 vs. Fonseth, 3 Land Dec. 146; Shepley vs. Cowan, 91 U. S. 33°. 
 
 Southern Minn. Ry. Co. vs. Gal- where it was held that the patent 
 
 lipean, 3 Land Dec. 166; Hastings which is afterwards issued relates 
 
 etc. Ry. Co. vs. United States, 3 »>ack to the initiatory act and cuts 
 
 Land Dec. 479; St. Paul etc. Ry. off all inlerveniuK claims. 
 
 Co. vs. Leach, 3 Land Dec. 506; 2i Land Dec. 362. 
 Hastings etc. Ry. Co. vs. White-
 
 346 IlIGHTS OF ArPROPRIATORS. [§ 21*7, 218 
 
 that the decisions of the I^and Department on matters of law 
 are not binding upon this Court in any sense, but on questions 
 similar to the ones involved in this case they are entitled to 
 great respect at the hands of any Court. In United States 
 vs. Moore, 95 U. S. 760, this Court said: ' The construction 
 given to a statute by those charged with the duty of executing 
 it is always entitled to the most respectful consideration, and 
 ought not to be overruled without cogent reasons. * * * The 
 officers concerned are usually able men and masters of the 
 subject, not unfrequently they are the draftsmen of the laws 
 they are afterwards called upon to interpret.' " ^ 
 
 From these authorities, it is well settled that from 
 the moment an entry upon a tract of public land is made, 
 the land ceases to be public and is reserved by such entry 
 from the operation of any law, grant or sale, and made sub- 
 ject to that entry. Hence, in drawing our conclusions from 
 the above, it follows that if after the entry the land ceases to 
 be public land it must become private land, and all the inci- 
 dents thereto must become private incidents held in trust by 
 the Government until the claimant shall have performed all 
 the statutory requirements. And the waters which flow over 
 or adjoin that land as an incident thereto, if the}' have not 
 been appropriated prior to the time of the very inception of 
 the claimant's title, in those jurisdictions where the common 
 law rules upon the subject of riparian rights are recognized 
 and protected, must become private incidents to the land; and 
 if appropriated subsequent to the inception of the title of the 
 claimant of the land such appropriation must be held sub- 
 ject to the riparian rights of such claimant. 
 
 § 218. Same.— Discussion Conlimietl. — It is held in a 
 great many cases that the law gives the use of the water 
 which runs through his farm to a party taking up the land. 
 To make another party a' prior appropriator he must have 
 taken out the water under a claim of right while the land was 
 
 1 132 U. S. 357, 367. States vs. Burlington, etc., Ry. 
 
 See also on point Brown vs. Co., 98 U. S. 334, 341; Kansas 
 
 United States, 113 U. S. 568, 571; Pac. Ry. Co. vs. Atchison, etc., 
 
 and cases there cited. United Ry. Co., 112 U. S. 414, 418.
 
 § 218, 219] RIGHTS OF APPROPRIATORS. 347 
 
 Still in the possession of the Government, and before any claim 
 or settlement had been made upon the same.^ And the 
 Supreme Court of the United States, in a great many cases, 
 has recognized the prior possession of claimants to land 
 against intruders and trespassers.- Why do not the Courts 
 apply the same rule to the incidents to the land? This would 
 bring all claimants to water upon the public domain of the 
 United States since the passage of the law of July 26th, 1866, 
 upon an equality, regardless as to whether the water was 
 claimed by virtue of appropriation of the same, or by virtue 
 of the ownership of the land through which or adjoining 
 which the stream flow^s. The great principle which governs 
 all other controversies between different claimants to the same 
 tract of land, and between different appropriators of the water 
 of the stream upon the public domain, would then also govern 
 all controversies between those who claim the land and those 
 who claim the water flowing over the land; that is to say, he 
 who has the prior has the superior right. That was evidently 
 the intent of Congress when it passed the general statutes 
 that govern both the land and the water, and as we shall see 
 in the next section, the Supreme Court of the United States 
 in a very recent case has settled this very difficult and impor- 
 tant question. 
 
 § 21S). Same.— StuiT vs. Beck.^ —It was not until the 
 above entitled case was brought before the Supreme Court of 
 the United States that that body had the opportunity to ex- 
 amine into and decide the exact question in point. That is to 
 say, whether the rights of a bona fide settler upon the public 
 lands so relate back from the date of his patent to the date of 
 his actual settlement upon the land or to his filing his declara- 
 tory statement, as the case may be — to the very inception of 
 his title — so that all appropriations of water made from a 
 
 1 Union M. & M. Co. vs. Dang- 307; Trtnoutli vs. San l-rancisco 
 
 berjr, 2 Saw. 455; Lux vs. Ila^Rin, Co., 100 U. S. 251; Durand vs. 
 
 69 Cal. 255; Weiss vs. Oregon I. & Martin, 120 U. vS. 366; Cliuuny vs. 
 
 S. Co., 13 Or. 496. Culvcrson, 5 Sawyer, 605; Mower 
 
 SAtherton vs. Fowler, 96 U. S. vs. l-letcher, 116 U. S. 3:'>i. 
 
 513; Lamb v>. Davenport, 85 U. S. •* 133 ^'- '^- 5U-
 
 348 RIGHTS OF APPROPRIATORS. [§ 219 
 
 stream that flows over or adjoins the tract of land of the 
 patentee, which was made between the first inception of his 
 title and the date of his patent, should be subsequent and sub- 
 ject to his riparian rights. Or in other words, whether a per- 
 son could acquire rights in and to the waters of the stream by- 
 virtue of an appropriation of the same at any time between 
 the inception of the title of the patentee and the date of his 
 patent, so that those rights would be prior to the riparian 
 rights of the patentee. The above case, decided on March 3, 
 1890, was the first case brought before that honorable Court 
 wherein the exact question was decided; and it fell to the lot 
 of the present Chief Justice, Mr. Justice Fuller, to write the 
 opinion in that case, which was done in a manner so satis- 
 factory that not a Justice dissented. 
 
 The facts in that case were as follows: The suit was brought 
 by Daniel Sturr in a District Court of the Territory of Dakota, 
 seeking an injunction against the defendant from interfering 
 with an alleged water right and ditch of the complainant and 
 the use of the waters of a certain creek through the same. 
 The following is the substance of the findings of facts, and is 
 all of those found by the Court necessary to state here: 
 Second. That one John Smith made a homestead entry of a 
 certain tract of land on the 25th day of March, 1879, and 
 thereafter made his final proof on the loth day of May, 1883, 
 having settled on the land in 1877, and for which a United 
 States patent was issued to him December 20, 1883. He had 
 resided on the land continuously from the date of his settle- 
 ment until he sold to defendant Beck, in May, 1884. Third. 
 That on or about the 15th day of May, 1880, the plaintiff 
 Sturr, without any grant from Smith, went upon the home- 
 stead claim of Smith and located a water right, claiming' the 
 right to divert five hundred inches of the waters of a certain 
 stream then and long prior thereto flowing over and across 
 said land of Smith in its natural channel, and to carry the 
 same by means of a ditch upon his own homestead claim im- 
 mediately adjoining Smith's land, but not the stream. 
 Fifth. Having posted the notice immediately thereafter, the 
 plaiutifi" constructed a ditch across the John Smith homestead 
 and diverted and conveved not less than three hundred inches
 
 § 219] RIGHTS OF APPROPUIATORS. 349 
 
 of the waters of said stream for the purpose of irrigating his 
 own lands until interfered with by the defendant in the sum- 
 mer of 1 886. Seventh. That in the spring of i886 the de- 
 fendant Beck, having purchased Smith's land, notified the 
 plaintiff Sturr to cease diverting the waters of the stream 
 from their natural channel upon defendant's land, and also 
 forbade him maintaining his ditch upon defendant's land for 
 that purpose. Eighth. That the custom existing, and which 
 has existed in Lawrence County ever since its settlement, rec- 
 ognizes and acknowledges the right to locate water rights and 
 to divert, appropriate and use the waters of flowing streams 
 for purposes of irrigation, when such diversion and use does 
 not conflict or interfere with the rights vested and accrued 
 prior thereto. Ninth. That neither Smith nor defendant Beck 
 had ever appropriated and diverted the waters from the stream. 
 Eleventh. That the use of said water for irrigation is beneficial 
 and valuable to the person or persons owning or possessing 
 the same. 
 
 The conclusions of law were: First. That at the time of 
 location of the water right made upon Smith's homestead by 
 Sturr, in May, i88o, a prior right to have the waters of said 
 stream flow in the regular channel of said creek over and 
 across said land had vested in Smith by virtue of his home- 
 stead entry made on the 25th day of March, 1879. Second. 
 That said vested right, so acquired by Smith, was conveyed 
 to defendant Beck on May ist, 1884. Third. That the plaint- 
 iflf Sturr by his location and diversion of the waters of said 
 stream so made by him as aforesaid, acquired no right as 
 against said defendant Beck to divert said waters or maintain 
 said ditch upon defendant's land for that purpose. Fourth. 
 That the patent issued to John Smith for the premises men- 
 tioned related back to the date of his making his homestead 
 filing or entry of said premises, on the 25th day of March, 
 1879. Fifth. That the plaintiff take nothing by this action. 
 Judgment was accordingly entered in favor of the defendant, 
 dismissing the complaint upon its merits and awarding costs. 
 The plaintiff tliereupon appealed to the Supreme Court of the 
 Territory. The judgment of the District Court was afTirmcd 
 by the Supreme Court, which without deigning to discuss the
 
 350 RIGHTS OF APPROPRTATORS. [§ 219 
 
 matter, rendered the following opinion:^ ''Per Curiam. The 
 judgment is affirmed. The Court holds that the homesteader 
 was the prior appropriator of the water right, and the plaintiff 
 had no right to enter upon the prior possession of the entry 
 made under his homestead entry and appropriate any portion 
 of the running streams or creeks thereof." An appeal of 
 the case was then taken to the Supreme Court of the United 
 
 States. 
 
 At this point we wish to call special attention to the facts 
 in this case and those in the case of Farley \s. Spring Valley 
 M. & M. Co.,^ the one under discussion. These cases are al- 
 most identically the same. Both Sturr and the Mining and Ir- 
 rigating Company appropriated the water between the date of 
 the filing of the declaratoyy statement and the date of making 
 finalproof of the respective claimants. And we also wish to call 
 attention to the point that the case was submitted to the Su- 
 preme Court of the United States by the appellant upon a 
 brief that included upon the point in question, a citation to 
 the Farley case, the Osgood case, the Washington cases cited 
 above and every other case decided that had any bearing upon 
 their side of the question. So the appellant, and all those 
 holding his side of the question, cannot complain that the 
 case was not carefully submitted. ^ 
 
 1 50 N. W. Rep. 4S6. mum price of the land is received 
 
 2 rS Cal. 142. in the one case and final proof is 
 
 3 The following were the cases made in the other. 
 
 cited in appellant's brief upon the Sitnmonds vs. Wagner, loi U. 
 
 various subjects: That until it S. 260; Frisbie vs. Whitney, 9 
 
 parts with its ownership the Gov- Wall. 194-196; Yosemite Valley 
 
 ernment is the riparian proprietor Case, 15 Wall. 77; U. S. vs. Storrs, 
 
 of the public lands. 14 Fed. Rep. 824; U. S. vs. Lane, 19 
 
 Atchison vs. Peterson, 20 Wall. Fed. Rep. 910; U. S. vs. Freyberg, 
 
 510; Irwine vs. Phillips, 5 Cal. 32 Fed. Rep. 196; U. S. vs. Taylor, 
 
 140; Butte C. & D. Co. vs. Vaughn, 35 Fed. Rep. 484; Hammond vs. 
 
 II Cal. 143; Ortman vs. Dixon, 13 Rose, 11 Colo. 524; Moriarity vs. 
 
 Cal. 33; Basey vs. Gallagher, 20 Boone Co., 39 Iowa, 654; Flint & 
 
 Wall. 681; Broder vs. Natouia P. M. R. vs. Gordon, 41 Mich. 420; 
 
 Water Co., loi U. S. 276. French vs. Spencer, 21 How. 228; 
 
 That neither pre-emption, set- Shepley vs. Cowan, 91 U. S. 337; 
 
 tlement nor homestead entry af- Johnson vs. Ballon, 28 Mich. 379; 
 
 fects seo-regation until the mini- Osgood vs. El Dorado M. & M.
 
 § 219] RIGHTS OF APPROPRIATORS. oSl 
 
 Yet the Supreme Court of the United States, after a most 
 careful consideration, affirmed the judgment of the Supreme 
 Court of Dakota, and Mr. Chief Justice Fuller, after stating 
 the facts in the case, in the opinion said: " It is not contended 
 on behalf of Sturr that he is entitled to maintain the ditch 
 because he constructed and used it, or that Smith's acquies- 
 cence amounted to anything more than a revocable license; 
 there was no grant nor an adverse enjoyment so long continued 
 as to raise a legal presumption of a grant. But it is insisted 
 that the doctrine of prior appropriation of zoater on the public 
 la7id and its beneficial use protects him from interference because 
 neither Smith nor Beck made any water right location claim- 
 ing the waters of False Water Creek, and had never diverted 
 the water prior to Sturr 's location. 
 
 "If, however. Smith obtained a vested right to have the 
 creek flow in its natural channel by virtue of his homestead 
 entry of March 25th, 1879, and the possession thereunder, 
 or if his patent took effect as against Sturr, by relation as of 
 that date, then it is conceded that Sturr cannot prevail and 
 the judgment must be affirmed. 
 
 "The right of a riparian proprietor of land bordering upon 
 
 Co., 56 Cal. 571; Farley vs. Spring Jackson vs. Bard, 4 Johns, 230, 
 
 Valley M. Co., 58 Cal. 142; Tenem 234; Jackson vs. Bull, i Johns 
 
 Ditch Co. vs. Thorpe (Wash.), 20 Cas. 85; Heath vs. Ross, 12 Johns, 
 
 Pac. Rep. 588; Ellis vs. Pomeroy 140; Tenem Ditch Co. vs. Thorpe, 
 
 Imp. Co. (Wash.), 21 Pac. Rep. 27; 20 Pac. Rep. 58S; Lynch vs. De 
 
 Geddis vs. Parish (Wash.), 21 Pac. Bcrnal,' 9 Wall. 315; Gibson vs. 
 
 Rep. 314. Chouteau, 13 Wall. loi; Meggerle 
 
 That a mere right of pre-emp- vs. Ashe, 33 Cal. 74; Smith vs. 
 
 tion is not a title. Athern, 34 Cal. 506; Daniels vs. 
 
 People vs. Shearer, 30 Cal. 648; Lansdale, 43 Cal. 41; 100 U. S. 
 
 Hutton vs. Frisbee. 37 Cal. 491; 113; Belk vs. Meagher, 104 U. S. 
 
 Western P. R. Co. vs. Tevis, 41 283. 
 
 Cal. 492; Lowe vs. Hutchins, 41 That Congress intended to rec- 
 
 Cal. 634; Frisbie vs. Whitney, 9 ognize as valid the customary law 
 
 Wall. 187. with respect to the use of water, 
 
 That the doctrine of relation is which had grown up among the 
 
 a fiction of law for the further- occupants of the public lands 
 
 ance of justice, but is not ad- under the peculiar necessities of 
 
 mitted to the prejudice of third their condition, 
 
 parties having any right. Basey vs. Gallagher, 20 Wall. 
 
 683, 6S4.
 
 332 RIGHTS OF APPROPRIATORS. [§ 219 
 
 a running stream to the benefit to be derived from the flow of 
 its waters as a natural incident to or one of the elements of 
 his estate, and that it cannot be lawfully diverted against his 
 consent is not denied, nor does the controversy relate to the 
 just and reasonable use as between riparian proprietors. The 
 question raised is whether Smith occupied the position of a 
 riparian proprietor or a prior appropriator, as between him- 
 self and Sturr, when the latter undertook to locate his alleged 
 water right. At that time Smith had been in possession for 
 three years, and his homestead entry had been made over a 
 year. 
 
 "A claim of the homestead settler, such as Smith's, is 
 initiated by an entry of the land, which is effected by making 
 an application at the proper land ofl&ce, filing the affidavit 
 and paying the amounts required by sections 2238 and 2290 
 of the Revised Statutes. * * * The ruling of the Land 
 Department has been that if the homestead settlers shall fully 
 comply with the law as to continuous residence and cultiva- 
 tion the settlement defeats all claims intervening between its 
 date and the date of filing his homestead entry, and in making 
 final proof his five years of residence and cultivation will 
 commence from the date of actual settlement." Then after 
 citing section 2297 of the Revised Statutes, and the opinion 
 of Attorney General MacVeagh upon the subject, quoted 
 above, ^ he said: "And many rulings of the Interior Depart- 
 ment sustain this view. These official utterances are entitled 
 to great respect at the hands of this Court, as remarked by 
 Mr. Justice Lamar in Hastings & Dakota R. Co. vs. Whitney, 
 132 U. S. 357, 366." And upon the subject of entry and 
 settlement of the land, the Court endorsed the doctrine as 
 laid down in Witherspoon vs. Duncan, ^ in which Mr. Justice 
 Davis, speaking for the Court, said: " In no just sense can 
 lands be said to be public lands after they have been entered 
 at the Land Office and a certificate of entry obtained. If 
 public lands before the entry, after it they are private prop- 
 erty. * * * The contract of purchase is complete when 
 the certificate of entry is executed and delivered, and there- 
 
 3 I Land Dec. 50; Ante Section -4 Wall. 210, 218. 
 
 216.
 
 §219] RIGHTS OF Al'PROPRIATORS. 353 
 
 after the land ceases to be a part of the public domain. The 
 Government agrees to make proper conveyance as soon as it 
 can, and in the meantime holds the naked legal tee in trust 
 for the purchaser, who has the equitable title.' It may be 
 said that this language refers to the certificate issued on final 
 proofs, but if the word ' entry ' as applied to the appropria- 
 tions of land means that act by which an individual acquires 
 an inceptive right to a portion of the unappropriated soil of 
 the country by filing his claim, ^ the principle has a wider 
 scope. * * * And as to the mere settlement with the 
 intention of obtaining title under the pre-emption laws, while 
 it has been held that no vested right in the land as against 
 the United States is acquired until all the prerequisites for 
 the acquisition of title have been complied with, yet rights in 
 parties as against each other tvere fully recognized as ex/sling, 
 based iipon priority in the initiatory steps when followed np to a 
 patent. ' The patent which is afterwards issued relates back to 
 the date of the initiatory act, and cuts off" all intervening 
 claimants.' " ^ 
 
 And, after quoting and commenting upon the ninth section 
 of the Act of Congress of July 26th, 1866, and the Act of July 
 9th, 1870, the Court continued: "When, however, the Gov- 
 ernment ceases to be the sole proprietor the right of the ri- 
 parian proprietor attaches, and cannot be subsequently in- 
 vaded. As the riparian owner has the right to have the 
 water flow ut cicrrere solebat, undiminished except by reason- 
 able consumption of upper proprietors, and no subsequent at- 
 tempt to take the water only can override the prior appropria- 
 tion 0/ both land and water, it would seem reasonable that law- 
 ful riparian occupancy with intent to appropriate the land 
 should have the same effect." 
 
 And, after quoting the section of the Dakota statute ap- 
 plicable to the case,^ which simply recognizes the general 
 right of appropriation of water for beneficial purposes, pro- 
 vided it does not interfere with a prior right or claim to such 
 
 1 Citing Chotard vs. Pope, 12 3l,evisec's Dakota Co:lcs, Sec- 
 
 Wheat. 586, 5S8. ond Ivlilion, Sees. 255, 527, 650. 
 
 2 Citing Shepley vs. Cowan, 91 
 U. S. 330, 337.
 
 354 RIGHTS OF APPROPRIATORS. [§ 219, 220- 
 
 waters, the Court concluded the opinion as follows: " The 
 local custom is set forth in the findings to have consisted in 
 the recognition and acknowledgment of ' the right to locate 
 water rights, and to divert, appropriate and use the waters of 
 flowing streams for purposes of irrigation, when such location, 
 diversion and use does not conflict or interfere with rights 
 vested and accrued prior thereto.' 
 
 "Thus under the laws of Congress and the Territory and 
 under the applicable custom, priority of possession gave pri- 
 ority of right. The question is not as to the extent of Smith's 
 interest in the homestead as against the Government, but 
 whether as against Sturr his lawful occupancy under settle- 
 ment and entrj' 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 efiect. 
 
 "The judgment is affirmed. "^ 
 
 §220. Same.— Concluding Remarks on the Subject.— The 
 
 case of Sturr vs. Beck, covering as it does so completely every 
 point under discussion, has undoubtedh' settled the law upon 
 this formerly troublesome but very important question. It 
 also settles the law that there are in certain jurisdictions 
 which recognize and protect the common law theories of 
 riparian rights in the arid region two distinct water systems 
 — one based upon a possessory right by the mere appropriation 
 of the water to some beneficial use or purpose, and the other 
 based upon the ownership of the land through or adjoining 
 which the stream flows. This also settles the case that except 
 in those States and Territories which have enacted statutory 
 provisions abolishing what is known as the common law 
 riparian rights — the effect of which will be discussed in a later 
 portion of this work — those riparian rights vesting by rela- 
 tion to the very inception of the patentee's title to the land 
 will be protected by the highest judicial tribunal in the coun- 
 try, as against all subsequent appropriation of water naturally 
 flowing over or adjoining the land. For, as Mr. Chief Justice 
 
 1 See late case of Faul vs. Cooke, ig Oregon, 455; 26 Pac. Rep. 662.
 
 §220,221] RIGHTS OF APPROPRIATORS. 355 
 
 Fuller said in the opinion of this case, "no subsequent attempt 
 to take the water only can override the prior appropriation of 
 both land and water." This decision settles the question 
 regarding a tract of land formerly upon the public domain of 
 the United States, but which tract was duly entered under 
 some general statute of Congress by some bona fide settler, 
 whose entry was prosecuted to a patent, that his title relates 
 back to the very inception of his acts for acquiring it. It also 
 settles the law to mean that if the settlement is made prior to 
 an}" appropriation of the waters of the stream that flows over 
 the land, all appropriations of the same subsequent to that 
 date are subject to the riparian rights of the patentee of the 
 land. But, upon the other hand, if an appropriation of the 
 waters of the stream which flow over or adjoin the tract of 
 land has been made prior to the date of settlement or entry of 
 the patentee, then in that case the appropriator has the prior 
 right, and the rights of the patentee as riparian owner are 
 subsequent and subject to the rights of the appropriator. 
 
 With respect to all controversies arising which involve 
 claims to water which have vested since the Act of July 26, 
 1866, whether those controversies arise between those who 
 claim the water of the same stream by appropriation merely, 
 or between those who claim the water by virtue of a patent 
 to the land over which or adjoining which the stream flows; 
 or controversies arising between those wlio claim the water by 
 appropriation and those who claim it by virtue of their patent, 
 the law is now settled to be uniform and to be " that he who 
 has the prior, has the superior right." ^ 
 
 § 221. Summar.v of Ciuipler. — The conclusions from the 
 foregoing chapter may be summed up as follows: First, 
 respecting controversies as to rights acquired b>- appropria- 
 tors to the waters of a stream flowing over the public domain 
 against other appropriators, he has the best right who is first 
 in time, to the extent of his appropriation; that the rights of 
 the first appropriator are fixed by the extent of his appropri- 
 ation, and that others may appropriate the water that is left 
 
 1 As to controversies of rijjhUs of virtue of some forei;,'ii g:r.iiil see 
 those vk^ho claiTii the waters by Sees. 289-292.
 
 356 RIGHTS OF APPROPRIATORS. [§ 221 
 
 flowing in the stream, provided no interference with the 
 rights of the first or injury of the same is thereby caused; 
 that there is no difference in principle between appropriations 
 measured by time and those measured by volume. Hence, it 
 follows that if a certain portion of the water is appropriated 
 for certain days, or for a certain time of the day, by the first 
 appropriator, others following may not only appropriate the 
 surplus in whole or in part, but may also use the quantity of 
 water appropriated by the first at such times as it is not 
 needed and used by him; that in controversies between 
 appropriators their rights relate back from the date of their 
 perfected appropriation to the time of giving notice, or to the 
 time when the first step was taken to make the appropriation; 
 provided, that from the time of that first step all due and 
 reasonable diligence was used to complete the appropriation 
 which must culminate in the application of all the water 
 diverted to some beneficial use or purpose. 
 
 Second, in all controversies regarding the rights of those 
 who claim the waters of streams by appropriation merely, as 
 against the rights of a Congressional grantee, the appropri- 
 ator of the waters, if he is first in time, has the exclusive right 
 to use the water to the extent of his appropriation; but that 
 the grantee can claim the riparian rights to the water, if he 
 is first in time, in those jurisdictions where such rights are 
 recognized; that the rights of the grantee, where the grant is 
 made by an act of Congress, in the case of a railroad corpora- 
 tion, relates back to the time when the route of the road is 
 "definitely fixed," as against appropriators of water subse- 
 quent to that time; but that prior to the time when the route 
 is "definitely fixed" the waters of the natural streams or lakes 
 upon the tract granted may be appropriated. 
 
 Third, as between those claiming the land by virtue of 
 conflicting grants, priority of the date of the act of Congress, 
 and not priority of the location of the line of the road, gives 
 priority of title to the land and all the incidents thereto. 
 
 Fourth, in all controversies between the rights acquired by 
 the appropriation of waters upon the public domain, as against 
 the riparian rights of settlers, in the arid regions as in other 
 parts of the country, the common law principles of riparian
 
 §221] RIGHTS OF APPROPRIATORS. 3:)7 
 
 rights, in several jurisdictions, still exists to a certain extent. 
 Prior to the first act of Congress upon the subject, on the 26th 
 of July, 1 866, there was no statute law which tended in any 
 way to limit the rights of a patentee of the Government to the 
 land or any of its incidents. The appropriator of waters upon 
 those lands simply held their title to the same by virtue of 
 the customs, laws, and decisions of the Court, which were 
 ratified and confirmed by the act of Congress of 1866. 
 Authorities differ upon the point whether priority of appro- 
 priation gave a superior right as against a patent issued 
 before that act, but the later decisions hold that it did give 
 such a right. After tbe act of 1866 there is no question upon 
 the point that where a person acquires any title to the land 
 from the United States, and prior to that acquisition of title, 
 the whole or some part of the waters of a stream or lake run- 
 ning through or adjoining that tract of land had been appro- 
 priated for some useful purpose, the patentee takes the title 
 to the land subject to the rights acquired by such appropria- 
 tion. In all controversies as to their respective rights between 
 the appropriator of water and a patentee of the land through 
 which or adjoining which the stream flows, the rights of the 
 patentee date, by the doctrine of relation, from the date of 
 the patent back to the time of the actual settlement upon the 
 land, or the filing of the preliminary declaration — that is to 
 say, back to the very inception of the patentee's equitable 
 title to the land, provided he has strictly complied with all 
 the requirements of the law.
 
 CHAPTER VIII. 
 
 Nature and Extent of Rights Acquired to Waters in the 
 Arid Region by Appropriators. 
 
 222. Extent of subject treated in 
 
 chapter. 
 
 T. RIGHTS ACQUIRED BY VIRTU K 
 
 OF AN APPROPRIATION OF THE 
 
 WATERS OF STREAMS OR 
 
 IvAKES. 
 
 223. What is a water right ? 
 
 224. Property in ditches and 
 
 canals. 
 
 225. Amount of water that may be 
 
 diverted. 
 
 226. Same. — Authorities dis- 
 
 cussed. 
 
 227. Same. — Same. — Continued. 
 
 228. Other authorities on point. 
 
 229. Same. — Continued. 
 
 230. How extent of right is deter- 
 
 mined. 
 
 231. Special purpose often deter- 
 
 mines extent. 
 
 232. Same. — Authorities dis- 
 
 cussed. 
 
 233. Change of use. 
 
 234. Same. — A uthorities con- 
 
 tinued. 
 
 235. Amount actually needed for 
 
 purpose of appropriation. 
 
 236. Authorities on subject. 
 
 237. Same. — Continued. 
 
 238. Appropriator not limited to 
 
 first amount used. 
 
 239. Same. — Continued. 
 
 I Section.— 
 
 240. Theory of " Equitable Divis- 
 i ion" of water controverted. 
 
 241. Same. — Basey vs. Gallagher, 
 
 construed on suliject 
 
 242. Hillman vs. Hardwick et al. 
 
 243. Right to remove obstructions 
 
 from stream and ditch. 
 
 244. Repair of ditches. 
 
 245. Injury to ditches by owner of 
 
 land. 
 
 246. Appropriator's right to use 
 
 natural bed of stream to 
 convey the water. 
 
 247. Point where property right of 
 
 appropriator begins. 
 
 248. Point of diversion may be 
 
 changed. 
 
 249. Right to natural flow of wa- 
 
 ter at head of appropriator's 
 ditch. 
 
 250. Pollution. 
 
 251. Same. — Aiithorities on sub- 
 
 ject. 
 
 252. Same. — Continued. 
 
 II. DOCTRINE OF ABANDONMENT. 
 
 253. Doctrine of abandonment in 
 
 general. — Express abandon- 
 ment. 
 
 254. Express abandonment contin- 
 
 ued. — Implied abandon- 
 ment.
 
 § 222, 223] NATURE A>«'D EXTENT OF RIGHTS. 
 
 359 
 
 255. Implied abandonment con- 
 
 tinued. 
 
 256. Abandonment b\- adverse pos- 
 
 session. 
 
 257. Same. — When abandonment 
 
 presumed. 
 25S. Same. — Continued. 
 
 259. Effect of an abandonment. 
 III. DOCTRINK OF ESTOPPEL. 
 
 260. Kstoppel in Pais, as applied 
 
 to water rights. 
 
 261. Same. — Authorities on sub- 
 
 ject. 
 
 262. Same. — Authorities con- 
 
 tinued. 
 
 Section. — 
 
 263. Estoppel by deed. 
 
 IV. C O N V E Y .\ N C E OF WATER 
 RIGHTS AND SALE OK WATER. 
 
 264. The conveyance of w a t e r 
 
 rights. 
 
 265. Same.— A u t h o r i t i c s dis- 
 
 cussed. 
 
 266. Sale of water after diversion. 
 
 267. Water right when an appur- 
 
 tenant to land. 
 
 268. Same. — Continued. 
 
 269. Same.— A u t h or i t i es dis- 
 
 cussed. 
 
 270. Colorado rule. 
 
 § '222. Extent of Suhjei-t Treated in Chapter.— The present 
 chapter will treat of the nature and extent of water rights 
 acquired by an appropriator b)' virtue of his appropriation of 
 the waters of streams or lakes flowing over the public lands 
 of the United States; the doctrines of abandonment and 
 estoppel, as the same are construed by Courts of the various 
 States and Territories in the arid region; also the appropria- 
 tor's right of conveyance of ditch property and water rights, 
 and also his right to sell the water to consumers after its diver- 
 sion. 
 
 I. Riijjhts Acqnired by Virtne of an Appropriation of the 
 Waters of Streams or Lakes. 
 
 § '2'23. Wliat Is a Water llia;ht .'—Right to running water, 
 under the common law, is defined to be a corporeal right, or 
 hereditament, which follows or is embraced by the ownership 
 of the soil over which it naturally passes.^ Owing to the 
 necessities and needs of the settlers and miners, growing out 
 of the peculiar climatic conditions and topographical features 
 in the arid West, the common law rule upon this subject has 
 been modified, and the right to running water exists also as 
 a corporeal right, without private ownership of the soil over 
 
 1 Angell on Water Courses, Sections; i Crien loaf's IM. Criiise'» 
 Digest, 39.
 
 360 NATURE AND EXTENT OF RIGHTS. [§223 
 
 which it naturally runs by virtue of the prior appropriation 
 of the water of the natural stream to some beneficial use or 
 purpose, and as such it has none of the characteristics of 
 personalty, but is a species of realty.' The very early case 
 in California, of Hill vs. Newman, ^ has been followed by the 
 later authorities upon the subject, and the Court in that 
 decision said: "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 alwaj's 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. 
 It therefore follows that a justice of the peace has no power 
 conferred upon him to try a cause where there is an alleged 
 injury arising out of a diversion of water from the natural 
 or artificial channel in which it is conducted." And it is 
 also held that it is only when water is collected in reser- 
 voirs or pipes and separated from the original source of 
 supply that it is personal property and subject to sale as 
 an article of commerce." But upon the question of trans- 
 ferring the right to water, the great weight of authority 
 holds that both the water-ditch and the water-right appur- 
 tenant thereto are species of realty, and require for their 
 valid transfer the same form and solemnity as is necessary 
 for the conveyance of any other real estate.* 
 
 1 Hill vs. Newman, 5 Cal. 445; Barkley vs. Tieleke, 2 Mont. 59; 
 
 Lux vs. Haggin, 69 Cal. 392; Lake- Smith vs. O'Hara, 43 Cal. 371. 
 
 side Ditch Co. vs. Crane, 80 Cal. 25 Cal. 445. 
 
 181; Farmer's High Line Canal SHeyneman vs. Blake, 19 Cal. 
 
 Co. vs. Southworth, 13 Cal. iii; 578. 
 
 Reno Smelting Works vs. Steven- 4 Barkley vs. Tieleke, 2 Mont, 
 
 son, 20 Nev. 269; Terrett vs. 59; Smith vs. O'Hara, 43 Cal. 371; 
 
 Mahan, 20 Nev. 89; Kidd vs. McDonald vs. B. R. M. Co., 13 
 
 Laird, 15 Cal. 161; Butte T. M. Co. Colo. 220; Union W. Co. vs. Crary, 
 
 vs. Morgan, 19 Cal. 609; Lick vs. 25 Cal. 504; Dalton vs. Bowker, 8 
 
 Madden, 25 Cal. 209; Hill vs. Nev. 190; Farmer vs. Ukiah W. 
 
 Smith, 27 Cal. 476, 482; Atchison Co., 56 Cal. 13; Reed vs. Spicer, 27 
 
 vs. Peterson, 20 Wall. 507, 512; Cal. 58; 3 Washburn, Real Prop-
 
 §224, 225] NATURE AND EXTENT OF RIGHTS. 361 
 
 § 224. Property in Ditches and (l;iiials.— A ditch used 
 for the conveyance of water for any beneficial purpose is 
 not a mere easement, neither is it a corporeal or an incor- 
 poreal hereditament appurtenant to land. It is itself land.^ 
 
 The Supreme Court of California, in the case of Reed vs. 
 Spicer,2 27 Cal. 58, held: That a deed in which there were 
 two independent descriptions of the interest intended to be 
 conveyed, first by name — "a way to, in, and for the ditch, 
 called Mountain Brow Water Company;" second, by indi- 
 cating the land which the way crosses, viz, "land owned by 
 Spicer," conveyed a right of way. And the Court in the 
 opinion said: "Substantially the conveyance was of the ditch, 
 for there can be no distinction taken between 'a right of way 
 in a ditch' or 'for' an existing ditch and the ditch itself." 
 
 It follows from the above that there is a distinction be- 
 tween the right to the water appropriated from a natural 
 stream and this right to the canal, ditch, or other structure, 
 by means of which the water is diverted from the stream 
 and conveyed to the place where it is to be used. And the 
 difference consists in simply the difference between a cor- 
 poreal hereditament to land,'^ and the land itself."* The 
 right of a prior appropriator to have the water flow in the 
 river or stream to the head of his ditch is an vicorporcal 
 hereditament, appurtenant to the ditch, and the appropriators' 
 rights to the water diverted thereby.'' 
 
 § 225. Amount of Water That May Be Uivertecl.— The 
 
 first appropriator from a stream upon the public domain is en- 
 titled to use and enjoy the 'water to the full extent of his 
 
 erty, 4th Edition, marginal page those which lie in livc-ry, and con- 
 627; Hill vs. Newman, 5 Cal. 445. sist of those which are suhslanlial 
 As to when water itself becomes and permanent, visible and tan- 
 personal property see Parks. C. gible. 9 Am. & luig. Ivnc.of Law. 
 M. Co. vs. Hoyt, 57 Cal. 46. 359; 2 lilackstonc's Com. 17; 3 
 
 iReed vs. Spicer, 27 Cal. 57; Kent Com. 401; Williams Real 
 
 Clark vs. Willett, 35 Cal. 534; Property, 10; Rex vs. Trustee, 3 
 
 Hunt vs. Plum, 14 Cal. 148; Mcr- ILand A<1. 216. 
 
 ritt vs. Judd, 14 Cal. 59; Burnham ^ vSee Hill vs. Newman, 5 Cal. 
 
 vs. Freeman, 11 Colo. 601. 445. 
 
 227 Cal. 58. ^ Lower Kiii;,'s R. W. D. Co. vs. 
 
 3 Corporeal heredilaments are Kinj^^s R. etc. Co. ^o Cal. 40K.
 
 362 NATURE AND EXTENT OF RIGHTS. [§ 225 
 
 original appropriation, even when this includes all the water 
 of the stream all of the time, provided that all that is diverted 
 is continually applied to some useful or beneficial purpose.^ 
 This, of course, is only the case as between appropriators, and 
 does not apply where title to the land through or adjoining 
 which the stream runs was obtained prior to his appropriation 
 in those jurisdictions which recognize and protect the com- 
 mon law riparian rights. By the term " to the full extent of 
 his original appropriation ' ' is meant the full amount of water 
 he is entitled to take out when his appropriation is entirely 
 complete. It does not mean that his rights will be limited 
 simpl}^ to the partial amount of his appropriation that he may 
 have taken out of the stream while his works are in the course 
 of construction, provided he prosecuted their construction 
 with all due and reasonable diligence 'Until completed. And 
 as to what constitutes all due and reasonable diligence in re- 
 ducing a claim of water to possession and ownership is a 
 question dependent on the facts and circumstances shown to 
 exist in each particular case.- 
 
 A great many of our western streams become nearly dr)^ in 
 the summer, just when the water is most needed for irri- 
 gation. And so if a certain stream in the spring-time has a 
 flow of five hundred inches and in the summer-time the flow 
 is reduced to one hundred inches or less, and A as the first 
 appropriator upon the stream has legally completed his ap- 
 propriation of two hundred and fift}' inches, the capacity of 
 his ditch and the amount that he actuall}^ uses for the purpose 
 for which he made the appropriation, he is entitled as re- 
 gards all subsequent claimants to the water either above or 
 below him on the stream to all of the water that flows in it 
 during the period that it is equal to two hundred and fifty 
 
 1 Lobdell vs. Sinipsou, 2 Nev. 2park vs. Kilham, 8 Cal. 77; 
 
 274; Ophir Silver Mining Co. vs. Weaver vs. The Eureka Co., 15 
 
 Carpenter, 4 Nev. 543; Barnes vs. Cal. 271; Lockhart vs. Ogden, 30 
 
 Sabron, 10 Nev. 217; Nevada Cal. 547; Kimball vs. Gearheart, 
 
 Water Co. vs. Powell, 34 Cal. 109; 12 Cal. 30; White vs. Todds Val- 
 
 Gale vs. Tuolumne Water Co., 14 ley Water Co., 8 Cal. 444; see 
 
 Cal. 25; Sims vs. vSmith, 7 Cal. Ante Chapter "VI., Sections 164, 
 
 148. 165.
 
 ^225,226] NATURE AND EXTENT OF RKJHTS. 
 
 :J(j:j 
 
 inches or less, although he entirely shuts off the supply of 
 the subsequent appropriators. This may seem a selfish rule 
 to one who is acquainted with only the principles of the com- 
 mon law upon the subject, but it is based upon the general and 
 uniform principle applicable to all claims by appropriation to 
 waters upon the public domain of the arid west that " he who 
 has the prior has the superior right." ' 
 
 Under this principle the general doctrine is settled by a long 
 line of authorities that the prior appropriator is entitled to the 
 exclusive use of the water up to the amount embraced in his 
 appropriation either for the original purpose for which he in- 
 tended to apply the water or for any different purpose, provided 
 the amount originally appropriated is not thereby increased, 
 and that he in no way diminishes or materially alters the 
 quality or quantity of the water legally appropriated by sub- 
 sequent parties. - 
 
 § 22iy. Ssiine.— Authorities Discussed.— In the very recent 
 case of Drake vs. Earhart,^ decided by the Supreme Court of 
 Idaho, the facts were that the plaintiff's grantor in 1879 ap- 
 propriated the water of a certain small stream and diverted 
 for the purpose of irrigation all the water flowing therein; 
 that said plaintiff's grantor claimed six hundred inches of the 
 water of the stream, which actually carried only one hundred 
 and fifty inches; that all the waters of the stream were required 
 
 1 However, priority of appro- Fletcher, 23 Cal. 4S2; Natonia 
 
 priation by a riparian owner does Water Co. vs. McCoy, 23 Cal. 490; 
 
 not give an exclusive right if Butte, etc., Co. vs. Morgan, 19 
 
 other parties have located upon Cal. 609; Kidd vs. Laird, 15 Cal. 
 
 the stream prior to the appropria- 161; Kimball vs. Gearhart, 12 Cal. 
 
 tion. See Po.st vSections 181-183. 27; Ortman vs. Dixon, 13 Cal. 33; 
 
 SHimes vs. Johnson, 61 Cal. 259; Hear River, etc., Co. vs. New York 
 
 Stein Canal Co. vs. Kern Island I. M. Co., 8 Cal. 327;()phir Silver M. 
 
 C. Co., 53 Cal. 563; Reynolds vs. Co. vs. Carpenter, 4 Nev. 534; 
 
 Hosmer, 51 Cal. 205; Gregory vs. Barnes vs Sal)ron, 10 Nev. 217; 
 
 Nelson, 41 Cal. 278; Clark vs. Wil- Strait vs. Brown, 16 Nev. 317; 
 
 lett, 35 Cal. 534; Davis vs. Gale, 32 Atchison vs. I'eterson, 20 Wall. 
 
 Cal. 26; McDonald vs. Askew, 29 515; (iould on Waters, Sec. 229; 
 
 Cal. 200; Hill vs. Smith, 27 Cal. Alhambra A. \V. Co. vs. Richnrd- 
 
 476, 32 Cal. 166; Rupley vs. Welch, son, 95 Cal. 49(j; 30 Rac. Rep. 577. 
 
 23 Cal. 453; Phoenix W . Co. vs. •< 23 I'ac. Riji. 541.
 
 364 NATURE AND EXTENT OF RIGHTS. [§ 226 
 
 for the irrigation of the lands of the plaintiffs who had suc- 
 ceeded to the original appropriator's rights. The defendant 
 purchased his land in 1885, which had been acquired by his 
 grantor in May, 1883. The lands of the defendant were upon 
 the stream higher up, and he commenced the use of the water 
 of the stream by diverting it upon his lands. The plaintiff 
 brought an action to perpetuall}' restrain defendant from such 
 use, and in the trial court the right to all the water was ad- 
 judged to the plaintiff and the defendant was restrained. The 
 case was then appealed to the Supreme Court, which affirmed 
 the judgment. Chief Justice Beatty, in rendering the opinion, 
 said: " The important question for the settlement of which 
 this appeal was chiefly brought is what, if any, rights the ap- 
 pellant has to any of that water as a riparian proprietor. His 
 claim is not based upon any prior appropriation under our 
 Territorial laws, but upon the fact that the stream in question 
 flows b}^ its natural channel through his land; hence that he 
 is entitled to the use thereof allowed by the common law. 
 This doctrine of riparian proprietorship in water as against 
 prior appropriation has been very often discussed, and nearly 
 always decided the same way by almost every appellate 
 Court between Mexico and the British possessions, and from 
 the shores of the Pacific to the eastern slope of the Rocky 
 Mountains, as well as by the Supreme Court of the United 
 States. But for the fact that it has elsewhere appeared in the 
 same court it would seem surprising that it should now be 
 seeking another solution in this. While there are questions 
 growing out of the water laws not fully adjudicated, this 
 phantom of riparian rights, based upon facts like those in this 
 case, has been so often decided adversely to such claim and 
 in favor of the prior appropriator that the maxim, 'first in 
 time, first in right,' should be considered the settled law here. 
 Whether or not it is a beneficent rule, it is the lineal descend- 
 ant of the law of necessity." 
 
 And in commenting upon certain construction of the opinion 
 by the Supreme Court in the case of Base}- vs. Gallagher,^ 
 the Court said: " In this case it is said: ' The right of the 
 
 1 20 Wall. 681, 543.
 
 §226,227] NATURE AND EXTENT OF RIGHTS. 305 
 
 first appropriator, exercised within reasonable limits, is re- 
 spected; ' that it ' is not unrestricted. It must be exercised 
 with reference to the general condition of the country and the 
 necessities of the people.' 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 inconsistent with itself as well 
 as with the other decisions of the same court. Jennison vs. 
 Kirk, 98 U. S. 461; Broder vs. Water Co., loi U. S. 276. 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 mis- 
 using it, deprive his neighbor of what he has not actual use 
 for. In 98 U. S. 461, 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 interference 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 ap- 
 propriator the other must yield to his superior right." 
 
 Also in the case of Malad Valley Irr. Co. vs. CainpbelP 
 the Supreme Court of Idaho also held that rights cannot be 
 acquired to the waters of springs situated along the channel 
 of a stream, which springs constitute its direct source of sup- 
 ply, as against prior appropriations in good faith of the whole 
 of the waters of the stream; as to allow that to be done would 
 disturb substantial vested rights, which the law would not 
 permit. 
 
 § 227. Same.— Same.— Conliiiued.— The Supreme Court of 
 Nevada seems to have had considerable difficulty upon the ques- 
 tion as to whether all of the water of a stream can be diverted 
 by the prior appropriator, if it is all necessary for his use, and 
 within the extent of the original appropriation. In the 
 
 1 18 I'ac. Rep 52.
 
 366 NATURE AND EXTENT OF RIGHTS. [§ 227 
 
 opinion of Vansickle vs. Haines,^ which is a decision that 
 was almost universally^ cited as authority as to most of its 
 holdings, the Court said: " When it is said that a proprietor 
 has the right to have the stream continue through his land, 
 it is not intended to be said that he has the right to all the 
 water, for that would render the stream, which belongs to all 
 the proprietors, of no use to any. What is meant is, that 
 710 one can absolutely divert the lahole stream, but must use it 
 in such a manner as not to injure those below him." This 
 latter sentence was taken to refer to those claiming the water 
 by prior appropriation, as well as those who claimed it by 
 virtue of their riparian rights.- By taking the whole con- 
 text of the opinion, that would seem undoubtedly to be what 
 the Court intended to conve}^, but the later rulings of the 
 same Court do not hold to that opinion. In fact the case of 
 Vansickle vs. Haines, supra, was decided upon an entirely 
 different principle. It was upon the principle that a prior 
 appropriator of water of a stream obtained no right what- 
 ever against the Government or its grantee, before any Act 
 of Congress limiting the grant. And in the case of Barnes 
 vs. Sabron,-^ the same Court held, that the first appropriator 
 of the waters of a small stream has a right to insist that the 
 waters flowing therein shall, during the irrigating season, be 
 subject to his reasonable use and enjoyment to the full extent 
 of his original appropriation and beneficial use. To this 
 extent his rights go, but no further; for in subordination to 
 such rights all subsequent appropriations, in the order and 
 to the extent of their original appropriation and use, have 
 the unquestionable right to the remainder of the water run- 
 ning in the stream."* This holding is entirely contrary to the 
 construction of the part of the opinion quoted above in the 
 case of Vansickle vs. Haines, and later the decision in 
 that case was overruled by that Court in the case of Jones vs. 
 Adams. ^ And still later, in April of 1889, the same Court, 
 
 1 7 Nev. 249, 286. Co. vs. Vaughn, 11 Cal. 143; The 
 
 2 See II Am. & Eng. Enc. of Nevada Water Co. vs. Powell et 
 Law 854, Note 2. al., 34 Cal. 109; 
 
 3 10 Nev. 217. •'' 19 Nev. 78, 6 Pac. Rep. 442. 
 •» Citing Butte Canal & Ditch
 
 § 227, 228] NATURE AND EXTENT OF RIGHTS. 307 
 
 in the case of Reno Smelting & Milling, etc. Co. vs. Steven- 
 son, ^ affirmed the decision in Jones vs. Adams, supra. So in 
 that State it is now settled that the first appropriator of the 
 water of a stream is entitled to the enjoyment of the water to 
 the full extent of his original appropriation, even when it 
 includes all the water of the stream. 
 
 § 228. Other Autliorities on the Point.— In Colorado it 
 is held that the first appropriator of water from a natural 
 stream for a beneficial purpose has a prior right thereto, to 
 the extent of such appropriation, and this right is entitled to 
 protection as well after a patent has been given to a party of 
 the land over which the natural stream flows, as when such 
 land is a part of the public donjain.- In Schilling vs. Rom- 
 inger,-"^ the Court said: "That the first appropriator of the 
 water of a natural stream has a prior right to such water, to the 
 extent of his appropriation, is a doctrine that we must hold 
 applicable in all cases respecting the diversion of water for 
 the purpose of irrigation. Hence, the prior appropriation of 
 the water of Major Creek by Schilling, by the construction 
 of the ditch for the irrigation of his land, secured to him a 
 prior right to the use of such water to the extent of such 
 appropriation.^ It is also settled in Colorado, that no mere 
 diversion of water from a stream is entitled to protection as 
 against others coming after. To make it such it must be 
 actuall}^ applied to some beneficial use before the appropria- 
 tion is complete." 
 
 In the case of Geddis vs. Parrish, decided by the SuprcuK- 
 
 1 2o Nev. 269. Ditch Co., 17 Colo. 146; 2S I'ac. 
 
 2 Hamniond vs. Rose, 11 Colo. Rep. 966; 
 
 524; 16 Pac. Rep. 466; Coffin vs. ■'' Schilliiijj vs. Roiiiinj^jer, 4 Colo. 
 
 Ditch Co., 6 Colo. 443; Schilliiifi 100; Thomas vs. Guiraud, 6 Colo 
 
 vs. Rominger, 4 Colo. 103; 533; Sieher vs. Frink, 7 Colo. 149; 
 
 3 4 Colo. 103. Wheeler vs. Northern Colo. Ir. 
 ■1 See Fanners High Line Canal Co., 10 Colo. 582; I""arniers H. L. 
 
 Co. vs. Southworth, 13 Colo, in; Canal vs. Southworlli, 13 Colo. 
 
 4 L. R. A. 767; Thomas vs. Ouiraiid, m; 4 \,. R. A. 761; Conilis vs. 
 
 6 Colo. 533; Combs vs. Agric. Agri. Ditch Co., 17 Colo. 146; 28 
 
 Pac. Rf)). </)6.
 
 368 NATURE AND EXTENT OF RIGHTS. [§ 228 
 
 Court of Washington/ the Court held that the prior appro- 
 priator of the waters of a spring upon lands that were after- 
 wards patented to another had a right to the waters of the 
 spring, and that the owner of the land would have no more 
 right to place an obstruction in the stream leading from the 
 spring upon his own land than he would have upon the land 
 of another. And after discussing the rights of riparian 
 owners, the Court said: " But an appropriator of water may 
 acquire rights superior to a fee subsequently acquired from 
 the Government, as is recognized by Act of Congress of July 
 26th, 1866, although the waters run over and along the lands 
 thus subsequently acquired. In such cases the subsequently 
 acquired title must be considered as taken with notice of the 
 prior appropriation. A vested right having been acquired in 
 land, or a complete title, carries with it a right to the water 
 as above stated, unless a prior appropriation of the water or 
 right upon or over such land has taken precedence of such 
 vested right or title, as illustrated fully in Ellis vs. Improve- 
 ment Co. Such use must be had by the owner upon whose 
 lands water runs, where a right by prior appropriation has 
 vested, as not to materially affect the prior appropriator below 
 him. He takes subject to such right and with notice of it. 
 While, therefore, a reasonable use of the water by him would 
 be sustained, if the water is thereafter allowed to flow into 
 the head of the prior appropriator's ditch, yet under the cloak 
 of such use, or even for actual irrigation, he can not hold or 
 materially divert the water course so as to deprive or injure 
 others below him who were prior in point of use." And con- 
 cluding the opinion the Court said: " The obstruction of the 
 course and the diversion of the stream is thus wrong, and it 
 matters little where or upon whose land it occurs." ^ 
 
 In Hill vs. I,eonardman,^ the Supreme Court of Ari- 
 zona held that the right acquired by prior appropria- 
 tors could not be interfered with by a subsequent patentee 
 of the land through or adjoining which the stream 
 ran ; although in that Territory the rights of riparian 
 owners were recognized whenever they were applicable, and 
 
 1 I Wash. St. 587; 21 Pac. Rep. 314. i Wash. 572; 21 Pac. Rep., 27. 
 
 2 See Ellis vs. Improvement Co., 3 16 Pac. Rep. 266.
 
 §228,229] NATURE AND EXTENT OF RIGHTS. 3G9 
 
 the Court said : " Riparian rights are the same here as else- 
 where wherever they apply ; but they do not apply where the 
 rights of prior appropriators have intervened. As is very 
 generally the case, in the Pacific States and Territories, the 
 conditions are so changed that riparian rights do not attach. 
 In the case at bar riparian rights do not apply. Here the 
 defendants, six or seven years subsequent to the appropriation 
 of plaintiffs, bought the lands about two miles above plaintifTs, 
 on both sides of the San Pedro river, and sought the usufruct 
 of the water thereof, diverting the same by means of a dam, 
 ditch, etc., thereby interfering with the vested rights of 
 plaintiffs as prior appropriators. Plaintiffs as prior appropria- 
 tors had acquired vested rights in these waters, and the pur- 
 chase and ownership of the lands on both sides of San Pedro 
 river above plaintiff's did not divest these rights. " 
 
 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 
 appropriation, and others claiming an appropriation in the 
 waters subsequent to the first appropriation can not divest 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. 
 
 § 229. Same. — Coiitiiiueil. — In the case of South Yuba 
 Water and M. Co. vs Rosa^ the Supreme Court of California 
 held that the rights of a homestead claimant are subject and 
 subordinate to the prior appropriation when his settlement 
 upon the land is subsequent to an appropriation of the water 
 flowing in its natural channel across the same by the owners 
 of a water ditch which taps the stream below the homestead 
 claim, and that a perpetual injunction would lie against the 
 settler for a diversion by him of the water. In the case of 
 De Necochea vs. Curtis -it was held that under the Act of 
 Congress of July 26th, 1866, a prior appropriator of all the 
 waters of a spring, who diverted it from its natural course by 
 means of a completed ditch prior to the vesting of any rights 
 by a subsequent pre-emption of the land over whicli the water 
 
 1 80 Cal. 333; 22 Pac. Rep. 222. 2 80 Cal. 397; 20 Pac. Rep. 563.
 
 370 NATURE AND EXTENT OF RIGHTS. [§229,230 
 
 of the spring would naturally flow, is protected to the extent 
 and in the manner of such actual and completed diversion 
 which included, in that case, all of the waters from the spring. 
 In the case of Hill vs. Lenormand et al.,^ decided by the 
 Supreme Court of Arizona January 12th, 1888, the facts were 
 that the defendants six years subsequent to an appropriation 
 of the plaintiffs bought lands about two miles above plaintiffs, 
 on both sides of the stream and diverted the waters of the 
 stream, thereby interfering with the rights of the plaintiffs as 
 prior appropriators. The trial Court granted an injunction 
 to the plaintiffs against the defendants, and the Supreme 
 Court upon appeal held that plaintiffs as prior appropriators 
 had acquired vested rights in the waters of the stream, and 
 the purchase and ownership of the lands on both sides of the 
 stream above plaintiffs did not divert those rights from them; 
 and in concluding the Court said: " The Court found that the 
 quantit}' of water appropriated by plaintiffs (as hereinbefore 
 indicated) was for long times continuous, necessary for their 
 reduction works and for irrigating their lands; and thereupon 
 enjoined defendants from interfering wdth said quantity of 
 water at times when the same was necessary for plaintiff's 
 use as aforesaid. 
 
 "We think the judgment of the Count}' Court ought to be 
 aflBrmed, and it is so ordered." 
 
 From these authorities there can be no question but that it 
 is the law that the rights of the first appropriators will be 
 respected if the same are exercised within the extent of the 
 original appropriation and all the water used for some bene- 
 ficial purpose. 
 
 §230. How Extent of Right Acquired is Determined. 
 
 — In the beginning of this discussion it was stated that the 
 first appropriator is entitled to the use and enjoyment of the 
 water to the full extent of his original appropriation. It now 
 becomes necessary to ascertain by what method and upon 
 what basis the extent of the appropriator's rights are deter- 
 mined. The earliest authorities held that he was entitled to 
 have the water of the stream flowing down to the head of his 
 
 1 16 Pac. Rep. 266.
 
 § 230] NATURE AND EXTENT OF RIGHTS. 371 
 
 ditch undiminished in quantity, so as to leave when the subse- 
 quent locations were made above him sufficient water to fill 
 his ditch to its full capacity at its smallest point. ^ Or. as the 
 rule is stated in the case of Bear River, etc., Co. vs. New 
 York M. Co., cited above, " He is entitled to the water, so 
 undiminished in quantity, as to leave sufficient to fill his 
 ditch as it existed at the time the locations were made above. 
 His right is essential to the protection of the ditch owners. 
 If we lay down the rule that the subsequent locators above 
 may so use the water as to diminish the quantity it would be 
 difficult to set any practical limit to such diminution, and the 
 ditch property might be rendered entirely useless." 
 
 The rule is still that the greatest qicantity of water that can 
 be diverted by the prior appropriator, if the rights of others 
 have attached to the waters of the stream subsequent to those 
 of the first, is to be measured 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.^ The capacity of the appro- 
 priator's ditch may be called the maximum amount of water 
 than he can divert by virtue of his appropriation. He is lim- 
 ited to that amount and, in subordination to his prior right 
 thus limited, others may appropriate the remainder of the 
 water running in the stream.-^ And after the rights of others 
 
 iRear River, etc., Co. vs. New mere showing of the witUh and 
 
 York M. Co., 8 Cal. 327; Hill vs. depth of the ditch, but the veloc- 
 
 King, 8 Cal. 339. it}' of the flow must be shown. 
 
 2 Atchison vs. Peterson, 20 Wall. Last Chance W. D. Co. vs. 
 
 507; Higgins vs. Barker, 42 Cal. Heilbron, 86 Cal. i; 26 Pac. Rep 
 
 233- 623. 
 
 Ophir Mining Co. vs. Carpenter, •* Butte Canal Co. vs. Vaughn, 11 
 
 6 Nev. 393, where it was held that Cal. 143, where it was lield that 
 
 the quantity of water appropri- the first appropriator of the water 
 
 ated in any given case is to be of a stream passing througli the 
 
 measured by the capacity of the public lands in the vState has the 
 
 ditch or flume at the smallest right to insist that the water sliall 
 
 point, that is, at the point where be subject to his use and enjoy- 
 
 the least water can be conveyed ment to the extent of his original 
 
 through it. appropriation, and its quality shall 
 
 Caruthers vs. Pemberton, i not be impaired so as to defeat 
 
 Mont. III. The carrying capacity the purposes of its appropriation, 
 
 of a ditch is not established by a To this extent his rights go, and
 
 372 
 
 NATURE AND EXTENT OF RIGHTS. [§ 230, 231 
 
 have attached to the remainder of the water and the same has 
 been appropriated by them the first can not in any way in- 
 crease his appropriation by extending or enlarging his ditch, 
 raising' his dam, changing the place or nature of the use of the 
 water, or by any other method increase the amount of water 
 diverted and used by him under his appropriation, if the later 
 comers are in any way injured or their rights infringed upon. 
 The right of the subsequent appropriators to the use of the 
 surplus of the water running in the stream, subject to the 
 original extent of the appropriation of the first, is as perfect 
 as his own right. ^ 
 
 §231. Special Purpose Often Determines Extent. — The 
 special purpose or object for which water is to be used often 
 determines the extent of the appropriator's right to the water, 
 and in such a case the appropriator is entitled to only so much 
 as is reasonably necessary for that purpose. And if he diverts 
 
 no further. In subordination to 
 those rights subsequent appropri- 
 ators may make use of the chan- 
 nel of the stream as they think 
 proper, and they may mingle its 
 waters with other waters, and di- 
 vert an equal quantity as often as 
 they choose. 
 
 Ortman vs. Dixon, 13 Cal. 33; 
 McKinney vs. Smith, 21 Cal. 374; 
 Nevada Water Co. vs. Powell, 34 
 Cal. 109; Higgins vs. Barker, 42 
 Cal. 233; Brown vs. Mullin, 65 
 Cal. 89; Junkans vs. Bergen, 67 
 Cal. 267; Lobdell vs. Simpson, 2 
 Nev. 274; Proctor vs. Jennings, 6 
 Nev. 83; Barnes vs. Sabron, 10 
 Nev. 217; Strait vs Brown, 16 Nev. 
 317; Chiatovich vs. Davis, 17 Nev. 
 133; Thomas vs. Guiraud, 6 Colo. 
 
 530- 
 
 1 Nevada Water Co. vs. Powell, 
 34 Cal. 109; Ortman vs. Dixon, 13 
 Cal. 33; Higgins vs. Barker, 42 
 Cal. 233; Davis vs. Gale, 32 Cal. 
 
 25; Lobdell vs. Simpson, 2 Nev. 
 274. 
 
 Barnes vs. Sabron, 10 Nev. 217. 
 In this case it was held that the 
 appropriator is only entitled to as 
 much water as is necessary to irri- 
 gate his land, and is bound under 
 the law to make a reasonable use 
 of it. What is a reasonable use 
 depends upon the circumstances 
 of each particular case. And it 
 was also held that under the par- 
 ticular facts of this case that the 
 plaintiff should not be confined 
 to the amount of water used by 
 him the first and second year after 
 his appropriation, nor his rights 
 regulated by the number of acres 
 he then cultivated; but that the 
 object had in view at the time of 
 his diversion of the water must 
 be considered in connection with 
 the actual extent of his appropri- 
 ation. 
 
 See also Atchison vs. Peterson; 
 20 Wall. 514.
 
 § 231, 232] NATURE AND EXTENT OF RIGHTS. 373 
 
 more water than lie can actually use for his original purpose, 
 or changes the object so as to increase the amount of water 
 diverted, he m'ay be prevented from such wasteful or addi- 
 tional diversion by any subsequent claimants who may have 
 secured rights in the water of the stream, and whose rights 
 are thereby affected.^ 
 
 § 232. Same. — Authorities Discussed. — Upon this very 
 important question the Supreme Court of California in the 
 case of Nevada W. Co. vs. Powell, ^ said: "The question, 
 what is the extent of the right originally acquired by plaintiff, 
 to which all subsequently acquired rights must be subor- 
 dinate, is one of fact for the jury. The dam as originally con- 
 structed was six feet high. Before any other rights had been 
 acquired in the waters of the stream or in the banks, or in the 
 lands adjacent, the plaintiff undoubtedly under the customs 
 of the country and recognized law of the land was authorized 
 to appropriate the waters of Shady Creek for mining purposes, 
 and to acquire a right to construct a dam and employ other 
 means sufficient in the condition of the stream as it then ex- 
 isted to enable it to control the waters appropriated for the 
 uses contemplated. How far great possible physical changes 
 might then be anticipated and provided for by extending the 
 claim it is not now necessary to determine. But suppose the 
 
 1 Nevada Water Co. vs. Powell, public domain became owner 
 
 34 Cal. 109; McKinney vs. Smith, thereof, and of the right to use 
 
 21 Cal. 374; Barnes vs. Saljron, 10 the waters first appropriated 
 
 Nev. 217; Davis vs. Gale, 32 Cal. thereby, so long as they use the 
 
 26; Kidd vs. Laird, 15 Cal. 161; water for irrigating purposes and 
 
 Woolman vs. Garringer i Mont. to the extent of such appropria- 
 
 535- tion. 
 
 Simpson vs. Williams, 18 Nev. Wilcox vs. Hausch, 64 Cal. 461; 
 
 432; 4 Pac. Rep. 1213, where the 3 Pac. Rep. loS. 
 
 Court held that the amount of No one is entitled to have a pri- 
 
 water to which the first appropri- ority adjudged for more water 
 
 ator is entitled must be limited to than he has actually appropriated, 
 
 the amount of water actually ap- nor for more than he actually 
 
 plied to the purposes of irrigation. needs. Priority of right is limited 
 
 Lehi Ir. Co. vs. Moyle, 4 Utah, by each of these considerations. 
 
 327, 9 Pac. Rep. 867, where the Nichols vs. Mcintosh (Colo). 34 
 
 Court held that the person who Pac. Rep. 278. 
 
 bnilt an irrigating ditch on the a34Cal. 109. iiS.
 
 374 NATURE AND EXTENT OF RIGHTS. [§ 232' 
 
 plaintiff appropriated the waters and constructed its ditch and 
 dam amply sufficient under the conditions of the stream and 
 the country as it then existed to make it available, and ac- 
 quired aright to appropriate and use said water in the manner 
 adopted and to the extent of the appropriation, this would not 
 prevent other parties from acquiring rights in the surplus 
 water, or in the bed and banks of the stream, or in the ad- 
 jacent lands, to any extent which should not interfere with 
 the rights before acquired. And when the rights of the sub- 
 sequent appropriators once attach the prior appropriator can- 
 not encroach upon them b}- extending his rights beyond the 
 first appropriation. In this case the plaintiff appropriated the 
 waters of Shady Creek, constructed its ditch and dam for the 
 purpose of conveying it away for the uses contemplated, and 
 the mode of use, so far as anything to the contrary appears by 
 the tcstimon}^, was sufficient in the then condition of the 
 stream to enable the plaintiff to enjoy the waters in the most 
 advantageous manner. It does not appear that plaintiff ac- 
 quired any rights or made any claim beyond this. If plain- 
 tiff's right was thus limited to the extent and mode of the 
 actual appropriation — and from the mere fact of appropriation 
 and enjoyment to a certain extent and in a particular manner, 
 no presumption of law arises that the right is more extensive 
 than is indicated b}- the actual appropriation and mode of en- 
 joyment — then the defendants had a right to take up the min- 
 ing claims on the stream above and work them in any manner 
 which would not encroach upon the rights of the plaintiff, as 
 they were actually vested and enjoyed at the time of locating 
 such mining claims. To that extent they themselves would 
 be the first appropriators, and being first in time would be 
 first in right. When the right has once vested in the de- 
 fendants the plaintiff is no more justified, by extending its 
 own claim or changing the means of appropriation, in inter- 
 fering with the full enjoyment of the right vested in the de- 
 fendants than the defendants would be in encroaching upon 
 the prior rights of the plaintiff. "^ 
 
 1 Simpson vs. Williams, i8 Nev. waste water of a stream run- 
 
 432; 4 Pac. Rep. 1213. ning through a certain named 
 
 Under a judgment defining the ranch as being "that portion of
 
 §233] NATURE AND EXTENT OF RIGHTS. 375 
 
 §233. Cli;mi;e of Use. — When, however, the water has 
 been once lawfully appropriated and the extent of the appro- 
 priation determined by the particular use or purpose for 
 which it was made the rights acquired by the prior appro- 
 priator in and to the water are not lost by changing the use to 
 which it was first applied to some other use, or the place at 
 which it was first employed to some other place. By his legal 
 appropriation of the amount of water sufficient for his original 
 purpose he is entitled to that amount and may apply it to any 
 of the beneficial uses he may see fit, as against other 
 parties whose rights have accrued subsequently to his own, 
 provided the amount of water taken b}' him is not thereby 
 increased beyond that of his original appropriation, nor the 
 rights of those coming later injured or impaired in any 
 manner. 1 But the extent of the first appropriator's rights are 
 fixed by the amount of water diverted necessary for the origi- 
 nal use or purpose. If the waters were appropriated origi- 
 nally for working a mining claim the owner may at any time 
 extend his ditch and use the same quantity of water at other 
 points or for a difi"erent purpose. If he does not need the 
 water for w^orkiug the mining claim he may use it for irrigat- 
 ing the soil ;^ or ceasing to use it he may sell his water right 
 to another who will apply it to some beneficial purpose.-* The 
 
 said waters which is not necessary Drake vs. Earhart (Maho), 23 Pac. 
 
 to irrigate said ranch and for Rep. 541. 
 
 household purposes thereon," the 1 Maeris vs. Bicknell, 7 Cal. 261; 
 
 person having the right to such Hill vs. vSmith, 27 Cal. 476; Davis 
 
 waste water is entitled to all vs. Gale, 32 Cal. 26; Kidd vs. 
 
 the water not reasonable and nee- Laird, 15 Cal. 161; Coffin vs. Left 
 
 essary for the purposes of that Hand Ditch Co., 6 Colo. 443; 
 
 particular ranch; and the use of Thomas vs. Guiraud, 6 Colo. 530; 
 
 a greater quantity than is nee- Sieber vs. Frink, 7 Colo. 148; Dorr 
 
 essary by the owner of such ranch, vs. Hannnond, 7 Colo. 79; Mining 
 
 or a diversion thereof for Co. vs. Morgan, 19 Cal. 609; Water 
 
 other purposes, is a violation of Co. vs. Powell, 34 Cal. 109. 
 
 such right for whicli an action '^ Davis vs. Gale, 32 Cal. 26, 
 
 will lie. Woolnian vs. Gariinger, i Mt>Mt. 
 
 Byrne vs. Crafts, 73 Cal. 641; 15 535. 
 
 Pac. Rep. 300; Kirk vs. Hartholo- =< Fabian vs. Collins, 2 Mont. 510; 
 
 mew (Idaho), 29 Pac. Rep. 40; Orlnian v.s. Dixon, 13 Cal. 33;
 
 376 NATURE AND EXTENT OF RIGHTS. [§ 233 
 
 Supreme Court of California in tlie case of Davis vs. Gale,^ states 
 that rule governing the extent ofthe prior appropriator's rights 
 to the water of a stream, from his side of the question, as not 
 being in an^^ manner lost by the change of use to which it is 
 applied, as follows : "Suppose a party taps a stream of water 
 for the purpose of surface mining in a given locality, and 
 afterwards 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 saw mill, and after the 
 timber is exhausted he finds that a grist mill will pay, may 
 he not convert the former into the latter without surrendering 
 his priority to some one who may have subsequently and in 
 the meantime tapped the same stream ? ^ 
 
 " We think all this may be done, and are unable to suggest a 
 plausable reason why it may not. In cases like the present a 
 party acquires a right to a given quantity of water by appro- 
 priation and use, and he loses that right by non-use or aban- 
 donment. Appropriatio7i, use, and non-use are the tests of his 
 rights ; and place of use and character 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 other 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. The water-rights in- 
 volved in this case may not be of great value, and their acquisi- 
 tion may not have been attended with much expense, but there 
 are many similar privileges which have been secured only by the 
 use of large sums of money, and to hold that they are limited 
 to the particular place or to the particular purpose in view of 
 which they were first sought would, for obvious reasons, lead 
 
 Barldey vs. Tieleke, 2 Mont. 59; Crary, 25 Cal. 504; Dalton vs. 
 
 Smith vs. O'Hara, 43 Cal. 371; Bowker, 8 Nev. 190. 
 
 McDonald vs. B. R. & M. Co. 13 1 32 Cal. 34. 
 
 Cal.' 220; Union Water Co. vs. 2 See Gallagher vs. Montecito
 
 §233,234] NATURE AND EXTENT OF RIGHTS. 377 
 
 to most pernicious results and greatly delay and embarrass 
 the development of the resources of the country." 
 
 And as to the extent of his right, discussed from the subse- 
 quent appropriator's stand point, the same Court in a later 
 case maintained the doctrine held in the above quotation.^ 
 
 § 231:. S:ime. — Authorities Contiimeil. — But we have said 
 that the rights of subsequent appropriators must not be injured 
 in any manner by the change of the use of tlie water by the 
 first appropriator. Some uses that the first appropriator may 
 have put the water to might consume all the water diverted; 
 but again, certain uses for which the appropriation was orig- 
 inally made may not materially diminish the quantity of the 
 water flowing in the stream below the first appropriator's 
 ditch. Take, for instance, water diverted for irrigation, and 
 that diverted for running a mill. If the appropriation was 
 made for the latter purpose very little water of the stream 
 would be actually consumed. The public have notice of the 
 water that is actually appropriated and consumed by the first 
 appropriator, and subsequent appropriators have a right to 
 take out the amount remaining in the stream. Now the law 
 is settled upon this question, that in cases similar to this the 
 first appropriator cannot change the use to which he applies 
 the water to such a purpose as will consume all the water or 
 any amoitnt over and above the amount actually consumed Ijy 
 him by the first use to which he applied it, to the injury of 
 the subsequent appropriator's rights. 
 
 Upon this question a recent decision in the Circuit Court ot 
 the United States for the District of Idaho is to be taken as 
 authority. The Court said in the case of the Last Chance 
 Mining Co. vs. Bunker Hill & S. Mining & Concentrating 
 Co.: 2 "The use for which the water is appropriated and to 
 which it is applied is an important factor in the construction 
 of the statute. The controlling question in any case is 
 whether subsequent locators have had such notice of prior 
 
 Val. W. Co. (Cal.); 35 Pac. Rep. pruvious section. See Section 
 770. 154- 
 
 1 See Nevada Water Co. vs. 249 reel. Rep. 430. 'lcci<K-<l I'l-b- 
 
 Powell, 34 Cal. 118; and fjuoted in rnary 29, 1892.
 
 378 NATURE AND EXTENT OF RIGHTS. [§ 234 
 
 rights, and their extent and effect, as would guard them 
 against making invalid locations. 
 
 " In illustration, suppose some certain amount of water is 
 appropriated to be used as a power by its conversion into 
 steam; or by combination with other elements is to be con- 
 verted into articles of merchandise; or to be used upon some 
 certain tract of land for the purpose of irrigation. Should 
 the appropriator be precluded from thereafter changing either 
 or both — its use or the place thereof? The reply must be in 
 the negative, for in all such cases the purpose of the appro- 
 priation is such that no subsequent appropriator can thereby 
 be misled to his injury. Distinct notice is given in such 
 cases, not only that so much water is drawn from the public 
 supply, but that its appropriation is such that it cannot be 
 used a second time. It is a notice that so much water is 
 practically destroyed — is eliminated from existence as water. 
 A subsequent appropriator has actual notice that this amount 
 of water is withdrawn from all public claim, is absorbed, and 
 has become a vested right. He cannot base any claim upon 
 it. or upon any expectation that some time in the future it 
 will become the subject of appropriation. Should such prior 
 right be subsequently forfeited he gains nothing thereby, as 
 his rights are measured alone by what he could and actually 
 did claim at the time of his appropriation. Neither does he 
 loose anything, nor is he in any way damaged should the first 
 appropriator change h,is use, or the place thereof, for in either 
 event he still has left all he ever claimed or was entitled to 
 claim. The appropriation of water for placer mining pur- 
 poses at some specified place involves a somewhat similar 
 principle. It is such an actual appropriation of a definite 
 amount, and for such purpose as in the nature of things must 
 operate as a notice to all that its place of use must from time 
 to time, as the ground is worked, be changed. Should one 
 use the water after it passes from the works of the prior claim- 
 ant, he must do so at his own risk, and he cannot complain 
 that changes are made which he had full notice would likely 
 occur. In this action, however, the facts are quite different. 
 In 1886 the defendant located the water, specifying that it was 
 to be used at his mill for the purpose of power in operating
 
 §234] NATURE AND EXTENT OF KlCllTS. 379 
 
 machinerj^ and in concentratinja^ ores, and in pursuance of such 
 notice conducted it to such mill , and after there so using returned 
 it to the original channel of the stream from which it had been 
 taken, and practically undiminished in quantity or deteriorated 
 or changed in quality. The use made of it was purely usu- 
 fructuary and in no sense partaking of the nature of ownership 
 in the water. The defendant by its declarations and acts in 
 effect said to the world that the only use it had for the water 
 was at the place and in the manner specified, and that when 
 so used it had no further claim upon and abandoned it. Under 
 such circumstances there was neither direct nor implied notice 
 that it would be used elsewhere or for other purposes by de- 
 fendant. On the contrary, the public was justified in believing 
 that defendant had made the only use thereof intended; that 
 the same would continue; and that in the future it would be 
 returned to the creek as it had been. Would it not follow 
 from such facts that plaintiff, in claiming the water after its 
 return to the creek, was fully justified ? If justified in such 
 claim then protection thereof must follow. If the defendant's 
 position is sustained by the law it would follow that the prior 
 appropriator would in all cases so absolutely control the water, 
 to the extent of such appropriation, that no other person 
 could thereafter attempt any permanent use of it except at 
 great risk of loss, even when such use would not damage the 
 first appropriator. Suppose, in this case, the stream below 
 defendant's mill were lined with ore mills, all operated by the 
 same water as it passed from the wheels of one mill to the 
 next below, and all by appropriations subsequent to defendant. 
 Upon defendant's theory all such mills may be closed and 
 utterly destroyed whenever the latter concludes to modify his 
 plans and divert the water el.sewhere. Such a rule I am firmly 
 convinced is counter to the policy of the law. Instead of de- 
 veloping the country it would block its progress. Instead of 
 utilizing as generally as possible nature's elements for the 
 public good it would subject them to the arbitrary will of any 
 individual who might first assume a claim to tlu-ni. It would 
 be an extension of the maxim ' first in time, lirst in ri^ht, 
 far beyond the limits of equity or of justice. In this case the 
 facts are not limited simply to the approi)riati(>M <.f lln- water,
 
 380 
 
 NATURE AND EXTENT OF RIGHTS. [§ 234, 235 
 
 its use and return to the stream by defendant, but sucli status 
 continued for over three years before plaintiff located and 
 thereafter continued for over two years to use it without 
 objection by defendant, and before the latter attempted, 
 through the means stated, to interfere therewith. 
 
 "Even if defendant's original claim to the water, its 
 use and return to the stream, without any notice or reserva- 
 tion direct or implied, of any other use, did not constitute a 
 release of further claims it certainly should be held that the 
 continuation of such status for over five years must operate as 
 an abandonment of any further or different claim than that 
 exercised." 
 
 § 235. Amount Actually Needed for Purpose of Appro- 
 priation. — As we have seen, the special purpose or subject 
 for which the water is to be used often determines the extent 
 of the appropriator's right. ^ The later authorities, especially, 
 do not look so much to the size of the prior appropriator's 
 ditch at its smallest point to determine the extent of his right 
 in and to the water of the stream as did the. earlier authori- 
 ties,^ but upon the amount that is actually yieeded by the first 
 appropriator for the use or purpose to which he applies it. 
 This gradual change is due undoubtedly to the fact 
 that the irrigated portion of the arid west is rapidly becoming 
 settled up. And as the population increases and additional 
 lands are being settled upon, wdiich require water for irrigation 
 in order that they may be cultivated, the demand for water is 
 becoming each year greater. In the early days when settlers 
 in the arid region were scarce and there was plenty of water 
 for all if a person constructed a ditch of a certain capacity 
 and diverted water enough to fill it from the stream before the 
 rights of subsequent claimants to the water of the same stream 
 had accrued, the first appropriator's rights were considered 
 fixed by the capacity of the ditch. And although the ditch 
 might have a capacity of ten times the amount of water that 
 he needed for the purpose for which he had appropriated it, 
 but little regard was paid to that fact, and the only restric- 
 
 ivSee Sections 231 and 232. 2 See Ante Section 231.
 
 §235] NATURE AND EXTENT OF RKiHTS. 381 
 
 tion placed upon him was that he was not permitted to still 
 farther enlarge the capacity of his ditch and increase the 
 amount of the appropriation of the water as against the rights 
 of others who had laid claim to the surplus subsequent to him. 
 Also, as the experience of practical irrigators each year has be- 
 come greater it has been demonstrated in hundreds of in- 
 stances that the soil will yield larger and better crops 
 by not using so much water in irrigating as was at first 
 thought necessary. And as the demand became greater the 
 Courts have often stepped in and prevented wasteful diver- 
 sion of the water by holding that the mere diversion of tlie 
 same is not a legal appropriation of it, but that there must 
 be an application of all the water diverted within a reasonable 
 timeor the diversion of any portion not so applied is unlawful.' 
 It is very plain from these authorities that no matter how 
 early a person's prior appropriation may have been he is not 
 entitled to divert in his ditches more water than is necessary 
 for his actual use. An excessive diversion of water cannot 
 be regarded as a diversion to a beneficial use, within the mean- 
 ing of the law, so that the Courts will uphold the excessive 
 or wasteful diversion. Claimants in the arid west are too 
 numerous, water too scarce, and consequently too precious an 
 article to admit of waste. The universal rule of the arid 
 west, " that he who has the prior has the superior rights," 
 does not imply that the appropriator may be extravagantly 
 prodigal in dealing with this precious bounty of nature. 
 
 1 Canal, etc., Co. vs. Southworlli, Iliiidiiian vs. Rizor, 21 Ore. 112; 
 
 13 Colo, iii; 21 Pac. Rep. 102S; 27 Pac. Rep. 23; Siunnoiids vs. 
 
 McFadden vs. Board, 74 Cal. 571; Winters, 21 Ore. 35; 27 Pac. Rep. 
 
 16 Pac. Rep. 397; Schilling vs. 7; Combs vs. Agricultural Ditch 
 
 Rominger, 4 Colo. 100; Thomas Co., 17 Colo. 146; 2S Pac. Rep. 966; 
 
 vs. Guiraud, 6 Colo. 533; Sieber Drake vs. Karhart (Idaho), 23 Pac. 
 
 vs. Frink, 7 Colo. 149; 2 Pac. Rep. Rep. 541; Basey vs. Gallagher, 20 
 
 901. Wall. 6S1; Atchison vs. Peterson, 
 
 Wheeler vs. Northern Colo. Irr. 20 Wall. 507; Jennison vs. Kirk, 
 
 Co., 10 Colo. 582; 17 Pac. Rep. 4S7, 89 U. S. 461; Brodcr vs. Natonia 
 
 in which the Court held: "The Water Co., 101 V. S. 276. 
 
 diversion of water ripens into a ;\ person h.iving the ri^ht to 
 
 valid appropriation only when the tlie exclusive use of water (lowing 
 
 the water is utilized by the con- throuj^h a ditch constructed across 
 
 sumer." his land, at any point on said lanil
 
 382 
 
 NATURE AND EXTENT OF RIGHTS. 
 
 [§236 
 
 § 236. Authorities on Subject. — In the case of Simmons 
 vs. Winters^ the Supreme Court of Oregon held, that: " To 
 make a valid appropriation of water there must be some actual 
 beneficial purpose existing at the time or contemplated in the 
 future as the object for which the water is utilized. The 
 needs of the purpose for which the appropriation is made is the 
 limit to the amount of water which may be taken." 
 
 Also the same Court in the case of Hinman vs. Rizor,^ a re- 
 cent case, said: " The amount of water diverted by Cleaver 
 and Peters in 1863, from the best impressions we can gather 
 from the evidence, was about 80 inches. This quantity does 
 not seem to have been utilized by them during their occu- 
 pancy of the land. They had a right to appropriate water 
 sufficient for the present and contemplated necessary irriga- 
 tion of the land occupied by them, but the amount to which 
 their prior right attaches must be restricted to the quantity 
 needed for that purpose." And the Court also held in the 
 same case that an appropriator is entitled to have in the natural 
 bed or channel of the stream during the irrigating season 
 
 where he may desire to turn it for 
 irrigating purposes during the 
 spring and summer months, has 
 the preference during the season 
 when the condition of his premises 
 is such as to require the use of the 
 water for the purposes mentioned, 
 but has no right to waste it at any 
 time, or to use it extravagantly or 
 imprudently. Huston vs. Bybee, 
 2 L. R. A. 56S; 17 Ore. 140; 20 Pac. 
 Rep. 51. 
 
 See also Stowell vs. Johnson, 7 
 Utah, 215; 26 Pac. Rep. 290, in 
 which the Court, in a suit con- 
 cerning the waters of a certain 
 stream , where it was found that the 
 defendants had appropriated all 
 the waters of said stream for 
 the irrigation of their lands, which 
 was a necessary and beneficial use 
 thereof, dating from the year 
 1848, and so continued to appro- 
 
 priate and use said waters during 
 each and every part of each and 
 every year thereafter to the inter- 
 ruption thereof by the plaintiffs, 
 and in 1882 diverted part of the 
 waters of the tributaries of the 
 stream daring the winter season, 
 and continued so to divert it for 
 a useful purpose until 1888, 
 when the Court found that the de- 
 fendants did not need during the 
 winter season the water diverted 
 by the plaintiffs held, that a de- 
 cree that the plaintiffs were en- 
 titled to the water diverted by 
 them during the winter season 
 was not contrary to the findings. 
 
 Kirk vs. Bartholomew (Idaho), 
 29 Pac. Rep. 40; Quigley vs. Birds- 
 eye, II Mont. 439; 28 Pac. Rep. 
 741. 
 
 1 21 Oregon, 35; 27 Pac. Rep. 7. 
 
 221 Oreg. 112; 27 Pac. Rep. 13.
 
 §236,237] NATURE AND EXTENT OF RIGHTS. 383 
 
 a certain number of inches of the water, if her priority 
 will warrant the same; but if she does not need that 
 amount she must allow the surplus to remain in the 
 stream, and cannot complain if it is used by other settlers 
 upon the creek, whether above or below. And the Court held 
 that one who has appropriated a certain quantity of the wa- 
 ters of the stream, but has only used a portion thereof for four 
 years, is entitled as against a subsequent appropriator only to 
 the quantity of water actiially used. 
 
 § 237. Same.— Continued.— In Nevada the Supreme Court, 
 in the case of Barnes vs. Sabron,^ said: " If plaintiff did not 
 require the full amount of his appropriation he could not hold 
 the defendants responsible in damages for not turning it 
 down to him; he was only entitled to as much water — within 
 his original appropriation — as was necessary to irrigate his 
 land, and was bound under the law to make a reasonable use 
 of it. In a dry and arid country like Nevada where the rains 
 are insufficient to moisten the earth and irrigation becomes 
 necessary for the successful raising of crops, the rights of 
 prior appropriators must be confined to a reasonable and nec- 
 essary use. The agricultural resources of the State cannot 
 be developed and our valley lands cannot be cultivated with- 
 out the use of water from the streams to cause the earth to bring 
 forth its precious fruits. No penson can by virtue of a pricr ap- 
 propriation claim or hold any more water than is necessary for 
 the purpose of his appropriation. Reason is the life of law, and 
 it would be unrea.sonable and unjust for any person to appro- 
 priate all the waters of a creek when it is not necessarj' to use 
 the same for the purposes of his appropriation. 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 circum- 
 stances of each particular case. * * * jf tj^e capacity of 
 his ditches is greater than is necessary to irrigate his fanning 
 land he must be restricted to the quantity needed for the pur- 
 poses of irrigation, for watering his stock and for domestic 
 
 1 lo Nev. 243.
 
 384 NATURE AND EXTENT OF RIGHTS. [§ 237 
 
 purposes. If, however, the capacity of his ditches is not more 
 than sufficient for those purposes then, under all the facts of 
 his case, no change having been made in either of plaintiff's 
 ditches since they were constructed, and no question of the 
 right of enlargement being involved, he must be restricted 
 to the capacity of his ditches at their smallest point; that is, 
 at the point where the least water can be carried through 
 them." 
 
 In the case of Kirk vs. Bartliolemew^ the Court held that: 
 " In determining the amount of water appropriated 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." 
 
 In Combs vs. Agricultural Ditch Co. ^ the Court held that: 
 In determining a controversy as to water rights not only the 
 actual prior appropriations of water but the quantity of land 
 and character of the soil to be irrigated are to be considered, 
 and also that no person can appropriate more water than he 
 has actual use for. 
 
 But this is not all, the Supreme Court of the United States, 
 in nearly all of the few cases involving the rights to water 
 that have been appealed to that Court from the arid region, 
 has touched upon this subject in such a manner that it is 
 plain that if a case should be taken up to the Court involving 
 this question of wasting water it would be decided against 
 the parties so wasting it. 
 
 In the case of Atchison vs. Peterson,^ decided in 1874, 
 Mr. Justice Miller, in giving the opinion of the Court, said: 
 "The right to water by prior appropriation, thus recognized 
 and established as the law of miners on the mineral land of 
 the public domain, is limited in every case in quantity 
 and quality by the uses for which the appropriation is made. 
 A different use of the water subsequently does not affect the 
 right; that is subject to the same limitations whatever the use. 
 The appropriation does not confer such an absolute right to 
 
 1 (Idaho) 29 Pac. Rep. 40. 2 17 Colo. 146; 28 Pac. Rep. 966. 
 
 3 20 Wall. 514.
 
 §237] NATURE AND KXTENT OF RIGHTS. 385 
 
 the bod}- of the water diverted that the owner can allow it 
 after its diversion to run to waste and prevent others from 
 using it for mining and other legitimate purposes; nor does it 
 confer such a right that he can insist upon the flow of the 
 water without deterioration in quality, where such deteriora- 
 tion does not defeat or impair the uses to which the water is 
 applied." 
 
 And also in the case of Basey vs. Gallagher,^ decided in the 
 same year, Mr. Justice Field, speaking for the Court, said: 
 " Water is diverted to propel machinery in flour mills and 
 saw mills, 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 appropriator exercised within reasonable 
 limits is respected and enforced. We say within reasonable 
 limits, for this right to water, like the right by prior occu- 
 pancy to mining ground or agricultural land, is not unre- 
 stricted. It must be exercised with reference to the general 
 condition of the country and the necessities of the people, and 
 not so as to deprive a whole neighborhood or conununity of 
 its use, and vest an absolute monopoly in a single individual." 
 From these authorities there can be no question but that: 
 First, the object had in view at the time of an appropriator's 
 diversion of the water must be considered in connection with 
 the actual extent of his appropriation: Second, if the capacity 
 of his ditch is greater than is necessary to irrigate his land 
 under cultivation, or to be cultivated, or will carry more 
 water than is needed for the purpose for which it is diverted, 
 the appropriator will be restricted by the Court to a reasonable 
 quantity actually needed for that purpose. Third, if how- 
 ever the capacity of his ditch is not more than sufficient to 
 carry the amount of water for the purpose to which the water 
 is applied, and if the rights of others to the waters of the stream 
 have accrued since his appropriation was completed, then the 
 appropriator must be restricted to the capacity of his ditch at 
 its smallest point as the maxhnum amount of water that he 
 can divert under his ai^propriation. if in extending that 
 
 1 20 Wall. ()70.
 
 386 NATURE AND EXTENT OF RIGHTS. [^ 237, 238 
 
 amount the rights of those claiming subsequent to him are im- 
 paired or injured in any manner.^ 
 
 § 238. Appropriiitor Not Limited to First Amount 
 
 Useil. — We have seen that a person could not appropriate 
 more water than was necessary' for the purpose or use to which 
 it was intended to be applied. But the authorities agree upon 
 the proposition that if the amount of water appropriated is 
 within the given beneficial purpose for which it was first 
 taken, as for example no more than is necessary to irrigate 
 the lands contemplated to be reduced to cultivation as soon as 
 can be reasonably done, although more than can be beneficially 
 used in the immediate present, it is nevertheless a valid ap- 
 propriation.^ 
 
 If the purpose contemplated is that of irrigation, while he 
 cannot divert more water than is necessary to irrigate his 
 lands which he intends eventually to cultivate; nor can own 
 or hold by possessory title any waters for which he has no 
 use, yet he is not required in order to make his appropriation 
 valid to apply to a beneficial use or purpose during the first 
 years of his settlement the full amount of water appropriated 
 when such amount is not more than is necessary to irrigate 
 the lands he intends to subject to cultivation, and to irri- 
 gate which the original appropriation was made. What con- 
 stitutes a reasonable time in which all the water appropriated 
 must be applied to some useful purpose is a question of fact for 
 the jury to decide, and depends upon the peculiar circum- 
 stances of each case. In determining the quantity of water 
 a person is entitled to use for irrigating purposes it is 
 proper for the jury to consider the acts of the appropriator, 
 then the manner in which the ditch was constructed, the gen- 
 eral size, etc.; also it is proper for them to consider the num- 
 ber of acres to be cultivated, the quality of the land, the 
 character of the soil and the amount of water necessary for its 
 proper cultivation. The appropriator will not be limited to 
 the quantity turned into his ditch in the first place unless by 
 
 1 Byrne vs. Crafts, 73 Cal. 641. Simmons vs. Winters, 21 Or. 35; 
 See also authorities cited above. 27 Pac. Rep. 9; Pomeroy on Rip. 
 
 2 Barnes vs. Sabron, 10 Nev. 243; Rights, 47.
 
 §238,239] NATURE AND EXTENT OF lilUHTS. 387 
 
 the general plan, size and grade of the ditch it was not capable 
 of carrying more than was first diverted. If, however, by 
 reason of any obstructions or irregularities in the grade of the 
 ditch it was not capable of diverting as much water as its 
 general size would indicate, and as the general quantity of 
 land to be irrigated for which the appropriation was made 
 would reasonably require, the appropriator will be allowed a 
 reasonable time to remove such obstructions or adjust the 
 grade, reduce his land to cultivation and then fill his ditch to 
 its full capacity.' 
 
 § 239. Same.— Continued.— Upon this subject the decision 
 
 in the case of Conant vs. Jones^ is the latest authority. The 
 case was decided Feb 8th, 1893, and in rendering the opinion 
 the Court said: "It is contended that respondent has not 
 used or put to a beneficial use all of the water of said creek, 
 and for that reason he has forfeited his right to all of the 
 water not used for the purpose intended. It is true that the 
 evidence fails to show that respondent has utilized the entire 
 amount of water diverted. There is no question but what 
 respondent has the right to appropriate of unappropriated 
 water sufiicient, not only for the present, but also for the 
 future needs of his land when he shall get it into cultivation. 
 The question arises as to the diligence to be exercised in the 
 application of the water to the intended use. Section 3 161, 
 Rev St. 1887, declares the diligence necessary to be exer- 
 cised in conducting the water to the point of intended use 
 after the location of the same; but tlie law is silent as to 
 
 1 Barnes vs. Sabron, 10 Nev. 217; tlie lands cultivated within a rea- 
 
 White vs. Todd's V. W. Co., 8 sonable time before subsequent 
 
 Cal. 443; N. C. & S. C. Co. vs. rights accrue; and in a case where 
 
 Kidd, 37 Cal. 314; Simmons vs. it appears within 10 years or more 
 
 Winters, 21 Or. 27; 35 Pac. Rep. 7; he had cultivated only 12 acres, 
 
 Hindman vs. Rizor, 21 Or. 112; 27 and permitted a portion of such 
 
 Pac. Rep. 13; Kirk vs. Bartholo- cultivated land to grow up in wil- 
 
 mew (Idaho), 29 Pac. Rep. 40; lows, he was entitled to an 
 
 Combs vs. Agricultural Ditch Co., amount only sufiicient to irrigate 
 
 17 Colo. 146; 28 Pac. Rep. 966. the cultivated land. Cole vs. Lo- 
 
 A prior appropriator is entitled gan (Ore.), 33 Pac. Rej). 5()S. 
 
 only to sufficient water to irrigate 2 (Idaho) 32 Pac. Rep. 250.
 
 388 NATURE AND EXTENT OF RIGHTS. [§ 239, 240 
 
 the diligence to be exercised in making application of the 
 water appropriated. The appropriator would no doubt be en- 
 titled to a reasonable time in which to get his land in cultiva- 
 tion and to make such appropriation. If that be true, it fol- 
 lows that what constitutes reasonable time is a question of 
 fact dependent on the circumstances of each particular case. 
 No inflexible rule should be made by which to decide what 
 constitutes a reasonable time in this matter. We are of the 
 opinion that a person who complies with the law as to locat- 
 ing and conducting the water to the point of intended use has 
 such time as he may need or require, using ordinary diligence 
 in getting his land into cultivation, to make application of 
 such water to the intended use; such time, at least, as is rea- 
 sonable under all of the circumstances of the case. Poor men, 
 as a rule, have settled upon the arid lands of this State and 
 taken them under the laws of Congress, many of them under 
 the homestead law, and are able to clear but a small portion 
 of such lands of sage brush from year to year and put it in 
 condition for raising a crop; and it will take years for many 
 of them to prepare their entire farms for cultivation and to 
 make application of the water appropriated thereto. A de- 
 cision that would defeat persons acting in good faith and using 
 reasonable diligence from securing the full benefit of the water 
 appropriated would be most unjust and inequitable. In the 
 meantime, however, he is only entitled to such water from 
 year to year as he puts to a beneficial use. A person may add 
 from year to year acreage to his cultivated land and increase 
 his application of water thereto for irrigation as his necessities 
 may demand, as his abilities may permit, until he has put to 
 a beneficial use the entire amount of water at first diverted by 
 him and conducted to the point of intended use." ^ 
 
 § 240. Theory of "Equitable Diyision" of Water Con- 
 troverted. — The Court in the case of Basey vs. Gallagher, ^ 
 said: "The right of the first appropriator, exercised within 
 reasonable limits, is respected and enforced. We say within 
 reasonable limits, for this right to water, like the right by 
 
 1 But see Cole vs. L,ogan (Ore.). ^ 20 Wall. 760. 
 
 33 Pac. Rep. 568.
 
 §240] NATURE AND EXTENT 01? RIGHTS. 389 
 
 prior occupancy to mining ground or agricultural land, is not 
 unrestricted. It must be exercised vnth reference to the gen- 
 eral condition of the county and necessities of the people." 
 By some this language has been seized upon to mean, that an 
 equitable if not an equal division of the water of a certain source 
 of supply among all needing it is what the Court intended, re- 
 gardless of the claim of the prior appropriator. This, however, 
 we do not think to be the rule laid down by the decision.^ 
 
 In the case of Kirk vs. Bartholomew the Supreme Court 
 of Idaho in reversing the judgment of the trial Court on 
 this interpretation of the portion from the opinion quoted 
 above based its decision upon the almost universal law in the 
 arid region that "he who has the prior, has the superior 
 right," and said : "The statutes of this State in regard to 
 water-rights evidently did not meet with the approval of the 
 learned judge who tried this case. He brushes them aside, 
 and evidently undertakes to make the judgment herein con- 
 form to his ideas of what the law ought to be, and in some 
 future time to make it conform to a constitution and laws 
 thereafter to be adopted and enacted. 'As between appro, 
 priators, the one first in time is the first in right.' The law 
 is thus written. The law-making power only has the right 
 to repeal or amend it. It cannot be repealed or amended by 
 the Court, but must be enforced as long as it remains the law, 
 even if harsh and unjust. The Court below should have de- 
 termined the amount of water appropriated for a useful or ben- 
 eficial purpose by each of the parties, and, in case any of the 
 parties were not the original appropriators, the Court should 
 have determined the amount of water appropriated by the 
 party from whom he deraigned title; should also have de- 
 termined the date of each appropriation, and the priority of 
 right of each of the parties, as the statute directs, to-wit: 'As 
 between appropriators, the one first in time is the first in 
 right.' " 
 
 1 See dissentiii}^ <j])iiiioii of (juoted in opinion l)y Snprcinc 
 
 Berry, J, in the case of Drake vs. Court (hl.ilio), 2i) I'ac. Rt-p. .Ji, of 
 
 Earhart (Idaho), 23 I'ac. Rep. 541. Idaho upon reversal of tlic jud«- 
 
 And also judgment of District nunt of tin- Court hilow. 
 Court, in Kirk vs. Hartlioloniew,
 
 390 NATURE AND EXTENT OF RIGHTS. [§241 
 
 § 241. Slime.— Basey vs. Gallagher Construed on Subject.— 
 
 A construction of the sentence from Basey vs. 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 can not be jus- 
 tified. In the first place this construction would be inconsistent 
 with the final decision of the Court in that case, which 
 arose out of a controversy between several parties claim- 
 ing the water of a certain stream for irrigation by virtue of 
 their having at different dates respectively appropriated it 
 for that purpose. The Court decided in favor of the plaintiff, 
 who appropriated the water first, and thus affirmed the decree 
 of the Supreme Court of Montana, which had granted an in- 
 junction against the defendants prohibiting them from any 
 diversion of the water from the stream. 
 
 Neither is the construction consistent with other decisions 
 of the Supreme Court of the United States. 
 
 In Jennison vs. Kirk^ the Court said: "By the customary 
 law of miners in California, as we understand it, the owner of 
 a mining claim and the owner of a water right enjoy their 
 respective properties from the dates of their appropriations, 
 the first in time being the first in right; but where both rights 
 can be enjoyed without interference with or material impair- 
 ment of each other the enjoyment of both is allowed." Tak- 
 ing the converse of this proposition, it means when both 
 rights can not be enjoyed without interference or material im- 
 pairment of each other the enjoyment of the first will only be 
 allowed, since he being first, is first in right. ^ From these 
 authorities it is evident that all the Court meant by the lang- 
 uage quoted is, that the first appropriator shall not be allowed 
 more than he needs for the purpose for which he uses the 
 water. In other words he shall not, by wasting iL, or by ap- 
 propriating more than is necessary for his purpose, deprive his 
 neighbor of what he has not actual use for. It clearly follows, 
 as all the higher Courts have certainly held, that when all 
 
 1 98 U. S. 461. tion of this section b}' the Court 
 
 2 .-.ee also ninth section of Act in the case of Atchison vs. Peter- 
 
 of Congress of July 26, 1866; 14 son, 87 U. S. 507. 
 
 Stat, at L. 253. Also the construe-
 
 ^ 241, 242] NATURE AND EXTENT OF RIGHTS. 
 
 301 
 
 can not use the water without injury to the prior appropriator 
 the subsequent appropriator must yiekl to his superior right.' 
 
 §242. Hilliiiaii vs. Ilarduick et al.-In the case of Hill- 
 man vs. Hardwick et al.^the evidence showed that there 
 was about eighty or one hundred inches of water in a certain 
 stream, and the plaintiff claimed by virtue of a prior appro- 
 priation one hundred and twenty -five inches of water, but 
 despite the fact that his claim to this amount and his actual 
 application of all of the water to a beneficial purpose was 
 proven, the trial court rendered a judgment giving the defen- 
 dants permission to divert something like eight hundred inches 
 over and above the amount claimed by the plaintiff. The 
 Supreme Court reversed the judgment below, and in the 
 opinion rendered Mr. Justice Horton said: "We then liave 
 this anomalous condition of affairs: A creek or stream of 
 water flowing one hundred inches of water, with appropria- 
 tions of that water to the amount or extent of eight hundred 
 inches in addition to the prior appropriation by the plaintiff 
 of all the water of the creek and its tributaries. To the ordi- 
 nary mind this might, and perhaps does, present a somewhat 
 difficult problem for judicial solution, unaided by the statutes; 
 but the learned district judge found no difficulty whatever in 
 reaching a conclusion as unique as it is unprecedented. We 
 say unprecedented, because this question, under statutes 
 identical with that of Idaho, has been decided so often in 
 favor of the prior appropriator that it has been generally con- 
 sidered both by professionals and profanes as a settled ques- 
 tion; as for instance, the question has been decided up to 1889 
 twice by the Supreme Court of the United States, seventeen 
 times by the Supreme Court of California, five times by the 
 Supreme Court of Colorado, six times by the Supreme Court 
 of Nevada, twice by the Supreme Court of Montana, once by 
 the Supreme Court of New Mexico, twice by the Supreme 
 Court of Utah, once by the Supreme Court of Oregon, and 
 repeatedly by the Supreme Court of Idaho; in fact the 
 decision of the leanud district judge in this case Clauds 
 
 ISee Ante Sections 225-227. 2(1,];, Iw,) 2H I'.ic. Kc-p. .13.S.
 
 392 NATURE AND EXTENT OF RIGHTS. [§ 242, 243 
 
 alone. We have been unable b}^ the most diligent search 
 to find a precedent or a parallel for it. Heroically set- 
 ting aside the statute, the decisions and the evidence in 
 the case, he assumes the role of Jupiter Pluvius, and dis- 
 tributes the waters of Gooseberry Creek with a beneficent 
 recklessness which makes the most successful efforts of 
 all the rain-wizards shrink into insignificance, and which 
 would make the hearts of the ranchers on Gooseberry dance 
 with joy if only the judicial decree could be supplemented 
 with a little more moisture. The individual who causes two 
 blades of grass to grow where but one grew before is held in 
 highest emulation as a benefactor of his race. How then shall 
 we rank him who, by judicial fiat alone, can cause four hun- 
 dred inches of water to run where nature only put one hun- 
 dred inches ? (We vail our faces, we bow our heads before 
 this assumption of judicial power and authority.) * * * 
 Evidently" the Court assumed that Gooseberry Creek was as 
 inexhaustible as the widow's cruise, or else that its decree 
 possessed the potency of Moses' rod. All the provisions of 
 the statute in regard to priority of right incident to priority of 
 appropriation are ignored, as are the sources and volume of 
 supply." 
 
 § 243. Might to lleiuove Obstructions froui Streiini and 
 Ditch. — An appropriator of the waters of a natural stream 
 flowing through the public domain acquires a right as against 
 subsequent purchasers from the United States to go upon the 
 land of such purchasers or their grantees higher up the stream 
 than the point of diversion and remove obstructions from the 
 bed of the stream so as to cause the water to flow in its 
 natural channel to the point of diversion and through his 
 canal or ditch to the place where it is to be used, as it was 
 wont when he first made the appropriation.^ Also, the owner 
 of the ditch has a right to go upon the lands of others and 
 remove obstructions from the ditch itself. The prior appro- 
 priator by the construction of his ditch and the appropriation 
 and use of the waters of the stream acquires as against the 
 subsequent patentee of the Government as complete and per- 
 
 1 Ware vs. Walker, 70 Cal. 591.
 
 §243,244] NATURE AND EXTENT OF RIGHTS. 393 
 
 feet a right to maintain his ditch and to have the water flow 
 to, in and through the same as though such right or easement 
 had vested in him by grant from the government when he 
 made his appropriation. Such a right or easement carries 
 with it an implied authority to do all that is necessary to re- 
 ceive the full enjoyment of the right or easement itself. ' ' The 
 express or implied grant of an easement is accompanied by 
 certain secondary easements necessary for the enjoyment of 
 the principal one."^ 
 
 If, from natural causes, the stream becomes obstructed by 
 deposits of gravel, fallen trees, or any other substance, so as to 
 prevent the flow of water to the head of the appropriator's 
 ditch the owner of the soil, as the servient tenement, is under 
 no obligation to remove these obstructions for the appropria- 
 tor's enjoyment of his right to the water. Hence it follows 
 that the duty of making the repairs essential to the appro- 
 priator's enjoyment of the easement devolves entirely upon 
 himself. In the exercise of this right to remove obstruc- 
 tions the appropriator must do so in a reasonable and 
 proper manner and perform such acts as are essential to his 
 enjoyment of the water without damage to the owner of the 
 land through which his ditch runs.- 
 
 § 244. Repair of Ditches.— Not only has the prior appro- 
 priator the right to enter upon another's land in order to 
 remove obstructions from the stream or ditch when they inter- 
 fere with his right to the flov.' of the water down to and upon 
 his own lands, but it is his duty, when water is conducted 
 through a ditch passing through another's land, to keep the 
 ditch in such repair that the water will not pass over the banks 
 and flood or injure in any manner the lands of others.' 
 
 IGale & Whatleyon Kasements, that: "The (luestion of uckIi- 
 
 Am. Ed. 215, 231; Taylor vs. j^eiice in the manj-.geiiicnt of such 
 
 Whitehead, 2 Doug. 745. property, and the degree of it. 
 
 2See Prescottvs. White,2i Pick. must necessarily depend in a 
 
 341; 32 Am. Dec. 266; Prescott vs. great measure upon the surround- 
 
 Williams, 5 Met. 429; 39 Am. Dec. ing facts, such as the existence 
 
 683 and exposure of j)roi)erty helow 
 
 3See\Volf vs. St. Ivouis Water the dam or under the ditch and 
 
 Co., 10 Cal. 541, where it was held the like, for what under one state
 
 394 
 
 NATURE AND EXTENT OF RIGHTS. 
 
 [§244 
 
 If through any fault or neglect of the owner of the ditch in 
 not properl}^ managing and keeping it in repair the water does 
 overflow or break through the banks of the ditch and injure 
 the lands or property' of others, either by washing over the 
 soil, covering the soil with sand, flooding crops, or doing any 
 other injury to others, the law holds him responsible for his 
 negligence.^ If the ditch-owner uses a ravine or natural water 
 course as a part of his ditch he is not responsible for injuries 
 done by the natural waters thereof, but only for such overflow 
 as is caused by his use of the water-course as a part of his 
 ditch. ^ He is bound to see that no injury results to others in 
 consequence of his act; and if injury does result from the use 
 
 of facts would be prudence might 
 under a different condition of 
 things be gross or even criminal 
 negligence." 
 
 Richardson vs. Kier, 34 Cal. 63; 
 37 Cal. 263; Robinson vs. Black 
 Diamond Coal Co., 57 Cal. 412; 50 
 Cal. 460; Chidester vs. Consoli- 
 dated Ditch Co., 59 Cal. 197; 
 Mathews vs. Kinsell, 41 Cal. 512; 
 Campbell vs. Bear River Co., 35 
 Cal. 679; Darst vs. Rush, 14 Cal. 
 81; Flickenger vs. Shaw, 87 Cal. 
 T26. 
 
 Crisnian vs. Heiderer, 5 Colo. 
 589, where it was held that while 
 one may have the right to enter 
 the bed of a stream above his 
 ditch, and to remove obstructions 
 which may have changed or ob- 
 structed the course of the current 
 so as to prevent the water from 
 entering his ditch, and has im- 
 plied authority to do all that 
 should become necessary to se- 
 cure the benefit of the appropria- 
 tion of the water and may acquire 
 an easement in the adjoining land, 
 yet the right thus acquired must 
 be held to the narrowest limits 
 compatible with the enjoyment of 
 the principle easement, which is 
 
 the right to use the water. The 
 most reasonable mode of effecting 
 the object must be adopted. The 
 controlling principle is that the 
 water shall be diverted in such a 
 manner as not to damage or seri- 
 ously endanger the lands of own- 
 ers upon the margin or banks of 
 the stream. 
 
 See also McCauley vs. IMcKeig, 
 8 Mont. 389. 
 
 llbid. Broom's Legal Maxims, 
 329; Hoffman vs. T. W. Co., 10 
 Cal. 416; Wolf vs. St. Louis Ind. 
 Co., 10 Cal. 344; Turner vs. Tuo- 
 lumne W. C, 25 Cal. 403. 
 
 - Richardson vs. Kier, 34 Cal. 63, 
 in which Judge Sanderson stated 
 upon the question : ' ' He is bound 
 to keep it in good repair, so that 
 the water will not break through 
 or overflow its banks and destroy 
 or damage the lands of other par- 
 ties; and if, through an}- fault or 
 neglect of his in not properly 
 managing and keeping it in repair, 
 the water does overflow or break 
 through the banks of the ditch 
 and injure the land of others, 
 either by washing away the soil or 
 b}? covering the soil with sand, the 
 law holds him responsible."
 
 § 244, 245J NATURE AND EXTENT OF RIOHTS. 
 
 395 
 
 of any ravine, either through his necessity or convenience in 
 using the same, he is liable for all damages thereby caused.' 
 It makes no difference in this respect whether the appro- 
 priator or the owner of the lands who was injured has the 
 prior right of title. The appropriator is bound in the con- 
 struction and maintainauce of his dam, ditches and other 
 works to so construct and maintain them as discreet and pru- 
 dent men ordinarily do or should do in such cases, where 
 their own interests are to be affected. - 
 
 §345. Injuries to Ditches by Owner of Lund.— A prior 
 appropriator has an easement over the lands of the subsequent 
 patentee of the government of the right-of-way for his ditch; 
 and to this easement the appropriator has a property right 
 that the patentee cannot invade, from the fact that he takes 
 his title to the land subject to the appropriator's rights.-'' It 
 is well settled that all parties whose rights accrued subsequent 
 to those of the appropriator will be not only restrained from 
 interfering with and from destroying or washing away the 
 ditch belonging to another person who claims his right in and 
 to the same by virtue of priority, but they will al.so be liable 
 in damages for any injuries they may have caused 
 through their negligence in iuvadiiig the property riglits of 
 the appropriator."* 
 
 This doctrine is affirmed in Wolf ter XL, Sees. 324-329. Clark vs 
 
 vs. vSt. Louis W. Co., 10 Cal. 541; Willett, 35 Cal. 534. 
 Robinson vs. Black Diamond Coal Gregory vs. Nelson, 41 Cal. 278, 
 
 Co., 50 Cal. 460: Darstvs. Rush, 14 wliere it was held that if a party 
 
 Cal. 81; Campbell vs. Bear River owns a ditch and a right of way 
 
 Co., 35 Cal. 679; Mathers vs. Kin- for the same to conduct water for 
 
 sal, 41 Cal. 513. mining purposes, and has acquired 
 
 ^ Ibid. such right by priority of location, 
 
 ^Hoffman vs. Tuolomne, etc., the Court should not, in an action 
 
 Co., 10 Cal. 413; Wolf vs. St. Louis, to enjoin another party from 
 
 etc., Co., 10 Cal. 541. washing away the ground over 
 
 3 See ninth Section Act of Con- which it passes, liniil the i)laint- 
 
 gress, July 26th, 1866; Crisman vs. iff's right by alhjwing the de- 
 
 Heiderer, 5 Colo. 589. fendant to wash away the »Iitch if 
 
 4 This subject will be more Ihor- he builds a flume or other nquc- 
 
 oughly discussed under the title duct in place of the ditch, of fuf- 
 
 of " Legal .Remedies." Sec Chap- ficient cjii)a(ity to tarry the water
 
 396 NATURE AND EXTENT OF RJGHTS. [§245,246 
 
 If one owns a ditch and right-of-way for same a Court of 
 equity has no authority by its judgment to allow the ditch to 
 be washed away for mining purposes, even after providing 
 that such portion of the ditch as might be destroyed should 
 be replaced by a metal pipe or flume which would answer all 
 purposes of the ditch. The Court should not license a tres- 
 pass on such property, or compel the owner thereof to ex- 
 change the same for other property for the convenience of a 
 private person.^ 
 
 § 246. Api)ropriiitoi's lliglit to Use Natural Bed of Stream 
 to Convey the Water. — One of the most essential elements 
 of a valid appropriation, based as that appropriation is upon 
 a mere possessory right, is that there shall be an actual diver- 
 sion of the water from the natural stream.^ But the authori- 
 ties hold, that after the water has once been diverted from its 
 natural channel it may be turned back into the stream from 
 which it was originally taken and be recaptured at a point below 
 by the appropriator, provided the rights of others are not in- 
 juriously affected thereby; thus using the natural stream for 
 the time being as a canal for conducting the water to a lower 
 point upon the same.^ 
 
 and give bond to pay the damages Under the Act of Congress of 
 sustained thereby. July 26th, 1866, one has a right to 
 The question of injunction was construct a ditch across the public 
 discussed in Atchison vs. Peter- lands of the United States, sub- 
 son, 20 Wall. 507, and the Court ject only to the liability of paying 
 held that: "Whether a court of for any damage to the possessions 
 equity will interfere to restrain of a settler on the lands, 
 acts claimed to be injurious to Hobart vs. Ford, 6 Nev. 77; 
 the rights of a prior appropriator vShoemaker vs. Hatch, 13 Nev. 261. 
 of water will depend upon the l Gregory vs. Nelson, 41 Cal. 
 character and extent of the injury 278. 
 
 alleged, whether it be irremediable 2 Ante Chapter VI, Sees. 162, 
 
 in its nature, whether an action at 163 and cases cited; Parks Canal 
 
 law would afford an adequate Co. & M. C. vs. Hoyt, 57 Cal. 44; 
 
 remedy, whether the parties are Kidd vs. Laird, 15 Cal. 162. 
 
 able to respond for the damages 3 Richardson vs. Kier, 37 Cal. 
 
 resulting from the injury, and 263; Butte Canal Co. vs. Vaughn, 
 
 other considerations which ordi- 11 Cal. 143; Brown vs. Mullin, 65 
 
 narily govern a court of equity in Cal. 89; Schultz vs. Sweeney, 19 
 
 the exercise of its preventive pro- Nev. 359. 
 
 cess of injunction."
 
 §246] 
 
 NATURE AND EXTEXT OF UKiHTS. 
 
 397 
 
 In a case decided by tlie Supreme Court of Oregon in 
 1891,^ the Court said on this point: "As there must bean 
 actual diversion of the water from its natural channel by 
 means of a ditch or other structure to affect the appropriation, 
 any dry ravine, gulch, or hollow in the laud may be used for 
 this purpose as a part of the ditch for conducting the water. 
 Not only may these be used by the appropriator as a part of 
 his ditch, but he may use the lower portion of the bed or 
 channel from which the water is taken."- 
 
 If, however, a person causes water appropriated by him to 
 be discharged back into the stream from which it was taken, 
 and thus mingles it again with the waters of the stream as a 
 matter of convenience, the burden of proof is upon him in all 
 controversies concerning his right to establish the absence of 
 intent to abandon the water. -^ 
 
 If the stream is a mere torrent, dry at certain seasons of the 
 year, it may also be used as a part of a ditch to conduct waters, 
 and such use does not work as an abandonment of such waters 
 so conducted, although it gives no right to divert or use the 
 natural water of the stream as against any prior appropriator 
 of the same.^ 
 
 1 Simmons vs. Winters, 27 Pac. 
 Rep. 9. 
 
 2 Citing Pomeroy Riparian Rights 
 Section 48. 
 
 :^ Butte Canal Co. vs. Vaughn, 11 
 Cal. 143; Wilcox vs. Hausch, 64 
 Cal. 461; Hoffman vs. Stone, 7 Cal. 
 
 47- 
 
 Also see case of Schultz vs. 
 Sweeney, 19 Nev. 359, where it 
 was held that in a case where 
 water had been discharged into a 
 natural stream as a matter of con- 
 venience, and for the purpose of 
 getting rid of the water, without 
 any intention of reclaiming it, it 
 becomes part of the waters of the 
 natural stream, and is subject to 
 the same rights as the water 
 naturally flowing therein. 
 
 ^Hoffman vs. Stone, 7 Cal. 46; 
 Burnett vs. VVhitesides, 15 Cal. 35; 
 Anaheim W. Co. vs. vSenii-Tropic 
 W. Co., 64 Cal. 185. 
 
 One who obtains from another, 
 who has the right to conduct 
 through a natural stream waters 
 artificially carrie<l to it, a license 
 to remove obstructions in the 
 stream and to turn water into it 
 for his own use is not enlilleil to 
 take out more water than lie turns 
 into it, to the prejudice of the 
 rights of the other parly who is 
 the lower owner. Paige vs. Rocky 
 Ford Canal & Ir. Co., 83 Cal. 84; 21 
 Pac. Rep. 1 102, afllrmeil on re- 
 hearing, 83 Cal. 84; 23 Pac. Rep. 
 875. Also see 4 Pac. Rep. 1152.
 
 398 NATURE AND EXTENT OF RIGHTS, [§ 247 
 
 § 217. Point Wliere Property Right of Appropriator 
 Begins. — The right of the prior appropriator to have the 
 water flow in the stream to the head of his ditch is an incor- 
 poreal hereditament appurtenant to his ditch and co-extensive 
 with his right to the ditch itself.^ The appropriator can have 
 no property rights in or to the water itself until it enters his 
 ditch from the natural stream, yet the right to have it flow 
 into the same appertains to the ditch itself. That the appro- 
 priator can have no property whatever in the water of a 
 stream while it is flowing in its natural channel or bed, and 
 before it reaches the head or commencement of his ditch, 
 where the water is diverted from the stream, is one of the 
 doctrines of the Pacific States which may be considered well 
 settled.^ 
 
 Upon this question Mr. Justice McKinstry, in giving the 
 opinion of the Supreme Court of California in the case of Parks 
 Canal & Mining Co. vs. Hoyt,-^ said: " For the purposes of 
 this decision it may be admitted that water acquired by ap- 
 propriation (to be sold to miners and others), by means of a 
 ditch leading from a natural stream, becomes after it has 
 passed into a ditch the personal property of the appropriator. 
 Further, it may be admitted that if water be taken or diverted 
 from the ditch without the consent of the appropriator he 
 may waive the tort and bring an action for the. value of the 
 water taken. Nevertheless, although such appropriator may 
 be entitled to the flow of the stream, undiminished, the water 
 in the stream above his ditch is not his personal property. 
 The stream as yet flows in its natural course — a part of the 
 realty. The appropriator certainly does not become the 
 owner of the very body of the water until he has acquired 
 control of it in conduits or reservoirs created by art or applied 
 to the purpose of leading or storing water by artificial means. 
 It follows that he cannot maintain an action for the value of 
 
 1 Lower Kings etc. Co. vs. Kings 286; Los Angeles vs. Baldwin, 53 
 
 R. etc. Co., 60 Cal. 408. Cal. 469; Parks Canal & M. Co. vs. 
 
 SOrtmanvs. Dixon, 13 Cal. 33; Hoyt, 57 Cal. 42; Lower Kings etc. 
 
 Kidd vs. Laird, 15 Cal. 161; Mc- Co. vs. Kings R. etc. Co., 60 Cal. 
 
 Donald vs. Askew. 29 Cal. 200; 40S. 
 
 Nevada etc. Co. vs. Kidd, 37 Cal. 3 57 Cal. 46.
 
 §247,24:8] NATURE AND EXTENT OF RIGHTS. 3<J9 
 
 the water — as for personal property sold and delivered— 
 against one who, without his consent, has diverted the stream 
 above the mouth of his ditch." 
 
 Also in the case of Los Angeles vs. Baldwin,' where it ap- 
 peared that the plaintiff had acquired the right to appropriate 
 the entire water of the Los Angeles river, the Court held 
 that the city did not own the corpus of the water while flow- 
 ing in the river. - 
 
 § 248. Point of Diversion Mii.v be (.hiin|;;eil.- Where an 
 appropriation has been once legally efifected and the quantity 
 of water the approi)riator is 'entitled to divert has been 
 determined he may take out the same at any point in the 
 stream. He may change the point of diversion at pleasure, 
 provided the rights of others are not injuriously affected by 
 the change.-^ The authorities upon the subject hold, as will 
 be seen upon examination, that in all cases the effect of the 
 change upon the rights of others is the controlliiig considera- 
 tion; and that in the absence of injurious consequences to 
 others any change the prior appropriator desires to make 
 in this respect is legal and proper.'' 
 
 In a very recent case in California, ofRamelli vs. Irish,'' 
 the Court held : That a person entitled to the use of the waters 
 of a stream by appropriation may change the place of diver- 
 sion or the place where it is used, or the use to which it was 
 first applied, if others are not injured by such change.'' Upon 
 the other hand, one entitled to divert a (juantity of water from 
 
 1 53 Cal. 469. Ct). vs. Kidd; 37 Cal. 311 ; Junkaiis 
 
 - See also Kidd vs. Laird, 15 Cal. vs. Hergcn, 67 Cal. 270; 7 Pac. Ri-j). 
 
 161; Butte T. M. Co. vs. Morgan, 684; Sieber vs. l-rink, 7 Colo. 148; 
 
 19 Cal. 616; McDonald vs. Askew, 2 Tac. Rep. 901; Hobart vs. Wicks. 
 
 29 Cal. 206; N. C. & S. C. Co. vs. 15 Nev. 418; Davis vs. Gale, 32 Cal. 
 
 Kidd, 37 Cal. 311. 26; Ware vs. Walker, 70 Cal. 591; 
 
 3 Kidd vs. Laird, 15 Cal. J63; 12 I'ac. Rep. 475; Iniller vs. Swau 
 
 Greer vs. Ileiser, 14 Colo. 306; 26 River M. Co., 12 Colo. 12: 19 I'ac. 
 
 Pac. Rep. 770; Butte T. M. Co. vs. Rep. 836. 
 
 Morgan, 19 Cal. 616; vStrickler vs. •* Ibid. 
 
 Colorado vSpgs., 16 Colo. 61. 26 fu/j Cal. 214; 31 I'm. Ki|>. .|i. 
 
 Pac. Rep. 313; McDonald vs. " vSce also Gallnj^lii r vs Monte- 
 
 Askew, 29 Cal. 206; N. C. & S. C. cito, etc., Co., 35 Pac. Kcj). 770.
 
 400 NATURE AND EXTP:NT OF RIGHTS. [§248, 249 
 
 a stream can not change the point of diversion if by such 
 change the rights of other appropriators are injuriously af- 
 fected.^ 
 
 § 241). Right to Xutura! Flow of Water at Head of Ap- 
 propriator's Ditch. — Although, as we have seen in a previous 
 section,- the appropriator has no propert}' in the water of the 
 stream flowing in its natural channel above the head of his 
 canal— the point of diversion — yet b}' virtue of his prior ap- 
 propriation he acquires a most important legal and equitable 
 right over or with respect to such water. The right of the 
 prior appropriator to have the water continue to flow in its 
 usual manner through its natural channel or bed down to the 
 head of his ditch — -the point of diversion where his own actual 
 property rights in and to the same commences — to the extent 
 of his appropriation, without diversion or interruption by 
 others claiming subsequent to him, is an incorporeal heredita- 
 ment appurtenant to the ditch and co-extensive with the ap- 
 propriator's right to the ditch itself.'^ He has the right to in- 
 sist that the water continue to flow as it did when he first 
 made the appropriation. A mere temporary or trivial irregu- 
 larity in the flow of the water in the stream, such as does not 
 cause actual injury to the prior appropriator, will not be ac- 
 tionable; but if a sensible or positive injur}^ is caused, such 
 as would interfere with the water-right of the appropriator, 
 an action will lie, not only to recover damages, but also to 
 enjoin the future commission of the wrong. The first ap- 
 propriator of the waters of a stream passing through the 
 public lands has the right to insist that the water shall be 
 
 1 Butte T. M. Co. vs. Morgan, 9 Askew, 29 Cal. 200; Phoenix W. 
 
 Cal. 609; Nevada W. Co. vs. Pow- Co. vs. Fletcher, 23 Cal. 481; Na- 
 
 ell, 34 Cal. 109; Columbia Mfg. Co. toma Water Co. vs. McCoy, 23 
 
 vs. Holter; i Mont. 296; Simpson Cal. 490: Kick! vs. Laird, 15 Cal. 
 
 vs. Williams, 18 Nev. 432; Wool- 161; Barnes vs. Sabron, 10 Nev. 
 
 man vs. Garringer, i Mont. 535. 217; Pomeroy on Riparian Rights, 
 
 3 Ante Section 247. Section 60; Mokelomne Hill Co. 
 
 3 Lower Kings R. W. D. Co. vs. vs. Woodbury, 10 "Cal. 187; Pilot 
 
 Kings River, etc., Co., 60 Cal. Rock Creek Co. vs. Chapman, 11 
 
 408; Parks Canal & M. Co. vs. Cal. 162; Bear River & Auburn W. 
 
 Hoyt, 57 Cal. 44; Reynolds vs. & M. Co. vs. New York M. Co., 8 
 
 Hosmer, 51 Cal. 205; McDonald vs. Cal. 327.
 
 § 249, 250] NATURE AND EXTENT OF RIGHTS. 40 1 
 
 subject to his use and enjoyment to the extent of his orii^inal 
 appropriation.^ 
 
 In the case of Natoma Water & M. Co. vs. McCoy- it was 
 held that: The owners of a ditch by which the waters of a 
 stream had been first appropriated are entitled to recover 
 damages for injury or loss sustained as a result of the erec- 
 tion of dams or other obstructions on the stream above the 
 head of the ditch by which the regularity of the flow of its 
 waters is so disturbed as to cause actual injury or loss to the 
 proprietors of the ditch. '^ 
 
 § 250. Pollution. — The prior appropriator has the right to 
 insist as against the acts of those subsequent to him that the 
 water flow down to the head of his ditch undeteriorated in 
 quality as well as undiminished in quantity, as it was when 
 he first made the appropriation, if the deterioration injures 
 the water for the purpose for which the first person made the 
 appropriation. This rule is applied to a case in which saw 
 dust from a mill is thrown into a stream;'* also, to corrupting 
 the water by mining operations, by mixing the water with mud, 
 sediment or injurious mineral substances;'' also, to throwing 
 dead animals in the water;'* also, to operating a tan yard in 
 such close proximity to the stream that the drainage runs into 
 it;" and, in general, to casting sewage and waste material in 
 it, if it thereby cause material injury to the rights of the prior 
 appropriators. Any use of the stream which defiles* or cor- 
 rupts it to such a degree as to essentially impair its pnrit}' 
 
 i Phoenix W. Co. vs. Fletcher, 23 priator. Phoeni.\ Water Co. vs. 
 
 Cal. 482; Natoma Water Co. vs. Fletcher, 23 Cal. 4S1. 
 
 McCoy, 23 Cal. 491 ; Hill vs. vSinith, ^ Phoenix Water Co. vs. Fletcher, 
 
 27 Cal. 482. 23 Cal. 482; Lewis vs. Stein, 16 /Ma. 
 
 223 Cal. 491. 218. 
 
 3 One who enters upon a stream s Bear River & Auburn W. & M. 
 
 of water and erects hydraulic Co. vs. New York M. Co.,8Cnl. 
 
 works above the prior appropria- 327; Hill vs. Kin^, 8 Cal. 336; 
 
 tor must so construct them as not Mayor vs. Chadwick, 11 A. & l\. 
 
 to impair the regularity of the 571. 
 
 flow of the water, if its irregular ''Tate vs. Parish, 7 Monroe-, 325. 
 
 flow would injure the first ai)i)ro- 7 Howell vs. .McCoy, 3 Rawle, 
 
 256.
 
 402 NATURE AND EXTENT OF RIGHTS. [§ 250 
 
 and usefulness for any of the purposes to which the water is 
 applied by the prior appropriator is an invasion of the private 
 rights, for which he is entitled to a relned3^l 
 
 But the natural right of an appropriator to have the stream 
 descend to him in its pure state must yield in a reasonable 
 degree to the rights of those who have located above upon 
 the stream subsequent to him. This is especially true where 
 the object of his appropriation is that of irrigation, as it is of 
 public importance that the proprietor of useful manufactories 
 should be held responsible only for substantial injury caused 
 by their works, and not for slight inconveniences or occasional 
 annoyances, or even some degree of interference with irriga- 
 tion or agricultural pursuits. ^ 
 
 As the population grows more dense along the streams in 
 the arid west it is becoming more and more an impossibility 
 to keep the water of the streams in their naturally pure 
 condition. And when an injunction is sought to stop large 
 and expensive works, which cause the waters of a stream to 
 be polluted, it must clearly appear that the legal remedy of 
 the prior appropriator is entirel}' inadequate, and that he will 
 suffer irreparable injury from the continuance of the pollu- 
 tion to such an extent that his vested rights are in jeopardy. 
 
 1 Hill vs. Smith, 27 Cal. 476; 32 583; McGenness vs. Adriatic Mills, 
 
 Cal. 166; Crane vs. Randall, 2 116 Mass. 177; Richmond Mfg. 
 
 Utah, 248. In general, as to pollu- Co. vs. Atlantic De Laine Co., 10 
 
 tion of streams, see Mason vs. R. I. 106; Lewis vs. Stein, 16 Ala. 
 
 Hill, 5 B. & Ad. i; 3 B. & Ad. 304; 214; O'Riley vs. McChesney, 3 
 
 2 Nev. & Man. 747; Embrey vs. Lans. 278; 49 N. Y. 672; Gladfelter 
 
 Owen, 6 Exch. 153; Wood vs. vs. Walker, 40 Ind. i; Holsman vs. 
 
 Waud, 3 Exch. 748; Bealey vs. Boiling Springs Bleaching Co., 14 
 
 Shaw, 6 East. 208; Aldred's Case, N. J. Eq. 335; Potter vs. Fremont, 
 
 9 Co. 59; Tenant vs. Goldwin, 2 47 Cal. 165; Sanderson vs. Penn. 
 
 Ld. Raym. 1089; Salk. 21, 360; 6 Coal Co., 86 Penn. St. 401; 102 
 
 Mod. 311; Holt, 500; Stonehewer Penn. St. 370; Mitchell vs. Barry, 
 
 vs. Farrar, 6 O. B. 730; Lingvvood 26 Q. B. (Can.) 416. 
 
 vs. Stonemarket Co., L. R. i. Eq. 2 people vs. Rogers, 12 Colo. 278; 
 
 77; Buccleuch vs. Cowan, 2 App. 20 Pac. Rep. 702; Haskell vs. New 
 
 Case, 344; Merrifield vs. Lombard, Bedford, loS Mass. 208, 214; Hayes 
 
 13 Allen, 16; Woodward vs. vs. Waldron, 44 N. H. 580; Smith 
 
 Worcester, 121 Mass. 245; Dwight vs. Barnham, i Ex. D. 419; Pren- 
 
 Printing Co. vs. Boston, 122 Mass. tice vs. Geiger, 74 N. Y. 341;
 
 §251] NATURE AND EXTENT OF RIGHTS. 403 
 
 §251. Same.— Authorities on Subject.— In all controver- 
 sies caused by the pollution of the water by subsequent loca- 
 tors the question to be determined is, has the prior appropri- 
 ator's use and enjoyment of the water for the purpose for 
 which he appropriated and applies it been materially impaired 
 by the acts of the subsequent locators. What deterioration 
 in quality will injuriously affect the use of the waters of the 
 appropriator is a question of fact depending upon the circum- 
 stances of each particular case. It may be that in some cases 
 a slight deterioration of the quality of the water will impair 
 its use for the purpose to which the appropriator applies it; 
 and again it maj^ be that such use would not be impaired by 
 a very considerable pollution of the quality of the water. The 
 question must be determined in view of the 7isc to whicJi the 
 water is applied, the nature and extent of the deterioration, 
 and all the other circumstances connected with each particu- 
 lar case.^ It follows therefore that a greater amount of deter- 
 ioration will be permitted where the appropriator applies the 
 water merely to irrigation than where the water is used for 
 household and domestic purposes. For instance, the sewage 
 of cities is considered exceedingly beneficial to vegetation, 
 but it pollutes the water to such an extent as to render it 
 absolutely worthless and positively injurious for household and 
 domestic purposes. Some mineral solutions are beneficial to 
 vegetation, while on the other hand others contain in solution 
 chemical poisons which are destructive to both animal and 
 vegetable life. So, if from the facts in any case, the appro- 
 priator is benefitted instead of injured by the pollution of the 
 waters it stands to reason that no action will lie. In an early 
 California case - bearing upon this subject it was held that: 
 " As to the deterioration in quality, the injury should be con- 
 sidered as an injury without consequent damage." Hut this 
 
 9 Hun. 350; O'Riley vs. McCbes- Cator vs. Lewishain Ho.inl of 
 
 ney, 49 N. Y. 672; 3 Laiis. 278; Works, 5 B. & vS. 143. 
 
 Thomas vs. Brackney, 17 Barb. 1 Pliocnix Water Co. vs. I'lelcher, 
 
 654; Palmer vs. Mulligan, 3 23 Cal. 4.S3; Ilill vs. Smith, 27 Cal. 
 
 Caines, 307; Honsee vs. Hammond, 476; Courlwrighl vs. B. R. iSi W. 
 
 39 Barb. 89; Ridge vs. Midland Ry. M. Co., 30 Cal. 5S5. 
 
 Co., 53 J. P. 55; Merrifield vs. 2near River W. Co. vs. N. V. M. 
 
 Worcester, no Mass. 221, 222; Co., 8 Cal. 327.
 
 404 NATURE AND EXTENT OF RIGHTS. [^ 251, 252 
 
 rule has been modified to a great extent in later cases both in 
 that and other States and Territories of the arid west, from 
 the fact that if there is a material injury suffered b}' the appro- 
 priator it would be entirely antagonistic to the maxim adopted 
 by the various vStates: '' Qui prior est in tempore, potior est in 
 purer 
 
 In the case of Hill vs. Smith ^ the Court evidenth- aban- 
 doned the decision in the case cited above, and seems to have 
 held almost to the other extreme: "As between ditch owners 
 and miners using the waters of a stream in mineral regions for 
 mining purposes the law does not tolerate miy injjiry by one 
 to the prior rights of the other." But the Court also said at 
 the conclusion of the opinion: " So that in all controversies 
 like the present the question to be determined after all is the 
 same as that presented h\ a like controversy between riparian 
 proprietors, to-wit: Has the plaintiff's use and enjoyment of 
 the water ybr the purposes for ichich he claivis its use been im- 
 paired by the acts of the defendant ? This is purely a ques- 
 tion of fact for the jury, and all the law applicable to it is 
 found, as stated by the learned counsel for appellants, in the 
 case of Phoenix Water Co. vs. Fletcher (23 Cal. 483), em- 
 braced in the three following maxims: Qui prior est in tem- 
 pore potior est in jure ; Ubi J2is ibi remediuin ; Sic utere iuo tit 
 aliemun non laedas ; and beyond these principles they do not 
 require to be instructed. What diminution in quantity or 
 what deterioration in quality will injuriously affect the use 
 of the water by the plaintiff ma}^ be safeh^ left to the deter- 
 mination of the jury, guided only by the foregoing maxims. 
 It ma}' be that a slight diminution or deterioration will impair 
 his use of the water, and it may be that such use would not 
 be impaired by a very considerable reduction in quantity or 
 quality. The question must be determined in view of the use 
 to which the water is applied and the other circumstances 
 developed b}' the testimon}^" 
 
 § 252. Same. — Continued. — The case of Crane vs. Winsor 
 et al.^ was a case in which the water used by the prior appro- 
 priators was both for domestic and irrigating purposes, and 
 
 1 27 Cal. 476. 2 Reported in 2 Utah, 248.
 
 §252, 253j XATURE and extent of uigiits. 40.') 
 
 the defendants— subsequent appropriators — erected upon the 
 banks of the stream above the settlement of plaintiffs an ore 
 crusher, and the water which passed through the crusher 
 held in solution certain chemical poisons, so that when it 
 reached the settlement of plaintiffs it was so impure and 
 poisonous as to be destructive to both animal and vegetable 
 life. The Supreme Court of the Territory, in reversing 
 the order sustaining demurrer to the complaint in the District 
 Court, said: "The plaintiffs are the owners or tenants in 
 common of the water ditch and the water flowing therein by 
 virtue of their prior appropriation, and the corruption of the 
 water bj- the defendants is a private nuisance. The right 
 thus secured to the plaintiffs is to have the water flow to them 
 in its natural state. If the use the defendants put the water 
 to did not deteriorate it in quality then the plaintiffs would 
 have no right of action so long as the quality was not mate- 
 rially changed. Suppose the defendants had diverted all or 
 SLUy considerable portion of the water flowing in this creek, 
 there could be no doubt about the right of the plaintiffs to an 
 injunction restraining the defendants from such diversion, 
 upon a bill framed substantially like the one in this case. 
 Taking the complaint as true the injury to the plaintiffs is 
 more serious than would arise from the mere diversion of the 
 water, from its being rendered dangerous to human life. 
 The rights acquired by the plaintiffs should l)e protected by 
 the Court." 
 
 II. Doctrine of AbjindoiuiuMit. 
 
 § 253. Doctrine of Abandonment in (Jeneral. Express 
 Abandonment. — The prior or exclusive right to the use of the 
 water of a stream or lake may be lost by abandonment. The 
 water abandoned becomes publici juris and the subsetjuent 
 appropriators of the water of a stream are entitled to it accord- 
 ing to their respective priorities.^ There are several methods 
 
 IDavis vs. Gale, 32 Cal. 26, 3H9; 21 I'ac. Rip. 12. Tin- \\..nl 
 
 Docile vs. Manlen, 7 Or. 456; Piatt "abandon" is lield in this conmc- 
 
 Water Co. vs. Northern Colo. Ir. tion, to (icscrl or forsake. Tlicrc 
 
 Co., 12 Colo. 525; 21 Tac. Rep. 711. can be no abamlonincnt withont 
 
 McCaulley vs. ^McKca;^, 8 Monl. some action of tlu- will am! ■<•! i-
 
 406 
 
 NATURE AND EXTENT OF RIGHTS. 
 
 [§253 
 
 by which an abandonment may be construed, and they will be 
 taken up in their respective order. In the first place the aban- 
 donment may be express, accomplished by the intentional 
 word or acts of the appropriator. The very fact that where 
 water was appropriated for a particular purpose, and that pur- 
 pose has been fully accomplished, and when accomplished the 
 appropriators dispersed and allowed a long time to elapse 
 without using the ditch or water-rights in any way and then 
 sold them for a nominal sum, has been received in evidence as 
 tending to show abandonment.^ Again, while the construction 
 of works for the diversion of water to be taken under an appro- 
 priation remains uncompleted the enterprise ma}^ be given up 
 before any water has been actually diverted and applied to 
 some useful purpose, which ipso facto may also be taken as an 
 express abandonment of the ditch and the water-rights, but 
 of course dependent to a certain extent on the words and 
 actions of those giving up the enterprise. 
 
 tent to abandon. Such intent may 
 be inferred from the declaration 
 and acts of the party charged with 
 an abandonment, because it is 
 only by the declarations and acts 
 of persons that we infer their 
 intention. Dodge vs. Marden, 7 
 Oreg. 457. 
 
 1 Davis vs. Gale, 32 Cal. 27. 
 
 In the recent case of Stalling vs. 
 Ferrin, 7 Utah, 477; 27 Pac. Rep. 
 686, the defendant claimed an 
 easement in a ditch crossing the 
 land of another, but declared his 
 intention of not using the ditch, 
 whereupon the owner of the land 
 filled the ditch and sowed it over 
 with grass, with knowledge of de- 
 fendant, who made no objection. 
 It was held by the Court that as 
 against the plaintiff, who pur- 
 chased the land several years after 
 the ditch was closed, and without 
 notice of any claim thereto, defen- 
 dant must be held to have aban- 
 doned his right to the ditch. 
 
 See also late case decided by the 
 Supreme Court of California, of 
 Kirman vs. Hunnewnll, 93 Cal. 
 519; 29 Pac. Rep. 124, where the 
 Court held that: After a ditch by 
 which the water of a creek was 
 appropriated for mining purposes 
 has fallen into disuse and has 
 been abandoned the water-right 
 is destroyed by the abandonment; 
 and where, after such abandon- 
 ment, the water of the creek has 
 continuously flowed over land be- 
 longing to a riparian owner, and 
 has been used by him for irriga- 
 tion and for domestic and general 
 farming purposes for many years, 
 no person claiming under the 
 original appropriators can revive 
 the old ditch and water-right so as 
 to divert the water beyond the 
 water-shed of the creek to the 
 injury of the riparian owner. 
 
 See also Lowden vs. Frey, 67 
 Cal. 474; 8 Pac. Rep. 31.
 
 § 253] NATURE AND EXTENT OF RIGHTS. 407 
 
 Another instance of express abandonment is that of a 
 mere verbal sale and transfer by the prior appropriator of his 
 water-right. This in itself also operates as an abandonment. 
 In the case of Smith vs. O'Hara ^ the Court held that one who 
 enters into the possession of a ditch used for appropriating 
 water under a verbal sale made to him of the same does not 
 succeed to the rights of the seller so as to claim the benefit of 
 the seller's prior appropriation of the water flowing in the 
 same, but must date his appropriation from the time he enters 
 into possession. Upon this subject the Court said: "The 
 plaintiff adduced no written evidence of the transfer of the 
 right to the ditch, through which were conveyed the waters 
 claimed by him, from those who had constructed it, or been 
 in possession of it, but he proved by oral testimony that it 
 was sold to him b}' Woods, the person, or one of the persons, 
 who had constructed and used it. This evidence was properly 
 stricken out by the Court." ^ The attempt to convey a water 
 right by an imperfect conveyance, while it may not operate as 
 an absolute transfer, clearly operates as an abandonment by 
 the grantor of his rights acquired by his appropriation, and 
 the right of the purchaser relates only to the date of his tak- 
 ing possession, as though it was an original appropriation made 
 by him.^ But it was held in the case of Quigsley vs. Birds- 
 eye,^ that a grant of a ditch and a water-right to an alien is 
 not an abandonment by the owner, but the alien may hold the 
 same until forfeited by office found, and in the absence of any 
 such forfeiture may convey title. 
 
 A grant of the right to divert the waters of a stream, made 
 by a pre-emptor of public lands bordering thereon, is rendered 
 worthless by the latter's abandonment of his claim before i)ro- 
 
 1 43 Cal. 373. that a prior ri^ht to the waters of 
 
 2llill vs. Newman, 5 Cal. 445; a stream can be acquired only hy 
 
 Lower K. D. Co. vs. Lower K., showing tliat the chiimant has 
 
 etc., Co., 60 Cal. 408; Dodge vs. acquired the rights of all i)rior 
 
 Harden, 7 Or. 456; Clark vs. Wil- appropriators by other than verbal 
 
 lett, 35 Cal. 534. sale, otherwise his appropriation 
 
 3Barkley vs. Tielekc, 2 Mont. 59. does not antedate his own posses- 
 
 vSalina Creek Ir. Co. vs. Salina sion. 
 
 Stock Co., 6 Utah, 456; 27 I'ac. •» 11 .Mont. 439; 2S I'ac. Rep. 471. 
 Rep. 57H; where the Ccnirt held:
 
 408 
 
 NATURE AND EXTENT OF RIGHTS. [§ 253, 254 
 
 curing a receiver's title to the land.^ And a part}' who has 
 abandoned his prior appropriation cannot by sale revive his 
 prior rights in favor of his grantees, even though the sale is 
 bona fide on their part.^ 
 
 § 254. Express Abandonment Continueil.— Iniplietl Ahund- 
 onment. — An abandonment may also be made of apart of the 
 waters all of the time. As, for instance, where an appropria- 
 tor is entitled to a certain amount of water for a certain pur- 
 pose and can claim all of the water appropriated for that pur- 
 pose, but onl}^ actually diverts and applies a part of the water 
 and permits the residue that he might use to flow down the 
 stream. If his actions and words tend to prove that he had 
 no intent to recapture the water at a point lower down it will 
 be construed by the Court to be an abandonment of the amount 
 thus allowed to escape. In this case another person ma}' ap- 
 propriate a part or the whole of this amount, and when appro- 
 priated by him his right thereto wall be as perfect and entitled 
 to the same protection as the rights of the first appropriatorto 
 the portion actually diverted and applied to some beneficial 
 use by him.'' 
 
 1 Conkling vs. Pac. Imp. Co., 87 
 Cal. 296; 25 Pac. Rep. 399. 
 
 See also Ortman vs. Dixon, 13 
 Cal. 34, where it was held that the 
 instrument conveying a water 
 right must be in writing, but need 
 not be under seal if accompanied 
 by possession. 
 
 Smith vs. O'Hara, 43 Cal. 371; 
 McKinney vs. Smith, 21 Cal. 381; 
 N. C. & S. C. Co. vs. Kidd, 37 Cal. 
 313; Thorp vs. Freed, i Mont. 685; 
 I/obdell vs. Simpson, 2 Nev. 277; 
 Barnes vs. Sabron, 10 Nev. 217. 
 
 2 Davis vs. Gale, 32 Cal. 26; Kir- 
 man vs. Honnewill, 93 Cal. 519; 29 
 Pac. Rep. 124. 
 
 In the recent case decided by 
 the Supreme Court of Colorado, 
 Nichols vs. Mcintosh, 34 Pac. Rep. 
 278, the Court held that a person 
 
 may abandon an irrigating ditch 
 without abandoning his water 
 rights. Such rights ma}- be aban- 
 doned by a non-user, but so long 
 as the appropriator continues the 
 use of such rights without any un- 
 reasonable cessation an abandon- 
 ment will not be presumed against 
 him. 
 
 3 Smith vs. O'Hara, 43 Cal. 371; 
 where it was held that if the first 
 appropriator of water takes only 
 a part of the water flowing in the 
 stream another may afterwards 
 appropriate the remainder; and, 
 if the first appropriates the water 
 only during certain days of the 
 week, another may afterwards 
 take during the remaining days 
 of the week. 
 
 McKinne}- vs. Smith, 21 Cal. 381.
 
 §254 NATURE AND EXTENT OF lacillTS, 401) 
 
 There may be an abandonment of a/^/r/or <7//of the water 
 part of the time, by the prior appropriator. As where the 
 first appropriated the water for the purpose of irrigation and 
 onh^ uses part or all of the water durinj;- the cropping season, 
 and permits the water to run down its natural channel during 
 the rest of the year. Another may appropriate the water for 
 the period that it is permitted to run down the natural channel 
 and acquire a good title to it by the appropriation and use of 
 the same for the period of time that the first was not ac- 
 customed to use it.^ So, also, there may be an abandonment 
 of the water for certain days of the week or certain hours of 
 the day; but during the season, days or hours, that he does 
 use it his priority and right remain good as against all sul>se- 
 quent appropriators; and the mere fact that his use is not con- 
 tinuous does not of itself work an abandonment. ^ 
 
 Where water is discharged into the stream for the purpose 
 of drainage or as a mere matter of convenience, and without in- 
 tention to reserve or recapture it, it works an abandonment;-* 
 and the water thus discharged becomes a part of the natural 
 channel and is subject to the same rights as the water natur- 
 ally flowing therein.^ As a general rule the authorities 
 hold that in all cases where water formerly appropriated, or 
 which has been under the control of any person, is permitted 
 to flow down the natural channel of a stream below the point 
 
 1 See subject Periodical appro- 64Cal.46i; Sclmltz vs. Swclmk-v, 
 priatioiis, Chapter VII. Sections 19 Nev. 357. 
 
 177-178; Hesperia Land Co. vs. •! Maeris vs. Bicknell, 7 Cal. i'li: 
 
 Rogers, 83 Cal. 10. McKinney vs. Smith, 21 Cal. 374; 
 
 2 For continuity of use see Thomas vs. Guiraud, 6 Colo. 530. 
 Hesperia Land & W. Co. vs. Rog- But it is not an abandonment to 
 ers, 83 Cal. 11, where the Court mingle the waters from the dilch 
 held that the claimant of an irri- with a natural stream, sothattliey 
 gating ditch constructed by him may be taken out at a point lower 
 over the land of another may down the stream. IhUte Canal 
 prove a prescriptive right thereto, Co. vs. Vaughn, 11 Cal. 143 
 
 by showing the use of water there- But one who has ilischarged 
 
 in for irrigation when needed water from a foreign source into a 
 
 during the cropping season, for natural stream cmnot lake out 
 
 the period of five jears. more than he put in. Wilcox vs. 
 
 •^ Butte Canal Co. vs. Vaughn, Hansch, 64 Cal. 461. 
 II Cal. 143; Wilcox vs. Ilausch,
 
 410 
 
 NATURE AND EXTENT OF RIGHTS. 
 
 [§254 
 
 of diversion of the appropriator, without any intent of recap- 
 turing it, it works an immediate and express abandonment of 
 all the water permitted to escape; and subsequent parties can 
 not be deprived of their rights in and to this water appro- 
 priated by them by an attempt on the part of the first appropri- 
 ator to shut off their supply by enlarging the amount diverted 
 by him to that which he could have originally claimed had 
 not the rights of subsequent appropriators vested. When 
 the water of a stream leaves the possession of a party, with- 
 out any intent to recapture it, all his right to and interest in 
 it is gone, and the water becomes a part of the stream and is 
 subject to appropriation by another. ^ 
 
 J Eddy vs. Simpson, 3 Cal. 249; 
 Schultz vs. Sweeney, 19 Nev, 359; 
 Woolman vs. Garringer, i Mout. 
 59- 
 
 The prior appropriator can not 
 claim water after it has been 
 abandoned by him and appro- 
 priated by another. Barkley vs. 
 Tieleke, 2 Mont. 59. 
 
 See also Hewitt vs. Story, 51 
 Fed. Rep. loi, where the facts 
 were that certain persons appro- 
 priated by means of the B. ditch 
 the water remaining in the stream 
 after two prior appropriations. 
 The supply proving insufficient 
 after several years they each pur- 
 chased a certain number of shares 
 in the T. ditch and the water ap- 
 propriated by it, and diverted the 
 same into the B. ditch. After a 
 time other shareholders in the T. 
 ditch also, by permission, diverted 
 their water through the B. ditch 
 and finally the T. ditch was 
 abandoned and all the water taken 
 through the B. ditch; thereafter 
 for many years the entire amount 
 of water taken through the B. 
 ditch was distributed in propor- 
 tion to the ownership of shares in 
 
 the T. ditch appropriation, with- 
 out regard to the original appro- 
 priation by means of the B. ditch. 
 It was held by the Circuit Court 
 of the United States that this con- 
 stituted an abandonment by the 
 original appropriators and their 
 successors of a claim to the water 
 originally taken by the B. ditch. 
 
 Green vs. Heiser, 16 Colo. 306; 
 26 Pac. Rep. 770; Jatunn vs. 
 O'Brien, 89 Cal. 57; 26 Pac. Rep. 
 635; Stalling vs. Ferrin, 7 Utah 
 477; 27 Pac. Rep. 686, 
 
 In a recent case decided by the 
 Supreme Court of Oregon, of Cole 
 vs. Logan, 33 Pac. Rep. 568, it 
 appeared from the facts that in 
 1872 the defendant surveyed a 
 ditch from his homestead to a 
 point on the creek above his other 
 ditch, and was compelled on ac- 
 count of quick sand to abandon 
 it. In 1873 he surveyed another 
 ditch to a point 1% miles further 
 up the creek, which he conipleted 
 in 1883. From 1S72 to 1893 it also 
 appeared that another ditch com- 
 pany diverted 1,000 inches of 
 water from a certain river into 
 such creek. The court held that
 
 §255] NATURE AND KXTENT OF UHHITS. Ill 
 
 §tJ55. Implieil AbandoniiuMit CouliniUMl.— Where water 
 has been once appropriated and has been under the control 
 of a person and by him caused to be discharged into a natural 
 stream the absence of any intent to recapture the water will 
 be presumed unless the prior appropriator caused the water 
 to be discharged into the stream for the express purpose of 
 using the natural channel as a part of his ditch or canal.' If 
 the appropriation has never been completed and the right in 
 and to the water has never vested, or the works for diverting 
 the water have not been constructed with due and reasonable 
 diligence to their completion; or in other words, if there has 
 been unreasonable delay in their construction, and in the 
 meantime other parties have appropriated the water intended 
 to be appropriated by the first, the Courts hold that the prior 
 party has abandoned his rights in and to the water as against 
 those who in the course of the delay have legally appropriated 
 the same. Under these circumstances the Courts hold that 
 the rights of the first do not relate back to the time when the 
 first step was taken to secure his right, as it would have done 
 had he diligently prosecuted his works for diversion until 
 completed, but only to the time when the diversion of the 
 water actually begun. ^ 
 
 the defendant had not abandoned Atchison vs. Peterson, i Moiil. 
 
 his original right of appropriation, 561. 
 
 in the absence of the right of such The first appropriator of water 
 
 irrigating company to take more for the purpose of working mines 
 
 than the surplus water diverted will not be held to have aban- 
 
 from such river into the creek. doned his rights by failure to use 
 
 IWoolman vs. Garringer, i it during certain years in some of 
 
 Mont. 535; Davis vs. Gale, 32 Cal. which there was not enough to 
 
 26; Butte Canal Co. vs. Vaughn, 11 work the mine, where he «lid use 
 
 Cal. 143. it hi a subsequent year. McCauley 
 
 i^Kimball vs. Gearhart, 12 Cal. vs. McKeig, S Mont. 3S9; 21 I'ac. 
 
 27; Elliot vs. Whitmore (Utah), 24 Rep. 22. 
 
 Pac. Rep. 673; Ophir vS. M. Co. vs. It is not abandonment of a 
 
 Carpenter, 4 Nev. 534; Irwin vs. former claim for nu nppropriutor 
 
 Strait, 18 Nev. 436; Keency vs. who, while prosecuting his work 
 
 Carillo, 2 N. M. 480; Meggerle vs. willi diligence under Uic first 
 
 Ashe, 33 Cal. 74; see Ante Chapter notice, posts a second notice. Os- 
 
 VI., Sections 168, 184; but see good vs. I-;i Dora.lo Water Co.. 56 
 
 Cal. 571, 57')-
 
 412 NATURE AND EXTENT OF RIGHTS. [§ 255 
 
 After the works for diverting the water are entirelj^ com- 
 pleted, and the prior appropriator fails after a reasonable time 
 to appl}' all or a part of the water to some beneficial use or 
 purpose, it works an abandonment of the amount not used, 
 and others can come in and claim all the water that is not 
 actually needed or used by the first appropriator. This is 
 undoubtedly one of the most frequent causes of abandonment 
 in these later days, but the very foundation of the arid region 
 theory of appropriation of water is based first upon priority, 
 and second upon an application of all of the waters to some 
 beneficial use or purpose. There must be no water wasted. 
 In these days when water is becoming more and more scarce 
 the Courts in all the States and Territories formed out of the 
 arid region are each year more stringently enforcing the rule 
 that a person cannot appropriate or lay claim to more water 
 than he reasonably needs for the purpose to which he applies 
 it. And where a person has appropriated a certain amount of 
 water and fails within a reasonable time to apply all of it to 
 some beneficial use or purpose, the Courts hold that he has 
 worked an abandonment as to the water not used or wasted, 
 when it is claimed by others. ^ 
 
 1 An irrigating canal company from sucli stream had lapsed and 
 
 filed the statement and plat re- reverted to the vState. Colorado 
 
 quired by law by which it de- Land & Water Co. vs. Rocky 
 
 clared its intention to construct Ford Canal, Reservoir, Land, 
 
 a canal 70 miles long for irrigat- Loan & Trust Co. (Colo. App.), 34 
 
 ing purposes, taking the water Pac. Rep. 580. 
 
 from a certain river at a specified See also Hindman vs. Rizor, 2 1 
 point. In the first six months Oreg. 112; 27 Pac. Rep. 13: Kir- 
 thereafter it spent a small sum in man vs. Hunnewill, 93 Cal. 519; 29 
 construction, at the end of which Pac. Rep. 124; Osgood vs. El Do- 
 time it made an executory con- rado Water Co., 56 Cal. 571; Davis 
 tract of sale, but, the purchaser vs. Gale, 32 Cal. 26. 
 failing to perform, the sale was In the case of the Last Chance 
 never consummated. During the M. Co. vs. Bunker Hill S. M. & C. 
 two years following the date of Co. (Idaho), 49 Fed. Rep. 430, the 
 such contract such company made Court held that an appropriator 
 several attempts to sell, but did of water to be used at a specified 
 nothing toward construction. It place for operating machinery or 
 was held that the incipient right other works, who after use has 
 of such company to take water returned it to the channel at a
 
 §2561 
 
 NATURE AND EXTENT OE RI(;in> 
 
 11:} 
 
 § 25(>. Abamlouiuent by Advorse Possi'ssicm. — Ki^his ot a 
 prior appropriator may be lost by his acquiescence in an ad- 
 verse use thereof by another, continued uninterruptedly for 
 the statutory period. This, however, will not apply to any 
 portion of said water which the prior appropriator did within 
 said period resume and afterwards retain possession of.* When 
 such other person has had the continued, open, notorious, un- 
 interrupted and adverse enjoyment of the water or some por- 
 tion of it for all or a part of the time for a sufficient period, 
 the law will presume a grant of the right so held and enjoyed 
 by him.^ 
 
 point above the place from which 
 a subsequent appropriator diverts 
 the water appropriated, cannot, 
 after such subsequent appropria- 
 tion, chan.tje the place of use so as 
 to return the water to the stream 
 below the subsequent appropria- 
 tor and deprive him of its use. 
 
 See Ante Sections 165, 166; 
 Union Water Co. vs. Carey, 25 
 Cal. 504; Smith vs. Logan, iSNev. 
 149. 
 
 The case of Atchison vs. Peter- 
 son, I Mont. 561, holds that a 
 mere suspension of work in con- 
 struction of a ditch, for a reason- 
 able time would not necessarily 
 be an abandonment of the appro- 
 priator's inchoate right. 
 
 1 Union Water Co. vs. Crary, 25 
 Cal. 504; 85 Am. Dec. 145; Davis 
 vs. Gale, 32 Cal. 26; Smith vs. 
 Logan, 18 Nev. 149; Woolman vs. 
 Garringer, i Mont. 535; Crandall 
 vs. Woods, 8 Cal. 136; Los Angeles 
 vs. Baldwin, 53 Cal. 469; Grisby 
 vs. Clear Lake Co., 40 Cal. 396; 
 Cave vs. Crafts, 53 Cal. 135; Al- 
 hambra vs. Richardson, 72 Cal. 
 
 598- 
 
 2! Ibid. Ahaheim Water Co. vs. 
 vSemi-Tropic Water Co., 64 Cal. 
 
 185; Alta Land ^ Water Co. vs. 
 Hancock, 85 Cal. 219; Last Chance 
 W. D. Co. vs. Ileilbron, 86 Cal. i; 
 Lake Side Ditch Co. vs. Crane, So 
 Cal. 181; Davis vs. Gale, 32 Cal. 26; 
 Partridge vs. McKinney, 10 Cal. 
 181; Crandall vs. Woods, S Cal. 
 136; American Co. vs. Bradford, 27 
 Cal. 360; Union Water Co. vs. 
 Crary, 25 Cal. 504; Cambell v«. 
 West, 44 Cal. 646; Kvans vs. Ross 
 (Cal.), 8 Pac. Rep. 88; Oneto vs. 
 Re-stano, 78 Cal. 374; lleintzcn vs. 
 Binniger, 78 Cal. 5; Smith vs. Lo- 
 gan, 18 Nev. 149; Dick vs. Bird, 14 
 Nev. 161; Dodge vs. Madden, 7 
 Ore. 456; Huston vs. Bybce, 17 
 Oregon, 140; Cox vs. Clough, 70 
 Cal. 345; Thomas vs. England, 71 
 Cal. 458; Coonradt vs. IJill, 71, 
 Cal. 587; 21 Pac. Rep. 1099. 
 
 I'retlerick vs. Dickey, 9I Cal. 
 358; 27 Pac. Rep. 742, wliere the 
 Court held that in an artion by 
 mill-owners to enjoin iiUcrfereiice 
 l)y the defendant with a water- 
 ditch across his land, lea<ling to 
 their mill, in which the right of 
 way for the water-ditch is claimed 
 to have been perfected by adverse 
 possession, a notice of location of 
 tlu- watir-righl oiitiiuiiUy iliiiniiMl
 
 414 NATURE AND EXTENT OF RIGHTS. [§256,257 
 
 As to wliat constitutes an abandonment by adverse posses- 
 sion or prescription the Supreme Court of California, in the 
 very recent case of Alta lyand, etc., Co. vs. Hancock,^ said: 
 "It will thus be seen that the whole question is, whether 
 these facts gave to plaintiff's grantor a prescriptive right to 
 the diversion and use of that water. The right became fixed 
 only after five years adverse enjoyment. And to have been 
 adverse it must have been asserted under claim of title, with 
 the knowledge and acquiescence of that person having the 
 prior right, and must have been uninterrupted. In order to 
 constitute a right by prescription 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 b}^ all the 
 elements required to make out an adverse possession; the pos- 
 session must be by actual occupation, open, notorious, 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." 
 
 In most of the western States and Territories the time re- 
 quired to acquire a right to the use of water by prescription 
 or adverse possession is a period corresponding to the time 
 fixed by the statute of limitation as a bar to an action for the 
 recovery of land. ^ 
 
 § 257. Same.— When Abandonment is Presumed. — A fail- 
 ure to use water is competent evidence of an abandonment of 
 the right thereto; and if continued for an unreasonable period 
 it creates a presumption of intention to abandon. But the pre- 
 
 bv the grantor of the plaintiffs Balston vs. Benstead, i Camp, 
 
 -who constructed the ditch is ad- 463; Ricard vs. Williams, 7 
 
 missible as evidence tending to Wheaton, 59; Williams vs. Nelson, 
 
 show an adverse claim, whether 23 Pick. 141; Colvin vs. Burnett, 
 
 the location was or was not made 17 Wend. 564; Hammond vs. Zeh- 
 
 in accordance with the provisions mer, 23 Barb. 473. 
 
 of the code. 1 85 Cal. 226. 
 
 Bealey vs. .Shaw, 6 East. 20S; 2 See Post Sections 293-297.
 
 §257-259] XATURE and extent of KIlfllTS. 415 
 
 sumption is not conclusive and may be overcome by other 
 satisfactor}' proofs.^ 
 
 Thus, in an action where the defendant has pleaded adverse 
 possession in himself it is error to instruct a jury "that if 
 they believe that the plaintiff was the first to appropriate and 
 use the waters in dispute, and that his appropriation and use 
 thereof was prior to that of defendant and those under whom 
 he claimed adversely to the plaintiff, and that his possession 
 was continuous, exclusive and notorious, and that he has not 
 parted with his right thereto, or forfeited the same, they will 
 find for the plaintiff" for the reason that the instruction would 
 authorize the jurj^ to find for the plaintiff, without consider- 
 ing the defense of adverse possession.^ 
 
 § 258. Same. — Continued. — Upon the question of presump- 
 tion of abandonment, the Supreme Court of Colorado, in the 
 case of Sieber vs. Frink,"^ said: " A failure to use for a time 
 is competent evidence on the question of abandonment, and, 
 if such non-usage continue for an unreasonable period it may 
 fairly create a presumption of intention to abandon; but this 
 presumption is not conclusive and may be overcome by other 
 satisfactory proofs."^ 
 
 Also, in the case of Ison vs. Nelson, decided by the Circuit 
 Court for the District of Oregon,"' it was held, that the filling 
 up of a ditch by a land slide, and its non-use for over nine 
 years, destroys all claim of the owner thereto, under a statute 
 of that State providing that when a ditch is abandoned, and 
 thereafter the claimant shall cease to exercise acts of owner- 
 ship over the same for one year, he shall be deemed to have 
 lost all claim thereto . 
 
 § 259. Effect of an Abandonment.— As to the effect of aii 
 abandonment the authorities seem to be uniform upon the 
 proposition that the prior appropriator thereby loses all of 
 
 iSee vSieber vs. Frink, 7 Colo. Kestano, 89 C.il. by, 2h Viic. Ri-p. 
 
 148; 2 Pac. Rep. 901; Dorr vs. 788. 
 
 Hammond, 7 Colo. 79; i Pac. Rep. :'7 Colo. 148; 2 Pac. Rep. 901. 
 
 5q, 1 .Sec also Cole vs. LoKaii (Ore), 
 
 2 Ledu vs. Jim Yet Wa, 67 Cal- 33 Pac. Rep. 568. 
 346; 7 Pac. Rep. 731; Oiieto vs. 0471.^.(1. Rep. 199.
 
 416 NATURE AND EXTENT OF RIGHTS. [§ 259 
 
 his exclusive rights to divert or use all of the water which he 
 had acquired or might have acquired bj^ virtue of his appro- 
 priation, and which he had permitted to be discharged into a 
 natural stream without intent to recapture it.^ 
 
 In Woolman vs. Ganinger^ the Supreme Court of Montana 
 said: " The plaintiffs could acquire no other than a mere 
 privilege or right to the use of the waste, or at most but a 
 secondary and subordinate right to that of the first appropria- 
 tor, and only such as was liable to be determined by their ac- 
 tion at any time, unless the water had been turned back into 
 the original channel after it had been used and answered the 
 purpose of the first appropriator without any intention of re- 
 capture, and thereby became p2iblici juris and subject to ap- 
 propriation b}' anyone." 
 
 One cannot, after he has abandoned all or a certain portion 
 of the water by any method described, reassert his original 
 right to the same amount of water as against a subsequent 
 claimant who in the meantime has taken the proper and legal 
 steps to effect an appropriation thereb}-.-^ Again, if several 
 persons, having their respective priorities, appropriate water 
 from the same stream by means of ditches, and another person 
 turns water into the stream from his ditch starting out of an- 
 other stream, without the intention of recapturing it, the 
 water thus turned in becomes publici juris, and belongs to the 
 appropriators who appropriated the water of the first stream 
 in the order of their respective priorities — the first taking the 
 surplus water to the extent of his original appropriation, the 
 next to the extent of his, and so on until all the water is ap- 
 propriated. Of course it will be readilj^ seen that as the 
 first appropriator can originally claim the waters naturally 
 flowing in the stream to the full extent of his appropriation, 
 even if it takes all of the water — but being limited to the 
 amount of his original appropriation — any surplus water dis- 
 charged into the stream b);- any means accrues more to the 
 benefit of the subsequent appropriators.^ Also if a prior ap- 
 
 1 Davis vs. Gale, 32 Cal. 26; Bark- 'A See authorities cited on subject 
 
 ley vs. Tieleke, 2 Mont. 59. in the previous section, 
 
 a I Mont. 545. -ilbid. Eddy vs. Simpson, 3 
 
 Cal. 26.
 
 §259,260] .VATURE AND EXTENT OF RIGHTS. 417 
 
 propriator should abandon any or all of his rights in and to 
 the waters of a stream the water thus permitted to escape ac- 
 crues to the benefit of those who have already legally made 
 subsequent appropriations of it in preference to any 
 other person attempting to claim the water abandoned by the 
 prior appropriator. One cannot abandon water in favor of 
 another, but if the proper steps are taken he may sell it or a 
 part of it to another.^ And one who has abandoned his prior 
 right to the use of water cannot by afterwards making a sale 
 of the same revive his prior right in favor of his grantees, even 
 if the sale is made in good faith, if the rignus of subsequent 
 appropriators have in the meantime i ntervened.^ If, on the 
 other hand, there has been no subsequent appropriation of the 
 water thus abandoned by some other party the prior appro- 
 priator may regain his former rights; but this can only 
 be done by commencing and completi ng anew the requisite 
 steps to effect his appropriation as were required of him in 
 the first instance. He is in exactly the same situation as 
 though he had hitherto made no attempt to appropriate the 
 waters at all.^ 
 
 III. Doctrine of Estopix^l. 
 
 § 260. Estoppel in Puis as Appli ed to ^Vattr Kfulits.— 
 
 In an early California case it was held that: If a person 
 claimed and had a prior right to the waters of a stream by vir- 
 tue of an appropriation or otherwi se, and stood by and saw 
 others appropriate it at a great expenditure of money and 
 labor, under the mistaken idea that they were obtaining the 
 first appropriation, and the first party did not inform ihcm of 
 
 1 Davis vs. Gale, 32 Cal. 26; Ro- vs. O'Hara, 43 Cal. 371; liarkley vs. 
 
 minger vs. Squires, 9 Colo. 327; Tieleke, 2 Mont. 59; I'ahiaii vs. 
 
 Barkley vs. Tieleke, 2 Mont. 59; Collins, 3 Mont. 215; South Tonl 
 
 McKinney vs. Smith, 21 Cal. 374; Canal Co. vs. Gordon, 6 Wall. 561; 
 
 Smith vs. O'Hara, 43 Cal. 373; Rt-ynolds vs. Ho.'nicr, 51 Cal. 205; 
 
 Hill vs. Newman, 5 Cal. 445; I.obdcll vs. Hall, 3 Ncv. 507. 
 
 Lower Kings D. Co. vs. Lower K. ^ Davis vs. Gale, 32 Cal. 27. 
 
 B. & F. C. Co., 60 Cal. 408; Dodge •' Tucker vs. Jones, 8 Mont. 225. 
 
 vs. Marden, 7 Oreg. 456. 19 Pac. Rep. 57; Davis vs. Gale, 32 
 
 As to the sale of water see Brad- Cal. 26; Harklcy vs. Tieleke, 2 
 
 ley vs. Ilarkness, 26Cal. 69; vSmitli Mont. 59.
 
 418 NATURE AND EXTENT OF RIGHTS. [§ 260 
 
 the mistake, then in that case he and all grantees claiming 
 water under him are afterwards estopped from setting up their 
 prior rights.^ It has also been held that where one has a 
 right by prior appropriation to the use of the waters of a 
 stream, and stands by and allows another to purchase it from 
 a third party wrongfully claiming to have the right to said 
 water, without asserting or making known his claim, he is 
 estopped from afterwards asserting that claim. ^ But from the 
 weight of later authority we do not think the above doctrine 
 is the present law upon the subject of estoppel as applied to 
 water-rights. The mere facts that a ditch was constructed at 
 a great cost and was maintained and used with the knowledge 
 of the prior appropriator of the waters of the stream, and with- 
 out any objection or opposition on his part, are not in them- 
 selves sufficient to operate as an estoppel against his after- 
 wards asserting his claim to the water. There must be actual 
 misrepresentation or some degree of turpitude in the conduct 
 of the prior appropriator before a court of equity will estop 
 him from the assertion of his title. ^ 
 
 The very definition of the term estoppel by matters in pais 
 does not admit of so broad a construction as was given by the 
 Court in the case of Parke vs. Kilham, supra. It is defined 
 by Bouvier as "such as arise from the acts and declarations of 
 a person by which he designedly induces another to alter his 
 position injuriously to himself." * 
 
 Bispham, in his work on Equity upon this subject, says: 
 "Equitable estoppel, or estoppel by conduct, has iis founda- 
 tion in fraud considered in its most general sense; because a 
 man cannot be prevented by his conduct from asserting a 
 previous right, unless the assertion would be tantamount to a 
 fraud upon a person who had subsequently acquired the 
 right." 5 
 
 It is also said by Mr. Biglow, in his work on Estoppel,^ that 
 
 1 Parke vs. Kilham, 8 Cal 78. I. Co., 64 Cal. 57; Lux vs. Haggin,. 
 
 2Fabian vs. Collins, 3 Mont. 215. 69 Cal. 255. 
 
 SBiddle Boj^gs vs. Merced Mg. 4 Kinney vs. Farnsworth, 17 
 
 Co., 14 Cal. 279; Anaheim W. Co. Conn. 355; Frost vs. Saratoga Nat 
 
 vs. Semi-Tropic Water Co., 64 Cal. I. Co., 5 Denio. 154. 
 
 185; Stockman vs. Riverside L. & 5 Bispham on Equity, Sec. 282. 
 
 *5 Section 487.
 
 §260] 
 
 NATURE AND EXTENT OF RIOnTS. 
 
 419 
 
 the following elements must be present in order to constitute 
 an estoppel by conduct. " i. There must have been a repre- 
 sentation or concealment of material facts. 2. The repre- 
 sentation must have been mide with knowledge of the facts. 
 3. The party to whom it was made must have been ignorant 
 of the truth of the matter. 4. It must have been made with 
 the intention that the other party would act upon it. 5. The 
 other party must have baen induced to act upon it " ' 
 
 ISee also on general subject 
 Richards vs. Sears, 6 Ad. & El. 
 4*^9; McCracken vs. San Francisco, 
 
 16 Cal. 626; Green vs. Pretlyman, 
 
 17 Cal 402; Kelly vs. Taylor, 23 
 Cal. 15; Maye vs. Yappeii, 23 Cal. 
 308; Carpenter vs. Thurston, 24 
 Cal. 281; Davis vs. Davis, 26 Cal. 
 40; Bowman vs. Cudworth, 31 Cal. 
 153; Brown vs. Evans, 18 Nev. 
 141; I Pac. Rep. 673; Love vs. Sha- 
 ritzer, 31 Cal. 493; Maine Boys T. 
 Co. vs. Boston Tun. Co., 37 Cal. 
 50; Martin vs. Zellerbach, 3S Cal. 
 315; Davenport vs. Turpin, 43 Cal. 
 597; Smith vs. Penny, 44 Cal. 165; 
 Bissell vs. Henshaw, i Cow. 553; 
 Wythe vs. Smith, 4 Saw. 25; Flege 
 vs. Garvey, 47 Cal. 377. 
 
 In the case of Dallon vs. Ren- 
 taria, 15 Pac Rep. 37, the Supreme 
 Court of Arizona held that one 
 who stands passively by and al- 
 lows another to open out fields 
 and irrigate them with water for 
 16 years under the belief that he 
 has .1 vested right to and equal 
 use thereof is estopped from sub- 
 sequently denying this right. And 
 in the opinion of this case Mr. 
 Chief Justice Wright said: "If 
 the greater part of ])lainliff's lamls 
 had been cultivated for tiie list 16 
 years it was done witli or without 
 defendants' consent. If without 
 their consent, have they not been 
 
 guilty of laches, unreasonable de- 
 lay and inexcusable neglect in 
 waiting 16 years without taking 
 any steps to restrain the wrongful 
 acts of plaintiffs? If the de- 
 fendants were fairly put upon 
 their guard; if they had actual 
 knowledge that plaintiffs were di- 
 verting waters that belonged to 
 defendants by virtue of prior ap- 
 propriation; if they stood by for 
 16 years or more and saw the 
 plaintiffs build their houses, open 
 out their lands and put them in 
 cultivation, expend their money 
 in the improvement of these 
 homts. pay their proportion of the 
 expense, and bear their propor- 
 tion in the labor in building and 
 in repairing the acqitias, and 
 otherwise do and ])erform such 
 acts as indicated that plaintiffs be- 
 lieved that plaintiffs had equal 
 rights with defendants to the wa- 
 ters of tlie Santa Cruz River— do 
 not all these circumstances serve 
 to imply that defendants waived 
 or aljandoned any exclusive prior 
 right to said waters? At least, 
 was there not such unreasonable 
 delay as that tliey are now pre- 
 cluded from conipl. lining? Will 
 parlies be permitted to stand !)y 
 for 16 years or more and sec new 
 fiel is put in culliv ilion, irrig.ited, 
 forsodlli, with w.ilcrlo whi h thry
 
 420 NATURE AND EXTENT OF RIGHTS. [§ 261 
 
 § 261. Same. — Authorities on Subject. — The case of Bid- 
 die Boggs vs. Merced Mining Co.^ is a case almost universally 
 cited as authority on this subject of estoppel in pais, although 
 the case itself did not involve the question as to the rights in 
 water, except as a part of the realty itself. And, as the sub- 
 ject is exceedingly important, we will quote at length from 
 the opinion touching upon this subject, which was rendered 
 by Mr. Justice Field in his very able manner. The Court 
 said: "We pass to the second ground of defence, that of 
 estoppel. The only matters alleged in the answer b}^ way of 
 estoppel are the private survey of Freemont in 1849, ^^^ ^^'^^ 
 presentation of the same to the Board of I^and Commissioners 
 as embracing and identifying the tract he claimed; and sub- 
 sequent public and repeated disclaimers b}' him at the time 
 when defendant took possession of the premises. * * * 
 Upon these declarations, the answer avers, the defendant 
 acted and was induced to make valuable and permanent im- 
 provements upon the premises in controversy and adjacent 
 property at an expenditure of eight hundred thousand dollars; 
 and insists that the plaintiff is thereb}'- estopped from asserting 
 any title under Freemont. * * * 
 
 " It is undoubtedly true that a party will, in many instances, 
 be concluded by his declarations or conduct, which have in- 
 fluenced the conduct of another to his injury. The party is 
 said in such cases to be estopped from denying the truth of 
 
 have an exclusive prior right, see defendant's consent if they stood 
 
 large sums expended •in erecting passivel}' by." 
 
 new homes, and witness new and Plaintiffs are estopped to deny 
 
 important interests intervene and defendant's water rights in a ditch 
 
 then be heard to complain? A by declaration of their grantor 
 
 fortiori defendants will not be while in possession, that the 
 
 heard to complain if these things grantor of the defendant had the 
 
 were done with their consent. In- right to a certain part of the 
 
 deed, our opinion is, in this case, water, relying on which declara- 
 
 that acquiescence, non-action on tion defendants bought and en- 
 
 the part of the defendants for so tered into possession prior to 
 
 long a time gave consent. They plaintiff's purchase. Campbersvs. 
 
 could not consent 'till rights vested Shivers (Arizona), 25 Pac. Rep. 
 
 and then dissent.' So th.'.t it is 540. 
 
 really immaterial whether the ir- 1 14 Cal. 279. 
 rigation was done with orr,without
 
 §261,262] NATURE AND EXTENT OF RKHITS. 421 
 
 his admissions. But to the application of this principle with 
 respect to the title of property it must appear: First, that the 
 party making the admission by his declarations or conduct was 
 apprised of the true state of his own title; snoud, that he 
 made the admission with the express intention to deceive, or 
 with such careless and culpable negligence as to amount to 
 culpable fraud; third, that the other party was not only desti- 
 tute of all knowledge of the true state of the title, but of the 
 means of acquiring such knowledge; and fourth, that he 
 relied directly upon such admission, and will be injured by 
 allowing its truth to be disproved. 
 
 "These qualifications in the application of the doctrine 
 will be found fully sustained by the authorities. 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 it to another. ' In all this class of cases * says Story, 
 speaking of equitable estoppels, 'the doctrine proceeds upon 
 the ground of constructive fraud or of gross negligence, which 
 in eflfect implies fraud. And therefore where the circumstances 
 of the case repel any such inference, although there may be 
 some degree of negligence, yet Courts of equity will not grant 
 relief. It has accordingly been laid down by a very learned 
 judge that the cases on this subject go to this result only, and 
 there must be positive fraud or concealment or negligence so 
 gross as to amount to constructive fraud.' " ' 
 
 §262. Same. — Authorities Coiitimieil. — The rule laid down 
 in the case of Boggs vs. The Merced M. Co., supra, has also 
 been followed by the same Court as applying directly to cases 
 where rights to water were in controversy. In the case of 
 Stockman vs. Riverside Land and Irrigating Co.," the Court 
 said: " The learned judge who tried the case and rendered 
 the decrea was of th3 opinion that the facts found in respect 
 to the ditch constituted an estoppel in pais; but in this he was 
 in error. The plaintiffs are many in numl)er, and the fnid- 
 ings that the ditch was constructed, maintained, ;inil used 
 
 1 Citing ' Story's Iviuily, Section 391. ^ (..1 Ciil. 57.
 
 422 NATURE AND EXTENT OF RIGHTS. [§ 262 
 
 ' with the active assistance of divers ' of them, is obviously too 
 indefinite to apply to any particular one or more of the plain- 
 tiffs, and it does not purport to include them all. It must 
 therefore be laid out of consideration. The only facts there- 
 fore left on which the defendant must rely as constituting an 
 estoppel are: that the canal cost about fifteen thousand dol- 
 lars, and that it was constructed, maintained and used, in- 
 cluding a strip of land on each side of it, for the purpose of 
 conducting the water for irrigation, with the knowledge of 
 the plaintiffs and their grantors, and without any objection or 
 opposition thereto on their part. 
 
 "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 suflS- 
 cient 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 enjoy- 
 ment to another.' (Biddle Boggs vs. Merced Mining Co., 14 
 Cal. 368.) 
 
 " For the error committed in the particular last mentioned 
 the judgment and order miist be reversed." 
 
 Also in the case of Anaheim W. Co. vs. Semi-Tropic W. 
 Co.^ the same Court said: " Nor does it appear that there was 
 any fraud, misrepresentation or concealment of any kind 
 practiced upon the predecessors of the plaintiffs by the owners 
 of the ranch Santiago. In a recent case we had occasion to 
 quote with approval what was held here in the case of Biddle 
 Boggs vs. Merced Mining Co., 14 Cal. 368: '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 enjoyment to another.' " 
 
 Also in the case of Lux vs. Haggin ^ the same Court said: 
 " To constitute such an estoppel it must also be shown that 
 the person sought to be estopped has made an admission or 
 
 I64 Cal. 195. 269 Cal. 266.
 
 §262,263] NATURE AND EXTENT OF RIGHTS. 423 
 
 done an act with the intention of influencing the conduct of 
 another, or that he had reason to believe would influence 
 his conduct, inconsistent with the evidence he proposes to 
 give or the title he proposes to set up; that the other party 
 has acted upon or been influenced by such act or declaration; 
 that the party so influenced will be prejudiced by allowing 
 the truth of the admission to be disproved." * 
 
 Where the owner of an irrigation ditch constructed on pub- 
 lic lands induces subsequent settlers to take up lands that can 
 only be irrigated by the ditch, and to lab::)r upon and increase 
 its capacity with the understanding that they were to use the 
 water and the ditch as other settlers, when not used by prior 
 appropriators, he is estopped to deny their right to use it.^ 
 
 § 263. E>toi>pel by Deed.— Estoppel by deed is such as 
 arises from the provisions of a deed. It is a general rule that 
 a party is estopped to deny anything stated therein which has 
 operated upon the other party as the inducement to accept 
 and act under the deed.'^ In the case of Zimmles, administra- 
 tor, vs. San lyuis Water Co.,'* it was held: A recital in a deed 
 to the effect that the grantee is about to divert the waters of 
 a certain stream (which flowed through the grantor's land), 
 and to appropriate the same, followed by a grant of the right 
 of way to conduct water over the land of the grantor, does not 
 estop said grantor from denying the right of the grantee to 
 divert the waters of said stream. The recital in the deed was 
 held to be too general and not necessary to the conveyance, 
 
 1 One who acquires a right to a showing that he did not need or 
 
 use of a part of the water of a use that amount. Hrown vs. 
 
 ditch, not to exceed a certain defi- Evans, i8 Nev. i.}i 
 
 nite amount, upon condition of 2i^clii Ir. Co. vs. Moylc, 4 Ut.ih, 
 
 paying his pro rata share of the 327; 9 I'ac. Rep. S67; Canipln-Il vs. 
 
 needed repairs, has the option of Shivers, i Ari/.. 161; Curtis vs. I.c 
 
 using whatever amount he may Grange. H. W. Co. (Oregon) 25 I'ac. 
 
 desire within the fixed limit, and Rep. 378; Modifying 23 Pac. Rep. 
 
 he will not be held liable bejond 80.S. 
 
 the portion used; if, however, he =* i Washburn Real Property, 
 
 gives notice that he will require a 464. 
 
 certain amount, he will be bouml •» 57 Cal. 221. 
 by such notice, and estopped from
 
 .424 NATURE AND EXTENT OF RIGHTS. [^ 263, 264 
 
 and the Court, after citing the case of Kepp vs. Wiggett,^ 
 said: "That case is cited as an illustration of the strict ad- 
 herence of the Courts to the rule that an estoppel must be 
 certain to every intent. "^ However, upon this subject the 
 Courts held that all particular and definite recitals are con- 
 clusive evidence of the material facts stated in the deed. 
 
 IV. Conveyance of Water Rights and Sale of Water. 
 
 §264. The Conveyance of Water Rights.— The exclusive 
 right to divert and use the water of a natural stream acquired 
 by a prior appropriation of the same is the subject of property 
 and may be sold and conveyed, as well as the ditch, canal or 
 other structure by the means of which the diversion is ef- 
 fected. But both the right to the use of the water acquired by 
 the prior appropriation,* and the canal or other structure 
 through which the diversion is effected,^ must be conveyed 
 by a written instrument, as in the case of real property, al- 
 though they may be conveyed separately and do not neces- 
 sarily go together. A mere verbal sale is nugatory, and as 
 we have seen work an aban,donment.^ The grantee must con- 
 
 1 lo Com. Bench 35. A co-owner of a water right ac- 
 
 '^ See also as to general recitals quired by appropriation can con- 
 not estopping the parties from vey his own interest in and to the 
 disputing the statements made in same, but his rights extend no 
 them, Farrar vs. Cooper, 34 Maine further; he can not convey so as 
 394; Noble vs. Cope, 50 Pa. St. 17; to injuriously affect his co-tenants' 
 Muhlenburg vs. Druckenmiller, rights. Henderson vs. Nichols, 
 103 Pa. St. 631; Kepp vs. Wiggett, 67 Cal. 152; 7 Pac. Rep. 412. 
 10 C. B. 35. 5 Hill vs. Newman, 5 Cal. 445; 
 
 3 Calkins vs. Copley, 29 Minn. Lower King etc. Co. vs. Lower 
 
 471; Sutton vs. Casselleggi, 5 Mo. King B. & F. C. Co., 60 Cal. 408; 
 
 App. hi; School District vs. Dodge vs. Marden, 7 Ore. 456. The 
 
 Stone, 106 U. S. 183; Lucas vs. ditch is not a mere easement or 
 
 Beebe, 88 111. 427; Green vs. Ap- appurtenance, it is land. Reed 
 
 peal, 97 Pa St. 342. vs. Spicer, 27 Cal. 57; Clark vs. 
 
 ^Barkley vs. Tieleke, 2 Mont Willett, 25 Cal. 534; Hart vs. Plum, 
 
 59; Kidd vs. Laird, 15 Cal. 162; 14 Cal. 148; Merritt vs. Judd, 14 
 
 Smith vs. O'Hara, 43 Cal. 371; Cal. 59; Burnhara vs. Freeman, 11 
 
 McDonald vs. Bear River etc. Co., Colo. 601. 
 
 13 Cal. 220; Dalton vs. Bowker, 8 6 Smith vs. O'Hara, 43 Cal. 371; 
 
 Nev. 190; Union W. Co. vs. Crary, Lobdell vs. Hall, 3 Nev. 507; 
 
 25 Cal. 504. Barkley vs. Tieleke, 2 Mont. 597;
 
 §264] 
 
 NATURE AND EXTENT OK KI(J11T^ 
 
 425 
 
 nect himself in interest with those who first appr()j)ri:Uo(l the 
 waters of the stream and used the same for some l)L-ntticial 
 purpose in such a manner that it will be notice to the public 
 that he succeeds to the right named in the conveyance. This 
 can onl}^ be done by deed and the recording of the same, in 
 which case the right of the grantee will relate back to the in- 
 ception of the appropriator's title. ^ 
 
 However, it is held that a verbal sale of a right to divert 
 water from a natural stream, accompanied by possession, is 
 valid, but in that case the right of the vendee only relates 
 back to the date of his own actual possession, as if he had on 
 that date made the appropriation himself.- In this case the 
 prior appropriation of the vendor is virtually abandoned, and 
 the vendee takes his rights simply as a subsequent appropria- 
 tor in his regular order with other subsequent appropriators, 
 should there be any. The vendee can not by a verbal con- 
 tract or an unrecorded deed, even accompanied by possession, 
 tack his own use on to that of his grantor who acquired his 
 right by appropriation, and thus cut out the rights of appro- 
 prjators who were subsequent to his grantor, but prior to 
 himself.-^ From the above we find that the general rule of law 
 
 Hill vs. Newman, 5 Cal. 445; 
 Lower K. D. Co. vs. Lower K. B. 
 etc. Co., 60 Cal. 408; Dodfje vs. 
 Marden, 7 Ore. 456; Clark vs. 
 Willett, 35 Cal. 534; Ante Section 
 253-255- 
 
 1 Smith vs. O'Hara, 43 Cal. 371; 
 Chiatovich vs. Davis, 17 Nev. 133. 
 
 2 Ibid; Davis vs. Gale, 32 Cal. 
 26; Bradley vs. Harkness, 26 Cal 
 69; Smith vs. O'Hara, 43 Cal. 371; 
 Barkley vs. Tieleke, 2 Mont. 59; 
 Fabian vs. Collins, 3 Mont. 215. 
 
 3 See Ante Sections 253-255 and 
 authorities cited above. 
 
 Parties who have abandoned 
 their right to the use of water can 
 not, by afterwards making a sale 
 of the same, revive their prior 
 rights in favor of their grantees. 
 
 even if the sale should be made in 
 good faith. Davis vs. Gale, 32 
 Cal. 26; Dodge vs. Marden, 7 Ore. 
 456- 
 
 The abandonment of property 
 destroys the title and also its re- 
 lations. 
 
 Gluckauf vs. Reed, 22 Cal. 4(>>'i 
 Dyson v.s. Bradshaw, 23 Cal. 536; 
 Davis vs. Butler, 6 Cal. 510; 
 French vs. Baintree M. Co.. 23 
 Pick. 216; Mctioon va. Ankeiiy, 
 II 111. 558; ICniprey vs. Owen. »> 
 Ivxch. 369. 
 
 The owner of a bed of a stieiiin 
 and the waters therein may grant 
 any part of either ap irt from the 
 other. Doyle vs. San Diego K. & 
 T. Co.. 46 I'ed. Kep. 7(J9.
 
 426 NATURE AND EXTENT OF RIGHTS. [§ 264,205 
 
 in the arid region, that the right to use and divert waters ac- 
 quired by prior appropriation, and the right to canals, ditches 
 or other structures by the means of which the water is di- 
 verted, can be held, granted, abandoned, or lost by the same 
 means as a right of the same character issuing out of lands to 
 which a private title exists.^ 
 
 § 3(>5. Slime —Authorities Discussed.— In the case of 
 Strickler vs. City of Colorado Springs, decided in April, 
 1891,^ the Court in holding that a priority to the use of water 
 for irrigation is a property right, and that the same may be 
 sold and transferred separately from the land in connection 
 with which the right ripened, said: "An examination of the 
 case in 12 Colo, and 19 Pac. Rep. ,3 will show the conclusions 
 there announced to be well supported upon principle and 
 authority; and, it being thereby established that the place of 
 use may be changed, it logically follows that the right to the 
 use of the water for irri)j:ation is a right not so inseparably 
 connected with the land that it may not be separated there- 
 from. The right has been treated and held as a property 
 right in many cases. In Kidd vs. Laird, 15 Cal. 162, it is 
 said: 'The court has never departed from the doctrine that 
 running water, so long as it continues to run in its natural 
 course, is not and can not be made the subject of private 
 ownership. A right may be acquired to the use which will 
 be regarded and protected as property, but it has been dis- 
 
 llbid. Union Water Co. vs. bought by defendant, and were 
 
 Crary, 25 Cal. 504; Burnham vs. diverting water from the creek 
 
 Freeman, 11 Colo. 601; 19 Pac. flowing through it, at the time 
 
 Rep. 76t. But see Hindman vs. they bought, they are not inno- 
 
 Rizor, 21 Ore. 112; 27 Pac. Rep. cent purchasers without notice of 
 
 13, where the Court lield that the plaintiff's claims, was held to 
 
 where one holding a possessory be the rule in Low vs. Schaffer, 
 
 right to public land, appropriates recently decided by the Supreme 
 
 water for the purpose of irrigating Court of Oregon, 33 Pac. Rep. 678; 
 
 it, such water right becomes a see late case of Frank vs. Hicks 
 
 part of the improvements and (Wyo.) 35 Pac. Rep. 475, and Mc- 
 
 may be sold verbally and trans- Phail vs. Forney, 35 Pac. Rep. 773. 
 
 fered with the possessory right. 2 16 Colo. 61; 26 Pac. Rep. 313. 
 
 In a contest over water rights, 3 Fuller vs. Mining Co., 12 Colo, 
 
 where it appears that plaintiff's 12; 19 Pac. Rep. 313. 
 ditches were constructed on land
 
 §265] NATURE AND EXTENT OF RIGHTS. 127 
 
 tinctly declared in such cases that the ri^Mit carries with it no 
 specific property in the water itself.' Mr. C.ould in his work 
 on Water Rights, in section 234, says: 'The rii;ht to water- 
 acquired by priority is the subject of property, and may be 
 sold and conveyed.' 'The exclusive right to divert and use 
 the water of a stream as well as the ditch or other structure 
 through which the diversion is affected, may be transferred 
 and conveyed like other property, or rights analagous to 
 property,' Pom. Rip. Rights. § 58. 
 
 " The authorities seem to concur in the conclusion that the 
 priority to the use of water is a property right. To limit its 
 transfer, as contended by appellee, would in many instances 
 destroy much of its value. It may happen that the soil for 
 which the original appropriation was made has been washed 
 away and lost to the owner as the result of a freshet or other- 
 wise. To say, under such circumstances, that he could not 
 sell the water-right to be used upon other land would be to 
 deprive him of all the benefit from such right. We grant 
 that the water itself is the property of the public; its use, how- 
 ever, is the subject of appropriation, and in this case it is con- 
 ceded that^the owner has the paramount right to such use. 
 In our opinion this right may be transferred by sale so long 
 as the rights of others, as in this case, are not injuriously af- 
 fected thereby. If the priority to the use of water for agricul- 
 tural purposes is a right of property then the right to sell it is 
 as essential and sacred as the right to possess and use. Black- 
 stone says. ' The third absolute right inherent in every 
 Englishman is that of property, which consists in the free 
 use, enjoyment and disposal of all his acquisitions, without 
 any control or dimaiution save only by the laws of the land.' 
 I Bl. Comm. p. 138. What difference can it make to others 
 whether the owner of the priority in this case uses it ui)on his 
 own land or sells it to others to be used upon other lands? 
 There is no claim of waste occurring between the present 
 points of diversion and the place where the city is to take 
 the water. Where a material waste results from the change, 
 a new feature is introduced which need not be consi«lered 
 here." * * * 
 
 " There is no controversy in the present case in reference
 
 428 NATURE AND EXTENT OF RIGHTS. [§ 265, 266 
 
 to the mode and manner in which the right of the water may 
 be conveyed, the contention extending further back; the 
 claim being that the right cannot be conveyed at all, except 
 with the land. The claim is not well founded. As we have 
 seen, the right is the subject of property and may be trans- 
 ferred accordingly; the sole limitation being that the rights of 
 others shall not be injuriously affected by such transfer." 
 
 Water rights thus conveyed are distinct and substantive 
 subjects of grants, and, although in their nature appertaining 
 to land they may exist without any restriction as to their use 
 in connection with the land granted, or any other designated 
 parcel, and stand preciselj'^ as ifgranted by deeds containing no 
 conveyance of land whatever.^ 
 
 The transfer of a right to divert water does not pass a right 
 of action for damages for a previous illegal use of the water. - 
 If a ditch, canal or other structure for diverting the water, be 
 mortgaged before the same shall have been completed the 
 mortgage wall, if such appears to be the intent, include the 
 whole work when completed and all improvements afterwards 
 put thereon like a mortgage of real estate.-^ 
 
 § 266. Sale of Wjiter After Diversion. — The exclusive 
 right to divert and use the water of a natural stream acquired 
 by appropriation is the subject of property, and may be sold 
 and transferred by the original appropriator to other persons. 
 This right must be distinguished from the right of the appro- 
 priator to sell the water diverted from the natural stream by 
 him into his canal, ditch or reser^'oir, as the case may be. 
 Mr. Chief Justice Field, in an early California case, said:"* 
 ' ' Water, when collected in reservoirs or pipes and thus sep- 
 arated from the original source of supply, is personal property, 
 
 llbid. See authorities cited --^Uuiou W. Co. vs. Murphy's 
 
 above and also Fuller vs. Swan Flat Fluming Co., 22 Cal. 620; 
 
 River Co., 12 Colo. 12; 19 Pac. Ferguson vs. Miller, 6 Cal. 402; 
 
 Rep. 836; DeWitt vs. Harvey, 4 Souie vs. Davies, 7 Cal. 575; 
 
 Gray, 486; Kidd vs. Laird, 15 Cal. Sands vs. Pfeiffer, 10 Cal. 258; 
 
 162; Pratt vs. Lamson, 2 Allen Frank vs. Hicks (Wyo.), 35 Pac. 
 
 275; Schuylkill Nav. Co. vs. Moore, Rep, 475. 
 
 2 Whart. 477. ^Heinenian vs. Blake, 19 Cal. 
 
 2Kimball vs.Ciarheart, 12 Cal. 27. 529.
 
 §266, 2C7J . NATURE AND EXTENT Ob' KUJUTS. Jl^) 
 
 and is as much the subject of sale— an article of coniiuerce— 
 as ordinary goods and merchandise. Engaging in the busi- 
 ness of furnishing it to the inhabitants of a city for equivalent 
 considerations to be received is engaging in ' a species of 
 trade or commerce.' * * * Ice companies organized to 
 furnish the inhabitants of a city with ice, and gas companies 
 organized to furnish them with gas, and the company in ques- 
 tion organized to supply them with water, all stand upon the 
 same footing." 
 
 The later authorities upon the subject hold that not 
 only may a person or a company sell the water itself, but 
 also that should the owner of a canal or other works con- 
 structed to furnish water for irrigation r^^-fuse to supply a bona 
 fide customer who applies for a certain amount of water 
 needed by him and tenders the proper charges therefor, then 
 an action for mandamus will lie to compel the ditch owner to 
 deliver the water necessary.^ 
 
 As will be seen in a subsequent portion of this volume in 
 cases similar to the above, some of the States and Territories 
 regulate the price charged for water by canal companies, and 
 also prescribe penalties in places where the company has plenty 
 of water but refuses to deliver the same to would-be purchasers 
 who tender the legal price therefor. - 
 
 § 2()7. Water Iii£?ht When an Appurtenaiue lo Laiul. 
 
 An appurtenant is a thing belonging to another thing, but 
 which has not belonged to itimmemorially.-^ It becomes ne- 
 
 iMcCreary vs. Beaudry, 67 Cal. Farmer vs. Ukiah W. Co., 5O Cal. 
 
 120; 7 Pac. Rep. 264; \Vhee]er vs. "; New Ispwich W. L. Factory vs. 
 
 Northern Colo. Ir. Co., 10 Colo. Batchelder, 3 N. II. 190. 
 
 582; 17 Pac. Rep. 487; Combs vs. "An appurtenance is that wliich 
 
 Agricultural Ditch Co., 17 Colo. belongs to another tiling, but 
 
 146; 28 Pac. Rep. 966; vSouth Boul- which has not belonged to it ini- 
 
 der D. Co. vs. Marfell, 15 Colo. meniorially. Appurtenant denotes 
 
 302; 25 Pac. Rep. 504; see Po.st annexed or belonging to, t>ul in 
 
 Chapter XI., Section 335- ^''*^ *^ denotes an annexation 
 
 2 Post Part Two. which is of convenience merely 
 
 3 I Ventris, 407; Coke on I<ilt. aiid not of necessity, and which 
 121 I), and 121 a.; Moore, 682; may have had its ori^^in at any
 
 430 
 
 NATURE AND EXTENT OF RIGHT? 
 
 [§267 
 
 cessary at this point to know when a water right, ditch cr other 
 structure used for diverting and conducting the water becomes 
 an appurtenant to the land upon which the water was formerly 
 used and upon or through which the ditch ran. 
 
 It depends entirely upon the circumstances of the case as to 
 whether a water right or ditch is appurtenant either to a 
 tract of land, a mine or to any other portion of real property. 
 However, in general, we will say that a right which secures 
 to the owner of a tract of land water for irrigating or other 
 purposes necessary to the beneficial enjoyment of the land 
 becomes appurtenant to said land and passes by conveyance 
 thereof unless specially reserved in the deed. Tliis is upon 
 the principle that when a party grants a thing he by implica- 
 tion grants whatever is incident to it and necessary to its 
 beneficial enjoyment.^ 
 
 time, in both of wliicb respects it 
 is distinguished .from appendant. 
 Abb. Law Diet., title Appurte- 
 nance. 
 
 See also late case of Crooner vs. 
 Benton, 93 Cal. 365; 28 Pac. Rep. 
 958, where the Court held that 
 under Section 662 of the Civil 
 Code defining an appurtenance 
 and providing that a " thing is 
 deemed to be incidental or appur- 
 tenant to land when it is by right 
 used with the land, etc.," the 
 phrase "by right used with the 
 land" does not refer to the own- 
 er's title to the incident, but has 
 reference to the rightful iise by 
 which the incident has become an 
 adjunct to th 1 land, and remains 
 such so long as it can be used 
 therewith without lawful interfer- 
 ence by third persons. 
 
 1 Cave vs. Crafts, 53 Cal. 135; Mc- 
 Donald vs. Bear R. Co., 13 Cal. 220; 
 15 Cal. 145- 
 
 See Farmer vs. Ukiali W. Co , 56 
 Cal. II, where the Court he d that 
 L being the owner of a lot of la-d 
 
 and a dwelling house and other 
 buildings thereon, purchased of 
 the defendant a water right and 
 bought the water upon the 
 premises and used it for domestic 
 purposes and irrigating the lar.d; 
 and afterward conve3-ed the 
 premises with appurtenances 
 thereto loB, from whom, through 
 mesne conveyances, the plaintiff 
 deraigned title. After the deed to 
 B, Iv conveyed the water right to 
 T, who convej'ed to defendant. 
 Held, that under the deed to B 
 the water right passed as appurte- 
 nuit to the land; and held further, 
 that in view of the fact that B's 
 deed was recorded a finding that 
 the defendant took in good faith 
 and without notice of the plaint- 
 iff's cl-iim could not be sustained. 
 
 Standart vs. Round V. W. Co., 
 77 Cal. 399; Smith vs. Cooley, 65 
 Cal. 47; Bissell vs. Grant, 35 Conn. 
 288; Angell on Water Courses, 
 Section 153 a.; Philbrick vs. 
 Ewing, 97 Mass. 133. 
 
 In Tucker vs. Jones, 8 Mont.
 
 §237] NATUUE AND EXTENT OF lliailTS. \M 
 
 In the case of Cave vs. Crafts^ tlie facts wore that the 
 grantors of the plaintiffs had appropriated the water of a 
 stream and conducted tlie same to a cert.iin portion of their 
 ranch known as " Cottonwood Row," and there cmpl-iyed the 
 stream for the purposes of irrigation; that this appropriation 
 of the water and its use upon this particular tract of land was 
 continued by the plaintiffs after that portion of the ranch was 
 sold to them until another portion of the ranch was purchased 
 from plaintiffs' grantors by the defendants, wlio interfered 
 with plaintiffs' water rights as above stated. And the ques- 
 tion arose: Did not the exclusive use of the waters attach as 
 appurtenant to the lands at Cottonwood Row in such sense 
 that neither the Lugos nor their grantees of lands on the zaiija 
 above could divert the waters or deprive the owners of Cot- 
 tonwood Row of their accustomed use? And the Court hcdd 
 that there was no doubt but tliat while the title of the whole 
 ranch remained in the grantors the}'^ could divert the water 
 from the stream anywhere within the boundaries of the rancli. 
 The Court also held that the plaintiffs acquired their lands 
 with the use of the water by means of the zanja attached 
 and quasi appurtenant to them, and that no subseqnent act of 
 the grantors could divest them of their right. And upon this 
 principle the Court said: " When the owner of lands divides 
 his property into two parts, granting away one of them, he is 
 taken by implication to include in his grant all such ease- 
 ments in the remaining part as are necessary for the reason- 
 able enjoyment of the part which he grants i:i the form which 
 it assumes at the time he transfers it. ' If the grantor has al- 
 ready treated this portion as a separate property the mode in 
 which he enjoyed it or suffered it to be enjoyed affords a very 
 proper indication of what rights over his remaining land he 
 intends to pass accessory to it.' (Phear on Waters, 73.) 
 
 225; 19 Pac. Rep. 573, the Court .See also Doiintll vs. IImii|)li- 
 
 held that a coiivt-yancc of hind rcys, i Mont. 51S; Swoelhiiid v.s. 
 
 with its "appurtenances" is, hy Olscn, 1 1 Mont. 27; 27 I'ac. Kcp. 
 
 inipHcalion, a conveyance of the 345. 
 
 grantor's interest in a ditch and '53<-''i'- '35- 
 water right necessriry to the use 
 and enjoyment of the land.
 
 432 NATURE AND EXTENT OF RlGHTg. [§ 267 
 
 " There can be little doubt that throughout the entire pos- 
 session of the IvUg-os the^ waters were conducted through the 
 zanja to Cottonwood Row and for purposes of irrigation. The 
 use of these waters to the extent at least to which they had 
 been previously employed may have been, and it is fair to 
 presume was, the chief, perhaps only, inducement to the pur- 
 chase by plaintiifs and their grantors. To authorize judicially 
 the diversion and material reduction of the waters would be a 
 violation of the principle that they took with all the apparent 
 benefits and easements belonging to their purchase. And in 
 cases like the present the purchaser is entitled to the benefi| 
 of the easement without any express reservation or grant. 
 (Pypervs. Carter, i H. & N. Exch. and Exch. ch. 916.) The 
 word ' appurtenances ' is not necessary to the conveyance of 
 the easement. The general rule of law is that when a party 
 grants a thing he by implication grants whatever is incident 
 to it and necessary to his beneficial enjoyment. The incident 
 goes with the principal thing. The idea and definition of an 
 easement to real estate granted is a privilege off and beyond 
 the local boundaries of the lands or tenements conveyed." ' 
 
 1 Also see the case of McDonald rights appertaining thereto does 
 
 vs. The Bear River & A. \V. Co., not necessarily cunstitule said 
 
 13 Cal. 220, where the Court held ditch and water rights appurte- 
 
 that if the right to use water was nances of a mining claim. Upon 
 
 acquired by appropriation for the one who asserts that a ditch and 
 
 purpose of operating a mill on the water rights are appurtenant to a 
 
 stream such a right would pass by mining claim is cast the burden of 
 
 transfer of said mill property to a proving that such is the fact, 
 
 vendee as an appurtenance thereto. Smith vs. Logan, 18 Nev. 149. 
 
 But the case of Gannocchio vs. When a canal or aqueduct has 
 Amador C. & M. Co. (67 Cal. 493), been constructed in two separate 
 held that in order that the water parts by different contractors at 
 power of a mill may pass with a different times, the two sections 
 conveyance of the mill it must be- being fed in part from different 
 long to the mill and must be the sources, the Supreme Court of the 
 property of the owner thereof at United States has decided that the 
 the time of the transfer of the two sections constitute separate 
 iiiill- and distinct works, the water sup- 
 Also the case of Quirk vs. Falk ply of the one must be held not 
 (47 Cal. 453), where it was held an appurtenance of the other sec 
 that the purchase by a mining tion. South Fork Canal Co. vs 
 company of a water dilch and Gordan, 6 Wall. 561.
 
 §268] 
 
 riATURE AND EXTENT OF IIIGIITS. 
 
 433 
 
 §208. Sumo.— C'outiimoil.— The authorities hold that if a 
 mill be granted, reserved or devised, either with or without 
 the word " appurtenances," that it includes all the appurten- 
 ances in use or in their appropriate position and owned by the 
 grantor at the time of the conveyance; these also include the 
 water privileges appurtenant and essential to the mill as cor- 
 poreal hereditaments.^ 
 
 If a tract of land in the arid west is conveyed, to 
 which the grantor then had a water-right absolutely essential 
 and necessary to the enjoyment of the land conveyed and 
 used for irrigation purposes, unless especially reserved in the 
 granting instrument itself it conveys the water-right, even 
 if the word " appurtenances " is not in the instrument. - 
 
 This question has been repeatedly passed upon by the Courts 
 of the States in the arid west as well as those of the eastern 
 States. Indeed, it is a rule in accordance with natural justice 
 and reason that where one sells a house or a farm every right 
 will pass to the purchaser which is necessary to the complete 
 use and enjoyment of the property conveyed, unless expressly 
 
 Reynolds vs. Ilosnier, 51 Cal. 
 205; Weill vs. Baldwin, 64031.476; 
 Fresno Canal Co. vs. Dunbar, So 
 Cal. 530. 
 
 1 Blake vs. Clark, 6 Greenl. 436; 
 Maddox vs. Goddard, 15 Maine, 
 218; Baker vs. Bessey, 73 Maine, 
 472, 478; Seavey vs. Jones, 43 N. 
 H. 441; Miller vs. Miller, 15 Pick. 
 57; Pettee vs. Hawes, 13 Pick. 323; 
 Prescott vs. White, 21 Pick. 341; 
 Crittenden vs. Field, 8 Gray, 621; 
 Hapgood vs. Brown, 102 Mass. 453; 
 Richardson vs. Bigelow, 15 Gray, 
 146; Frink vs. Branch, 16 Conn. 
 260, 273; Smith vs. Modus Water 
 Power Co., 35 Conn. 392; Bru;:jcr 
 vs. Butler, 6 0rej^on. 459; Jackson 
 vs. Trullinger, 9 Oregon, 393; Bank 
 of North America vs. Miller, 7 
 Sawyer, 163, 170; 6 Fed. Rep. 545; 
 Gibson vs. Brockv^'ay, 8 N. II. 465; 
 Wickersham vs. Bills, 8 Ind. 387; 
 
 Iladden vs. Shutz, 15 111. 5S1 
 Lcggettvs. Kerton,2 Rich. (S. C.) 
 156; Page vs. Ksty, 54 Maine, 319; 
 Wall vs. Cloud, 3 Humph. 181; 
 Neadcrhousor vs. State, 38 Ind. 
 257; Simmons vs. Cloonan, 81 N. 
 Y. 557. Hill vs. National Bank, 97 
 U. S. 450; Swasey vs. Brooks, 30 
 Vt. 692; 34 Vt. 451; Spaulding vs. 
 Abbott, 55 N. H. 423; Tucker vs. 
 Jones, 8 Mont. 225. 
 
 2 See Cave vs. Crafts, 53 Cal. 135. 
 Ill Sweet land vs. Olscti, 11 
 Mont. 27; 27 Pac. Rep. 339, the 
 Court held that n conveyance of 
 land "with all apj)urten.'inccs " 
 conveys the grantors wiitt-r right 
 necessary to its use and enjoy- 
 ment. 
 
 Sec also Winware vs. U'orksr 
 (Orcgon). 27 Pac. Re]). 7; Coon- 
 radt vs. Hill, 79 Cal. 587; 21 Puc. 
 Rep. 1099.
 
 434 NATURE AND EXTENT OF RIGHTg. [§ 268, 269 
 
 reserved in the instrument of conveyance itself. Take for 
 example the case of a person in the arid region who owns a 
 farm or an orange grove which is wholly dependent for water 
 upon the right of the owner to divert a certain quantity from a 
 neighboring stream, and perhaps also upon a right-of-waj' over 
 the land of another person for his ditch to convey the water to 
 the place at which it is needed; then to carry our illustration 
 still further, let us suppose that the water of a stream was all ap- 
 propriated by the owner of the land and by others; then the 
 owner sells the land, and leaves out the word "appurtenances" 
 — perhaps designedly — from the deed conveying the land. The 
 Courts would hold under these circumstances that bj^ the con- 
 veyance of the tract of land ' ' every right will pass to the pur- 
 chaser which is necessary to complete the use and enjoyment 
 of the property conve5^ed unless expressly reserved in the in- 
 strument of conveyance." If the law was otherwise the 
 grantor could sell the naked land to one and the right to ap- 
 propriate the water which was an absolute necessit}^ to the en- 
 joyment of the land to another, and thereby deprive the 
 grantee of the land of anj' chance to get water with which to 
 irrigate the crops or trees growing upon the same. Of course 
 where the water-right has been sold before the date of the 
 conveyance of the land or is especially reserved in the deed the 
 case is different.^ 
 
 § 269. Same. — Autliorities Discussed. — Upon this subject 
 of appurtenances the Supreme Court of Montana, in the case 
 
 1 In the case of Bell vs. Sausalito he had no title, and afterwards 
 Land and Ferry Co., recently de- purchased the same with its ap- 
 cided by the Supreme Court of purtenances, and sold the lot on 
 California, 33 Pac. Rep. 449, facts which was the tank. In the con- 
 were that the plaintiff, with defen- veyance to plaintiff no mention 
 dant's consent, conducted water was made of the right to use the 
 to a tank on his lot from a spring spring, but there was evidence 
 on defendant's lot. Thereafter he that he understood that he might 
 took possession of another lot use it so long as the defendant 
 owned by the defendant and con- did not need it. The Court held 
 ducted water to the latter lot from that plaintiff had no water 
 the tank. Having used the water right in the spring appurtenant to 
 about eight years he surrendered the lot. See *also Coventon vs. 
 the possession of the lot to which Senfert (Or.), 32 Pac. Rep. 508.
 
 §269] NATURE AND EXTENT OF RIGHTS. 435 
 
 of Tucker vs. Jones, ^ said: "Easements or servitudes are 
 either personal or real, as, for instance, when a right of way 
 is granted in favor of a particular person or persons, the sale 
 of the estate will not carry with it the right which is confined 
 to the persons; but where, by distinction, a right of way at- 
 taches to and in favor of a certain house, farm, ranch or plan- 
 tation, or a certain right of drainage exists in favor of the 
 farm, or the use of a certain ditch and water for the irrigating 
 of a farm they will pass by deed, even without the use of the 
 word 'Appurtenances;' for the acquisition of the easement or 
 servitude was intended for the benefit of the estate, and by 
 destination is to be considered as incidental to the use of and 
 as a part and parcel of the realt}'. As was well said in the case 
 of Cave vs. Crafts,^ ' the word appurtenances is not necessary 
 to the conveyance of the easement. The general rule of law is 
 that where a party grants a thing he by implication grants 
 whacever is incident to it and necessary to its beneficial enjoy- 
 ment. The incident goes with the principle thing. The idea 
 and definition of an easement to real estate granted is a privilege 
 off and beyond the local boundaries of the lands conveyed.' " ^ 
 The fact that the owner of a lower tract of land acquired 
 title through purchase of possessory rights merely, and not by 
 deed, does not affect his title to the water rights, as they pass 
 as appurtenant to the land, a complete title to which as well as 
 possession thereunder and possessory rights were obtained 
 through the sale.^ 
 
 18 Mont. 225; 19 Pac. Rep. 573. 72 Cal. 477, where the action was 
 
 2 52 Cal. 135. brought to enjoin the defendant 
 
 3 Cave vs. Crafts, 53 Cal. 135; as Sheriff from selling the intt-rest 
 Donnell vs. Humphreys, i Mont. of a plaintiff in a ditch and the 
 530; Farmer vs. Ukiah W. Co., 56 water flowing therein under a 
 Cal. 15; Smith vs. Cooley, 65 Cal. judgment. The court held that 
 47; Phear vs. Waters, 73; Angell the interest of the plaintiff in the 
 on Water Courses, 153 A. See late ditch and the water wasappurten- 
 cases of Frank vs. Hicks, (Wyo.) ant to and a part of his hoine- 
 35 Pac. Rep. 475, and McPhail vs. stead, and was not liahlc to he 
 Forney et al. 35 Pac. Rep. 773. sohl under the judgment; und that 
 See Post Sec. 488. the judgment creditor having ob- 
 
 •iGeddis vs. Parish, i Washing- tained a personal judgment 
 ton St. 587; 21 Pac. Rep. 3i4- against the i)laintiff for his pro- 
 
 See the case of Fitzell vs. Leaky, portion of the construction ex-
 
 436 
 
 NATURE AXD EXTEXT OF RIGHTS. 
 
 [§270 
 
 § 270. Same.— Colorado Rule.— But the Colorado Courts 
 seem to hold differently from the courts of California. In the 
 case of Burnham vs. Freeman,^ the Supreme Court said: 
 " The law recognizes but two ways of acquiring by purchase 
 an ownership interest in such a ditch. One is by deed, or 
 prescription which presupposes a grant, and the other by con- 
 demnation. An interest in such a ditch is an interest in 
 realty. It can not pass by a mere verbal sale."^ 
 
 Also in the case of Bloom vs. West,'^ decided on March 27, 
 1893, Mr. Justice Reed, in rendering the opinion of the Court 
 of Appeals of that State, said: "In the decree it is said, 
 after describing the land, the water decreed shall pass 'as an 
 appurtenance to said land;' and counsel upon the trial appear 
 to have been in harmony with the Court in regarding the 
 water as an appurtenant to the land. This view originated 
 either in a misconception of the law or in the unfortunate use 
 of a word for want of a better. Webster defines 'appurten- 
 ance' as 'that which belongs to something else, an adjunct; an 
 
 penses could not claim that the 
 plaintiff's title to the ditch was 
 conditional under full payment. 
 
 See also Painter vs. Passadena 
 Land Co.,91 Cal.74; 27 Pac.Rep. 539. 
 
 In the recent case of Clyne vs. 
 Benicia Water Co. (Cal.) 34 Pac. 
 Rep. 714, where the facts were, 
 that the defendant company made 
 a contract with the owner of the 
 land on a stream, whereby the 
 latter conveyed to it the right to 
 take water from the stream and 
 to maintain a water pipe through 
 her land, in consideration of 
 which defendant agreed to put a 
 one inch tap in said main pipe 
 wherefrom the land owner could 
 draw free of cost the water needed 
 for irrigation and domestic pur- 
 poses. Defendant supplied such 
 water as would flow through the 
 tap mentioned. Some years later 
 the land was sold under mortgage 
 
 placed thereon prior to the above 
 agreement, and conveyed to the 
 plaintiff. The court held that the 
 right to such water as would flow 
 through the inch tap was ap- 
 purtenant to the land and passed 
 to the plaintiff. 
 
 Ill Colo. 606; 19 Pac. Rep. 761. 
 
 2See also Yunker vs. Nichols, i 
 Colo. 551; Oppenlander vs. Left 
 Hand Ditch Co. (Colo.) 31 Pac. 
 Rep. 854, where the Court held, 
 that irrigation rights acquired by 
 the owner of land and represented 
 by his stock in a ditch company, 
 do not become inseparably at- 
 tached to the land in connection 
 with which the}' are acquired to 
 be used; and, if the owner dis- 
 poses of the stock in the company, 
 he or his grantees have no further 
 claim to such rights for the pur- 
 pose of irrigation. 
 
 3 (Colo.) 32 Pac. Rep. 846.
 
 §270] NATURE AND EXTENT OF RIGHTS. -137 
 
 appendage; something annexed to another thing more worthy.* 
 etc., Blackstone defines 'appurtenance;' 'belonging; pertain- 
 ing; incident; as a right of way appurtenant to lands or 
 buildings.' Bov. Law Die, 'things belonging to another 
 thing as principle and which pass as incident to the principle 
 thing;' and this definition is sustained by numerous legal de- 
 cisions, both English and American. Technically, property 
 tangible and corporeal, capable of sale, of transfer and of use 
 in another place, can not be regarded as appurtenant to land. 
 It must be incorporeal; an easement; a servitude. In Co. 
 I/itt. 121, it is said 'that nothing can be appurtenant unless 
 the thing agrees in quality and nature to the thing whereunto 
 it appertaineth, as a thing corporeal, properly, can not be ap- 
 purtenant to a thing corporeal, nor a thing incorporeal to a 
 thing incorporeal;' and this legal fact is recognized to the 
 present day. According to the recent legal proceedings a 
 party who owns lands and the right to use water from an ir- 
 rigating ditch or canal has t\yo separate and distinct rights of 
 property, either of which could pass by assignment or con- 
 veyance regardless of the other. Hence the right to the use 
 of water for irrigation from an artificial canal for conveying it 
 can not be regarded as appurtenant to the land technically, 
 nor at common law." Then after referring to the decision in 
 the case of Strickler vs. City of Colorado Springs,' the Court 
 said: " In that case it was held that water originally applied 
 to specific lands for irrigation could be sold; taken out at dif- 
 ferent points; could be carried in a different ditch, in no way 
 connected with the land; and could by the purchaser be ap- 
 plied to a different and a distinct use — clearly recognizing 
 two separate and distinct estates, entirely disconnected, one 
 in the land and the other in the water. At the time of the 
 trial of this case the decision had not been made, but it will 
 readily be seen that it is utterly repugnant to the idea of water 
 as 'appurtenant' under any circumstances." 
 
 1 i6 Colo. 6i; 26 I'ac. Rep. 313. vs. Hicks, 35 Pac. Rep. 475, uiul 
 
 As to rulings of Supreme Court I'osl Note to Sec. 4SS. 
 of Wyoniinj^on subject see l-'raiik
 
 CHAPTER IX. 
 
 Nature and Extent of Rights to Waters Acquired in the 
 Arid Region by Others Than Appropriators. 
 
 Section. — 
 
 271. Contents of chapter. 
 
 I. RIGHTS ACQUIRED BY RIPAR- 
 IAN OWNERS. 
 
 272. Appropriation by riparian 
 
 proprietors. -Western Amer- 
 ican Doctrine. 
 
 273. Riparian rights and irriga- 
 
 tion. 
 
 274. Same. — Authorities dis- 
 
 cussed. 
 
 275. The extent to which water 
 
 may be diverted for irriga- 
 tion. 
 
 276. What is a reasonable use by 
 
 riparian owners. 
 
 277. Same. — Authorities cited. 
 
 278. Same. — Authorities on sub- 
 
 ject continued. 
 
 279. Same. — Continued. 
 
 280. Surplus water must be re- 
 
 turned to natural streams. 
 
 281. Riparian owner and prior ap- 
 
 propriator at the same time. 
 
 282. Same. — Authorities dis- 
 
 cussed. 
 2S3. Same. — Authorities con- 
 tinued. 
 
 284. No right to irrigate non- 
 
 riparian lands. 
 
 285. Conveyance of water rights 
 
 by riparian proprietors. 
 
 286. Mere possession gives no ri- 
 
 parian rights. 
 
 287. Riparian rights in artificial 
 
 water courses. 
 
 Section.— 
 
 288. Riparian owners estopped 
 
 when ? 
 
 II. RIGHTS ACQUIRED UNDEK 
 MEXICAN AND SPANISH LAWS. 
 
 289. Mexican laws. — In general. 
 
 290. Rights acquired in waters 
 
 under Mexican laws. 
 
 291. Same. — Authorities dis- 
 
 cussed. 
 
 292. Legal effect of laws of United 
 
 States upon Mexican 
 grantees' rights. 
 
 III. NATURE AND EXTENT OF 
 RIGHTS IN WATER ACQUIRED 
 
 BY PRESCRIPTION. 
 
 293. Prescription in arid west. 
 
 294. Prescription as against an ap- 
 
 propriator. 
 
 295. Prescription as against ripar- 
 
 ian owners. 
 
 296. Same. — Authorities dis- 
 
 cussed. 
 
 297. Prescription as against any 
 
 other right. 
 
 IV. NATURE AND EXTENT OF 
 RIGHTS ACQUIRED IN SUBTER- 
 RANEAN WATERS IN THE 
 
 ARID WEST. 
 
 298. Subterranean water courses 
 
 — Percolating waters. 
 
 299. Same. — Authorities dis- 
 
 cussed.
 
 §271,272] RIGHTS IN THE ARID REGION. 439 
 
 § 271. Contents of Cluipter.— In this chapter wo will show, 
 in the first place, how the common law rights of riparian 
 owners are modified or extended in the arid region, especially 
 their right to divert the water from natural streams and lakes 
 and apply it to the purpose of irrigation; second, rights that 
 had vested under and bj' virtue of a Mexican or Spanish grant 
 before the southwestern portion of the United States was ac- 
 quired by this country; and third, the nature and extent of 
 rights in and to waters that may be acquired by prescription; 
 also a discussion upon the nature and extent of rights acquired 
 in subterranean waters in the arid west. 
 
 I. Rights Acquired ])y Riparian Owners. 
 
 § '212. Appropciation l)y Riparian Proprietors— >Vestern 
 American Doctrine. — We have seen in a former chapter that 
 under the strict common law rule of riparian rights, as recog- 
 nized by the English authorities and also those of some of the 
 eastern States, a riparian owner must so use the waters of the 
 stream as not to materially diminish it in quantity or alter it 
 in quality. 1 Also, that most of the States formed from the 
 arid region adopted as a part of their jurisprudence the com- 
 mon law of England. Hence it follows that there are two 
 distinct systems or rules of law that govern the use of the 
 waters flowing in the natural streams and lakes of the arid 
 west — right to the use of the water by an appropriation of the 
 same, and right to its use by virtue of an ownership of the 
 soil over or adjoining which the stream runs. Of these two 
 systems, one has its foundation in the equal rights of n// the 
 riparian owners upon the stream to the flow of the current in 
 its natural or accustomed channel without material diminution 
 in quantity or alteration in quality, regardless of any priority; 
 and the other, which is almost the converse of the first has 
 for its basis a right, by virtue of priority, and without any 
 ownership of the soil being necessary, to appropriate and di- 
 vert the water from its natural channel, without obligation 
 upon the part of the appropriators to turn any of it back 
 
 1 See Ante Ch:t])lLT III. Sections 57, 60.
 
 440 RIGHTS IN THE ARID REGION. [^ 272, 273 
 
 into the natural stream; and if it is necessary for his purpose 
 and within the extent of his appropriation, to use the whole 
 of the water of the stream. 
 
 These two systems are antagonistic in their very foundation 
 principles, and therefore antagonistic when it comes to 
 the application of those principles. Had the Government of 
 the United States taken as much pains in disposing of the 
 waters of the public domain in as uniform and systematic a 
 manner as it did of the public lands in the arid region, over 
 which those waters ran, and the greater portion of which 
 lands are absolutely worthless without the application of the 
 water, the laws regarding water rights would not be in their 
 present unsettled and inharmonious condition. But it is not 
 the purpose of this work to debate what the law ought to be or 
 what it might be, but what it is. And we will now proceed 
 to discuss the general nature and extent of rights of riparian 
 proprietors in and to the waters of the streams in those States 
 in the arid west where the common law riparian rights are 
 recognized and protected. 
 
 § 273. lliparian Iligiits and Irrigation. — In some of the 
 States and Territories of the arid west the common law theory 
 of riparian rights has been entirely abolished;^ in others it 
 has been modified to a great extent; and in still others it ex- 
 ists with but few modifications of the common law as it is in- 
 terpreted by the Courts of England and the Eastern States. ^ 
 We have shown in a former chapter^ that although irrigation 
 of the soil under certain circumstances was perhaps allowed 
 under the strict application of the common law theories, it 
 was so restricted by certain rules and restraints placed upon 
 its practicable workings that those theories unmodified were 
 found to be wholly inapplicable to irrigation as it is known 
 and applied in the " Great Arid West."- In that part of the 
 countr)^ in order to make the soil productive, there must be 
 an application of the waters of the streams upon it. In order 
 
 1 See Part Second. under the rules of the various 
 
 2 The exact difference and mod- States. 
 ifications will be discussed in a 3 Sections 68, 8o 
 subsequent part of this work
 
 §273,274] RIGHTS in the auid iir.ciox 441 
 
 to apply it to the soil there must be an aLiual diversion from 
 the natural stream; and, owing to the previous soil, the hot 
 sun and dry atmosphere, a certain loss or diminution in quan- 
 tity must necessarily follow as a result of its application and 
 use for irrigation. Hence, in all of the States and Territories 
 in the arid west, even in those where the common law theories 
 are most strongly applied to riparian rights, there has been a 
 modification of these theories to this extent, that a riparian 
 proprietor may take water from the stream and may make a 
 reasonable use of it for purposes of irrigation.^ It is consid- 
 ered in the Pacific States and Territories that irrigation must 
 be held in that climate " to.be a proper mode of using water 
 by a riparian proprietor," and the lawful extent of the use 
 depends upon the circumstances of each particular case.- 
 
 §274. Same. — Authorities Discussed. — In a case decided 
 by the Ninth United States Circuit Court, Union Mill & Min- 
 ing Co. vs. Ferris,^ Mr. Justice Hillyer, in rendering the opin- 
 ion of the Court, said: "To lay down the arbitrary rule 
 contended for by the defendant, 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 unnecessary destruction of 
 the rights of other proprietors upon the stream who have an 
 equal need and an equal right. The more we examine the 
 more we become impressed with the wisdom of the common 
 law rule, that each proprietor may make a reasonable use of 
 the stream, and that what that is depends upon the circum- 
 stances of the case. It will also be seen from the rule as 
 before stated that the question of reasonable use is not to be 
 determined solely by the wants of the party using the water— 
 
 1 Union M. & M. Co. vs. Ferris, vs. TanKcnian, 65 Cal. 334; l-'crrca 
 
 2 Sawyer, 176; Union M. & M.Co. vs. Knipe, 28 Cal. 343; IVrcj^'oy vs. 
 
 vs. Dangberg, 2 Sawyer, 450; McKissick, 79 Cal. 572; Sliarj) vs. 
 
 Ellis vs. Tone, 58 Cal. 289; Ana- Hoffman, 79 Cal, 404. 
 
 helm W. Co. vs. Semi-Tropic W. 2jones vs. Adams, 19 Ncv. 7S; 6 
 
 Co., 64 Cal. 185; Lux vs. Hag^in, Pac. Rep. 442; Union Mill & M. 
 
 69 Cal. 255; Swift vs. Goodrich, 70 Co. vs. I-erris, 2 Saw. 176; Lowe 
 
 Cal. 103; Coffman vs. Robbins. S vs. Shaffer (Ore.), 33 l'^'^'- Kfp- 
 
 Oregon, 278; Mud Creek Ir. Co. 67H. 
 
 vs. Vivian, 74 Texas, 170; Learned '-^2 Sawyer, 195.
 
 442 RIGHTS IN THE ARID REGION. [§274 
 
 whether the amount is reasonably sufficient for his own law- 
 ful purposes— but reference must also be had to the rights and 
 needs of other proprietors upon the stream. ' The necessities 
 of one man's business cannot be made the standard of another 
 man's rights in a thing which belongs equally to both.' i 
 
 "No more definite rule can be safely laid down which will 
 be of universal application. * * * Irrigation must be 
 held in this climate to be a proper mode of using ivater by a 
 riparian proprietor, the lawful extent of the use depending 
 upon the circumstances of each case. With reference to these 
 circumstances the use must be reasonable, and the right must 
 be exercised so as to do the least possible injury to others; 
 there must be no unreasonable detention or consumption of 
 the water. That there may be some detention follows neces- 
 sarily from any use whatever. How long it may be detained 
 or how much it may be diminished can never be stated as an 
 arbitrary or abstract rule." 
 
 And in a case decided by the Supreme Court of Nevada, 
 Jones vs. Adams, ^ the Court upon this subject observed: 
 
 When it is said that such use must be made of the water as 
 not to affect the material rights of other proprietors it is not 
 meant that there cannot be any diminution or decrease of the 
 flow of the water; for if this should be the rule then no one 
 could have any valuable use of the water for irrigation, which 
 must necessarily in order to be beneficial be so used as to 
 absorb more or less of the water diverted for this purpose. 
 The truth is that under the principles of the common law in 
 relation to riparian rights, if applicable to our circumstances 
 and condition, there must be allowed to all, of that which is 
 common, a reasonable use. If the judgment had been based 
 upon the findings in relation to riparian rights it would there- 
 fore have been at least as favorable to respondent as it now is. 
 The Court would not have given either party the right to 
 absolutely divert any portion of the water away from the 
 stream, nor allowed to either any definite quantity or portion 
 
 1 Citing Wheatley vs. Christman, lo Allen, 447; Hays vs. Waldron, 
 24 Penn. St. 302; Brace vs. Yale, 44 N. H. 583-4. 
 
 2 19 Nev. 84; 6 Pac. Rep. 442.
 
 §274,275] RIGHTS in the arid region. -143 
 
 for the purposes of irrigation, but would have given to each 
 a reasonable use of the water and determined the question of 
 reasonable use by the particular facts and circumstances as 
 revealed by the evidence." 
 
 In the case of I,ux vs. Haggin,^ the Court held that by the 
 laws of that State riparian proprietors are entitled to a rea.son- 
 able use of the waters of a stream for the purposes of irriga- 
 tion; and what is a reasonable use is a question of fact, and 
 depends upon the circumstances appearing in each particular 
 case. Also in the case of Swift vs. Goodrich,- the Court said: 
 " A riparian proprietor may take water from the stream for 
 necessary household purposes, and may make reasonable use 
 of it for irrigation."^ 
 
 From these authorities there can be no question as to the 
 authority of riparian owners of the western States to divert 
 the waters of a stream which runs through or adjoins their 
 lands, and we will consider next the extent to which he may 
 so divert it. 
 
 § 275. The Extent to Wliicli Water May be l>iveile<l for 
 Irrigation. — A riparian proprietor is not entitled to tiivert 
 and use all the water of a stream for irrigation without regard 
 
 to the wants and necessities of other riparian proprietors, al- 
 though the amount so diverted and used was no more than 
 necessary for the irrigation of his lands, as is the case with 
 those who claim the water by virtue of a priority of appropria- 
 tion,^ unless the proprietor lays claim to the water as a prior 
 appropriator as well as a riparian proprietor. In the latter 
 
 1 69 Cal. 255, 394, 409; 10 Pac. disuse does destroy or suspend it. 
 
 Rep. 674. The right in each extends to the 
 
 270 Cal. 105. natural and usual flow of all the 
 
 3 Citing Lux vs. Haggin, 69 Cal. water, unless wlicre the (juantity 
 
 255. See also Coffman vs. Rob- has been diniinishetl as a ronse- 
 
 bins 8 Ore. 278. quence of the reasonable aj)plica- 
 
 By the common law the right of tion of it by other riparian own- 
 
 the riparian proprietor to the flow era. 
 
 of the stream is inseparably an- Lux vs. Ilaggin, supra; Unrncs 
 
 nexed to the soil, and passes with vs. Sabron, 10 Nev. 217. 
 
 it, not as an easement or appurten- •» See ante Sections 225-227; 
 
 ant but as a part and parcel of it. Tnion M. & M. Co. vs. l-erris, 2 
 
 Use does not create the right and Sawyer, 176, Hale vs. Mcl.tn. 53
 
 444 RIGHTS IN THE ARID REGION. [§275 
 
 case the rules applicable to prior appropriators will apply. In 
 fact there is but one instance where a riparian proprietor is 
 permitted, under the laws of the western States, to divert and 
 use all of the waters of a stream. An upper riparian proprietor 
 is entitled to take from the stream as much water as is necessary 
 for watering his cattle and for domestic uses, even when such 
 necessities may consume all the water of the stream.^ Mr. 
 Washburn, in his work on "Easements and Servitudes," 
 sums up these principles in the following language: " The 
 right of a riparian proprietor, J2ire naturae, to divert water 
 from a stream when reduced to a simple proposition seems to 
 be this, he may not do it for any purpose except domestic 
 uses and that of irrigating his land; whether and to what ex- 
 tent he may do the latter depends in each particular case upon 
 whether it is reasonable, having regard to the condition and 
 circumstances of other proprietors upon the stream, and this is 
 to be determined in all cases of doubt by a jury. But in no case 
 may he do this so as to destroy or render useless, or materially 
 diminish, or affect the application of the water by other pro- 
 prietors. "^ In lyux vs. Plaggin, cited above, the Court said: 
 " An entire diversion of a water course by an upper riparian 
 proprietor for irrigation is never allowed." 
 
 The owner of land through or along which a natural stream 
 flows has a right to the reasonable use of the water of such 
 stream during its passage, but has no right in the corpus of 
 the water. ^ 
 
 Cal. 578; Ellis vs. Tone, 58 Cal. and for his stock. See also Ferrea 
 
 284; Learned vs. Tangeman, 65 vs. Knipe, 28 Cal. 340; Hale vs. 
 
 Cal. 334; Gould vs. Stafford, 77 McLea, 53 Cal. 578; L,ux vs. 
 
 Cal. 66. Haggin, 69 Cal. 255. 
 
 As to liability of lessors see 2 Washburn on Easements and 
 
 Same vs. Same, 91 Cal. 146; 27 Servitudes, 2nd. Ed. p. 240, 12. 
 
 Pac. Rep. 543; and Same vs. Same, ^ Union M. & M. Co. vs. Dang- 
 
 35 Pac. Rep. 427. I'erg, 2 Sawyer, 450; Eddy vs. 
 
 1 Union M. &. M. Co. vs. Dang- Simpson, 3 Cal. 249; Crandall vs. 
 
 berg, 2 Sawyer, 450, where the Woods, 8 Cal. 136; Kidd vs. Laird, 
 
 Court held that in the exercise of 15 Cal. 161; Hale vs. McLea, 53 
 
 his common right each riparian Cal. 57S; Pope vs. Kinman, 54 Cal. 
 
 proprietor may consume so much 3; Lux vs. Haggin, 69 Cal. 255; 
 
 of the water as is necessary for Weiss vs. Oregon Iron & Steel 
 
 household and domestic purposes Co., 13 Ore. 496.
 
 §276] RIGHTS IN TUK ARID REGION. 145 
 
 § 270. What is a Reasonable Use bv Kipariaii Owners.— 
 
 A reasonable use of the waters of a stream by a riparian pro- 
 prietor may be defined as any use that does not work actual, 
 material, and substantial damage to the common right which 
 each proprietor has, as limited and qualified by the precisely 
 equal right of every other proprietor. • What will be construed 
 as a reasonable use by the riparian proprietor depends en- 
 tirely upon all the facts and circumstances of each particular 
 case considered not only with regard to any one proprietor's 
 right, but WMth regard to the rights of all whose lands adjoin 
 or are divided by the stream. It is impossible to lay down 
 any definite rule that will be of universal application. It is 
 necessary to take into consideration the character of the soil 
 and the climate; the actual amount of water needed to make 
 a certain tract of land productive; the nature and size 
 of the stream, including the water flowing therein, and 
 the uses to which-it can be or is applied. It is also neces- 
 sary to determine the nature and importance of the use for 
 which it is claimed and exercised by one party as well as the 
 inconvenience or injury to all other owners upon the stream; 
 the proportion of water diverted, compared with the whole 
 volume of the stream; the quantity lost by evaporation and 
 absorbed by the soil; the manner of diverting the water from 
 the natural stream and conducting it to the place where it is 
 needed; the mode in which it is used; the quantity of land 
 under cultivation; the kind of crops to be irrigated and their 
 need of water; the means adopted for returning the water to 
 its natural channel; the season of the year, and whether there 
 is low or high water, and all other matters bearing upon the 
 question of fitness and propriety in the use of water by the 
 riparian owner. The diversion must be rea.sonable in the 
 light of all the evidence and circumstances of each particular 
 case. In other words, it must not be unreasonable and with- 
 out regard to the rights and necessities of other riparian pro- 
 prietors. 
 
 1 Union M. &. M. Co. vs. Daiigberg. 2 Saw. 450; '''"< vs. IlaKgin, 
 69 Cal. 255.
 
 446 RIGHTS IN THE ARID REGION. [§ 277 
 
 § 277. Sxame.— Authorities Cited.— Upon this proposition 
 a late California case held:^ " Assuming that in this State an 
 upper riparian proprietor has the right to use a reasonable 
 amount of the water of a natural stream running through his 
 premises for irrigating his riparian land, still he has not the 
 right for that purpose to take all the water which flows in the 
 stream at the point where he diverts it; and if the defendant 
 did (as the evidence tends to show) thus take all the water 
 flowing at the point where it was diverted his act in so doing 
 was wrongful. What would be a reasonable amount of water 
 for irrigation is a question that must depend upon the par- 
 ticular circumstances of each case in which it arises, and it is 
 a question which will often be of difficult solution; but it is 
 clear that in no case can he for that purpose as against a lower 
 proprietor use all the water of the stream. That could be 
 done, if at all, only where the whole of the water was abso- 
 lutely necessary for strictly domestic purposes and to furnish 
 drink for man and beast. "^ 
 
 In a very late case decided by the Supreme Court of Cali- 
 fornia, in March, 1892, in Harris vs. Harrison,"^ the Court held 
 that the common law rules as to riparian rights are so 
 far modified in that State that an upper riparian proprietor 
 has the right to the reasonable use of the water of a natural 
 stream for irrigating the riparian land where irrigation is nec- 
 essary, although such use may appreciably diminish the flow 
 down to the lower riparian proprietor; but he does not have 
 the right to absorb all the water of the stream, so as to allow 
 none to flow down to the lower riparian proprietor. Mr. 
 Justice McFarland, in rendering the opinion of the Court, 
 
 1 Gould vs. Stafford, 77 Cal. 67. lands in the natural flow, except 
 As to liability of riparian owners a given number of inches, is 
 as lessors see Same vs. Same, 91 erroneous, since defendant would 
 Cal. 146; 27 Pac. Rep. 543; and also thereby be deprived of the reason- 
 35 Pac. Rep. 427. able use of any part of the water 
 
 2 In an action by a lower riparian for irrigation or other necessary 
 owner to restrain the diversion by purposes as riparian proprietor, 
 an upper owner of the waters of a Van Bibber vs. Hilton, 84 Cal. 585; 
 stream, a decree ordering that the 24 Pac. Rep. 308; Stanford vs. Felt, 
 whole of the water be allowed to 71 Cal. 249: 16 Pac. Rep. 900. 
 flow unrestricted to plaintiff's 893 Cal. 676; 29 Pac. Rep. 325.
 
 §277J RIGHTS IN THE ARID REOim'. 117 
 
 said upon the subject: "According to tlic common law doc- 
 trine of riparian ownership, as generally declared in Kngland 
 and in most of the American States upon the facts in the case 
 at bar, the plaintiffs would be entitled to have the waters of 
 Harrison canon continue to flow to and upon their land as 
 they were naturally accustomed to flow, without any sub- 
 stantial deterioration in quality or diminution in quantity. 
 But in some of the western and southwesteni States and 
 Territories, where the year is divided into one wet and one 
 dry season, and irrigation is necessary to successful cultiva- 
 tion of the soil, the doctrine of riparian ownership has by 
 judicial decision been modified or rather en/ari^ed, so as to in- 
 clude the reasonable use of natural water for irrigating the 
 riparian land, although such use may appreciably diminish 
 the flow down to the lower riparian proprietor. And this 
 must be taken to be the established rule in California, at 
 least where irrigation is thus necessary. (Lux vs. Haggin, 
 69 Cal. 394.) Of course there will be great difficulty in many 
 cases to determine what is such reasonable use; and ' what is 
 such reasonable use is a question of fact, and depends upon 
 the circumstances appearing in each particular case.' (Lux 
 vs. Haggin, 69 Cal. 394.) The larger the number of riparian 
 proprietors whose rights are involved, the greater will be the 
 difficulty of adjustment. In such a case the length of the 
 stream, the volume of water in it, the extent of each owner- 
 ship 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 nmst enter into the solution of 
 the problem; but one principle is surely established, namely, 
 that no proprietor can absorb all the water of the stream so as 
 to allow none to flow down to his neighbor. 
 
 " In the case at bar only the rights of two riparian proprie- 
 tors are to be considered; none other are involved. And the 
 amount of water in the stream is so small that it is apparent 
 that defendants could not use it for any useful irrigation with- 
 out practically absorbing it all, and leaving none to flow down 
 to plaintiffs' land. There was sufficient evidence to warrant 
 the finding of the Court that in order to irrigate ' it is neces- 
 sary that the full flow of the stream be used at once.' Hut
 
 448 RIGHTS IN THE ARID REGION. [§277,278 
 
 defendants as well as plaintiffs were entitled to a reasonable 
 use of the water for irrigation; and the rights of neither 
 could be declared or preserved by an attempted division of 
 the flow of the water without reference to time. The only- 
 way, therefore, to preserve those rights and render them 
 beneficial was to decree to the parties the use of the full flow 
 of the stream during alternate periods of time; and we do not 
 see why the Court could not decree a division of the use of 
 the water according to the method by which it could be done. 
 And that the division was a just one and not erroneously de- 
 termined upon seems clear. The evidence showed that the 
 arable and irrigable lands of each party was about equal in 
 area; and there is no contention that the division was not 
 equitable, provided that all the other facts were correctly 
 found by the Court." 
 
 §278. Same. — Autliorities on Subject Continued. — Upon 
 the subject of reasonable and unreasonable use, Mr. Justice 
 Hillyer, of the Ninth United States Circuit Court, in the case 
 of Union M. & M. Co. vs. Dangberg,^ after citing a number 
 of authorities upon the subject, said: " 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 proprie- 
 tor. The rule leaves the common right equal in times of 
 plenty and of scarcity. Because the river is low and there is 
 not sufficient water to drive plaintiff's mill the proprietors 
 above cannot be debarred from all use. They may still use 
 the water, taking care to do no material injury to the com- 
 mon right of plaintiff", having regard to the then stage of the 
 river." 
 
 In the case of Weiss vs. Oregon Iron & Steel Co.,^ the 
 Court said: " Such use of a stream by riparian owners is, to 
 some extent, a question of degree, and in all such cases the 
 right and capacity of the stream is to be considered. The 
 amount taken from a large running stream which would cause 
 
 1 2 Sawyer, 459. 2 13 Oregon, 496; 11 Pac. Rep. 257.
 
 §278,279] RIGHTS in the arid rkgion. 449 
 
 no sensible or practical diminntion of its benefits to a lower 
 proprietor would if taken from a small stream materially 
 diminish its quantity and work a manifest injury. What is 
 a reasonable use must necessarily depend upon the facts, con- 
 sidering the size of the stream and the amount appropriated. 
 But all the authorities concur that when the amount abstracted 
 perceptibly or materially diminishes the quantity of a stream 
 such use of it by a riparian owner is unreasonable and an in- 
 fringement on the rights of other riparian owners, for which 
 the law furnishes redress." As the converse of this right of 
 the riparian proprietor to a reasonable use of the waters for 
 irrigation, we will say that the authorities hold that every 
 proprietor of land through which flows a stream of water has 
 a right to the use of the water flowing in its natural chainiel 
 without diminution or obstruction, except so far as upper 
 riparian owners may use said water for domestic use, stock 
 and reasonable irrigation.^ 
 
 § 270. Same. — Continued. — So sacred do the common law- 
 authorities hold this right of the riparian owners to the flow 
 of the water in its natural channel without materal diminu- 
 tion or obstruction that they even go so far as to hold that an 
 owner above in protecting his own land from injury cannot 
 cut off the water of the stream by a dam, if it obstructs or 
 diminishes the flow of a stream for" those below him. The 
 facts in the case of Bliss vs. Johnson^ were that the defend- 
 ant's lands were in danger of being flooded by other parties 
 above in letting in an additional supply of water to that which 
 
 1 Taylor vs. Welch, 6 Ore. 198; and cause it to overflow and irri- 
 
 Hayden vs. Loii}^, 8 Ore. 244; jjate his land, provided it resumes 
 
 Coffman vs. Robbins, 8 Ore. 278; its natural channel before it eu- 
 
 Shively vs. Hume, 10 Ore. 76; ters the land of a lower proprie. 
 
 Shook vs. Colonian, 12 Ore. 239; tor, and he is not liable for injury 
 
 See case of Toole vs. Correth, 31 to such proprietor unless he wan- 
 Texas, 362; 98 Am. Dec 540, where tonly and maliciously uses the 
 the Court held: An upper appro- stream, and takes more water than 
 priator of land in which orij^iuateil is necessary for a^jricultural pur 
 a spring for"ii"K 'I stream, runniuK poses, 
 through his land and into the land --](•> Cal. 597. 
 of another, may <livert the stream
 
 450 
 
 RIGHTS IN THE ARID REGION. [§279,280 
 
 naturally flowed in the stream. The defendant constructed a 
 dam and cut off the flow of all the water from the natural 
 channel and diverted it in another direction in order to pro- 
 tect his own lands. And the Court held that the plaintiff 
 being an owner of land below the dam adjoining the stream 
 had a right to the free flow of the water to his land without 
 obstruction, and that the defendant had no right to divert the 
 water, even to protect his land from injury which the addi- 
 tional quantity of water produced. 
 
 Mr. Gould in his work on Waters says on this subject: 
 " The extent of each proprietor's right to thus withdraw the 
 water depends upon the circumstances of the case. The owner 
 of a large tract of porous land abutting on one part of the 
 stream could not lawfully irrigate such land continually by 
 canals and drains, and so cause a serious diminution of the 
 quantity of water, although there may be no other loss to the 
 natural stream than that arising from the natural absorption 
 and evaporation of the water employed for the purpose." ^ 
 
 § 280. Surplus Water Must Be Returned to Natural 
 
 Stream. — The riparian proprietor is entitled to use only so 
 much of the water of the stream as will not diminish its 
 quantity to the injury of other riparian proprietors located 
 below him; and he may use it for irrigation or for any other 
 useful or beneficial purpose, provided he returns the water to 
 its natural channel before it reaches his neighbor below, so 
 that the stream will flow by his land without any essential 
 diminution. This is the common law rule of England and 
 the eastern States; and it is also the rule in those States and 
 Territories in the arid region which recognize and protect the 
 common law riparian rights.- Such proprietor has the right 
 to use the water for the purpose of irrigation as an incident to 
 his ownership to the land; the right is not acquired by user, 
 
 I Gould on Waters, Section 217. Dangberg, 2 Sawyer, 454; Gould 
 
 2 See Ante Sections 276, 279; vs. Stafford, 77 Cal. 66; 18 Pac. 
 
 Lux vs. Haggin, 69Cal. 397; Union Rep. 879; Same vs. Same, 91 Cal. 
 
 M. & M. Co. vs. Ferris, 2 Sawj'er, 146; 27 Pac. Rep. 543; and also 35 
 
 198; Weiss vs. Oregon Iron & Pac. Rep. 427; Harris vs. Harri- 
 
 Steel Co., 13 Oregon, 496; 11 Pac. son, 93 Cal. 676; 29 Pac. Rep. 325. 
 Rep. 257; Union M. & M. Co. vs.
 
 §280] RIGHTS IN THE ARID REGION. 451 
 
 but is classified by the common law authorities as belon^nng 
 to the extraordinary uses to which water may be applied by 
 riparian proprietors. i The only limitation to his use is, as we 
 may see by referring to the authorities, that he must so use 
 the water as to cause no actual material damage to any other 
 riparian proprietors; but a cause of action against him may 
 arise when no actual damage has resulted from his unreason- 
 able use of the water. One riparian proprietor has no right 
 to permanently divert from another, in the technical sense, 
 any portion of the water so that it either does not return 
 to the stream at all or until it has passed the land of him 
 below. Such a diversion would be a clear violation of right, 
 and if continued adversely for the requisite statutory period 
 would ripen into a title by adverse possession. An action, 
 therefore, would lie for an injury to the right by the lower 
 proprietor, without proving any actual damage or showing 
 that the lower proprietor was making any practical use of the 
 water. 2 
 
 The Supreme Court of California, in the case of Stanford 
 vs. Felt,^ laid down the doctrine upon this subject as follows: 
 " By the common law of England the right of the riparian 
 proprietor to the flow of the stream is inseparably annexed to 
 the soil and passes with it. Not as an easement or appurte- 
 nant, but as a part and parcel of it. Use does not create the right, 
 and disuse cannot destroy or suspend it. The right of such pro- 
 prietor extends to the natural and usual flow of all the water 
 of the stream, unless when the quantity has been diminished 
 as a consequence of a reasonable use or appropriation of it by 
 other riparian owners for proper and legitimate purjioses. 
 The use by the riparian owner for domestic purposes, for irri- 
 gation and for the propulsion of machinery are recognized as 
 proper and legitimate purposes. This we regard as the law of 
 this State. It appears to be the law that where all the water 
 of a stream is needed for domestic purposes and for watering 
 cattle, and is thus consumed by one proprietor, the law allows 
 such use. But in making such rcasonal)le use of water the 
 
 IvSee Ante vSectioiis 6«, 79. see post Chiii)ler XI.. Siiti(»ii» 
 
 2 See authorities cited above; 321,329. 
 
 '^71 Cal. 24y; i<> Tac. Rep yoo.
 
 452 RIGHTS IJv^ THE ARID REGION. [,^ 280, 281 
 
 proprietor must return the surplus which remains after such 
 use to the natural channel of the stream; and if this is not 
 done the diversion will be restrained at the suit of a riparian 
 owner below. Nor is the owner lower down the stream re- 
 quired to show, in order to procure an injunction, any actual 
 present damage. The diversion by lapse of time might grow 
 into a right. To prevent such result an injunction will be 
 awarded." ^ 
 
 §381. Ilipariuu Owner and Prior Appropriator at the 
 Same Time. — There are a great many cases where the ripar- 
 ian proprietor is also the prior appropriator of the water of a 
 stream. His rights are limited to those of a riparian proprie- 
 tor only when others whose rights would be injured by the 
 diversion before he has made an appropriation of the waters 
 have settled upon the stream. If a person enters a piece 
 of land through or adjoining which a stream runs and appro- 
 priates the water to some useful purpose before other persons 
 have entered any other lands upon the same stream he stands 
 in the position of a prior appropriator and may divert all of the 
 water of the stream if it is necessary for the purpose for which 
 he appropriated it, without any obligation upon his part to 
 return any portion of it to the natural channel. Of course the 
 purpose for which the appropriation was made must be con- 
 sidered. He is 7ioi permitted tmder any ciraanstances to waste 
 the water, and if the appropriation is for running a mill, the 
 authorities hold that after he has used the water he must 
 return it to the natural channel for the use of those below. ^ 
 But on the other hand, if the purpose for which the water is 
 
 1 Citing Ferrea vs. Knipe, 28 Cal. R. 7 H. L. 697; Parker vs. Gris- 
 
 340:87 Am. Dec. 128; Lux vs. Hag- wold, 17 Conn. 287, affirming 13 
 
 gin, 69 Cal. 255; Billing vs. Mur- Coun. 279. 
 
 ray, 6lud. 324; 63 Am. Dec. 385; 2 in McDonald vs. Askew, 29 
 
 3 Kent's Com. 439; Miller vs. Cal. 200, it was held that the in- 
 
 Miller, 9 Penn. St. 74; 49 Am. Dec. terest acquired by an appropriator 
 
 545; Gould on Waters, 213, 214; for mill purposes was not a prop- 
 
 Crandall vs. Woods, 8 Cal. 136; erty in the water as such but a 
 
 American Co. vs. Bradford, 27 Cal. right to the momentum of its fall 
 
 360; Moore vs. Clear Lake W. W., at the point where the stream was 
 
 68 Cal. 146; L. R. 19 Chan. 451; L. crossed by the dam, and to the
 
 §281,282] RIGHTS IX THE arid region. 453 
 
 appropriated consumes all that is diverted, as is some- 
 times the case where it is used for irrigation, municipal uses 
 or mining, or for sale to others to be used by them for some of 
 these purposes, the authorities hold that the appropriator ac- 
 quires a higher right and is under no obligation to return any 
 of the water to the streams even if he consumes it all, pro- 
 vided, of course, that none of it goes to waste.' 
 
 §282. Same.— Authorities Discussed. — Pomeroy in his 
 
 work on Riparian Rights, upon the above proposition, says 
 (Sec. 133): "A prior appropriation can give no exclusive 
 right to the use of water for purposes of irrigation, and no 
 superior right nor preference as to the quantity of tlie water 
 consumed for such purposes. Whether a person was the very 
 first one who acquired title to lands on the banks of a given 
 stream, and as such sole owner first began to use its waters, 
 or whether after many riparian proprietors had acquired their 
 respective titles he was the first one of them to use its waters, 
 in either case the prior appropriation can give no right to use 
 an unlimited quantity or an excess of quantity nor any other 
 relative superiority in the use of the water for irrigation over 
 all the other private riparian proprietors on the same stream. 
 The doctrine of prior appropriation, as has been shown, is 
 foreign to the common law. So far as recognized by the law 
 of California and of Nevada it is confined to public streams 
 and arose from local customs and the peculiar needs of miners, 
 although it was extended in its application to public streams, 
 to other businesses, occupations and u.ses besides mining. 
 The fundamental conception of the common law system is the 
 purely equitable principle of relative equality of right among 
 
 flow of the water in its natural 'Ortiiiaii vs. Dixon, 13 Cal. %4; 
 
 cour.se above that point as suhse- McDonald vs. H. R. & A. W. ^: M. 
 
 quent to that end. Co., 13 Cal. 220; McKinncy vs. 
 
 See also Kelly vs Natonia Water vSniith, 21 Cal. jSt; N. C. iS: S. C. 
 
 Co., 6 Cal. loS; Anj^ell on Water Co. vs. Kidd, 37 Cal. 313; Smith 
 
 Courses 91, 96; Kddy vs. Simpson, vs. O'llara, 43 Cal. 375; Thorp vi. 
 
 3 Cal. 251; Kidd vs. Laird, 15 Cal. I-'recd. 1 Mont. 658; J.i.WdclI vs. 
 
 179. Simpson, 2 Nov. 277; Sse Ante 
 
 Section 225-237.
 
 454 RIGHTS IN THE ARID REGION. [§282 
 
 all the private riparian proprietors upon the same stream. 
 Nature gives to all the riparian proprietors on any stream an 
 advantage growing out of their location over other owners 
 whose lands do not adjoin a water-course; and this natural right 
 cannot betaken away by the law, although its enjoyment may 
 be interfered with or prevented by arbitrary legislation." 
 With all due respect to the wisdom of Professor Pomeroy, we 
 do not think the above quotation is the law upon the subject 
 in the arid west to-day. As will be seen by comparison the 
 rights acquired by the prior appropriator in and to the waters 
 are far greater than those rights acquired by the riparian 
 owner. Now, wiiere a person is both a prior appropriator and 
 a riparian owner at the same time, that his right should be 
 limited simply by the fact that he had a title to the land 
 which adjoined the stream and was not at a distance from it 
 does not seem to be reasonable, and we do not think that under 
 the authorities it is law. Unfortunately Mr. Pomeroy did not 
 cite any authorities which sustained his views set forth in the 
 section quoted. We admit that the proposition that "the 
 fundamental conception of the common law system is the 
 purely equitable principle of relative equality of right among 
 all the private riparian owners upon the stream " is the com- 
 mon law theory of riparian rights upon the subject. But 
 when appropriation //a^- /r^c^flf^flf the vesting of <2;iy title in and 
 to the soil adjoining the stream in owners other than the 
 appropriator himself the doctrine of the common law declara- 
 tory of the rights of riparian proprietors is inapplicable; and 
 all controversies between the appropriator and those who 
 secured a title to their lands afterwards as to the prior appro- 
 priator's rights must be determined by the application of the 
 principles of prior appropriation. 
 
 There seem to be ver^' few authorities upon this exact point, 
 but in the case of Edgar et al. vs. Stevenson^ the facts were 
 that the plaintiffs were the owners of certain lands through 
 which a stream ran, and for many years the plaintiffs and 
 their grantors appropriated and used all of the waters of the 
 stream for irrigation, domestic and household purposes, ex- 
 
 1 70 Cal. 286.
 
 §282] RIGHTS IN THE ARID REGION. 4.')') 
 
 cept in times of extraordinary liigh water or freshets; that all 
 of the water was necessary for the uses for which it was ap- 
 propriated, except at times of high water; that the defendant 
 diverted the surplus water from the stream during the time 
 of extraordinary high water, when there was more than 
 enough for the needs of plaintiffs. The Supreme Court held 
 that the plaintiffs were not entitled to an injunction restrain- 
 ing defendant from using such surplus, but that they were en- 
 titled to a judgment restraining the defendant fri)m diverting 
 any of the waters of the stream at its ordinary flow. Thus 
 holding that the plaintiffs, although they were riparian owners, 
 were entitled to all the waters of the stream at its ordinary 
 flow (as against a subsequent appropriator). 
 
 In the case of Kaler vs. Campbell^ both the plaintiff and 
 defendant derived their title to their lands from the United 
 States and through the land of both a small stream ran. The 
 plaintiff by means of a ditch first appropriated a portion of 
 the water of the stream for the purpose of irrigation, stock 
 water and domestic purposes; and needed the amount of water 
 appropriated for such purposes. Subsequently the defendant 
 diverted and appropriated a portion of the waters of the stream 
 for the irrigation of his land. Both diverted the water near 
 the same point upon the creek which was above their t)wii 
 lands and upon land belonging to the United States. .Subse- 
 quently the plaintiff acquired title from the Ihiited States ti) 
 the land above upon the stream, including the points of di- 
 version of both himself and defendant. The plaintiff brought 
 an action in equity to restrain defendant frcjm diverting the 
 water from the stream. It will be noticed that both parties 
 were riparian owners and both appropriators. And upt)n this 
 statement of facts the vSupreme Court of Oregon .said: " Al- 
 though some other questions were noted at the argument, the 
 real contention in the case is as to the amount or (piantity of 
 water the plaintiff is entitled to by actual jjrior appropria- 
 tion. And this is purely a question of fact and to be deter- 
 mined by the evidence. The basis of the i)laintifl''s rights in 
 the premises, and also of the defendant's, rest upon Congres- 
 
 1 !3 ()rc),'oii 5'/); >' l':»*- R«'P- .V>«-
 
 456 RIGHTS IN THE ARID REGION. [§282 
 
 sional legislation. With the doctrine of the common law as 
 applied to riparian owners we have nothing to do upon the 
 facts made by this record. It seems that when plaintiflFsettled 
 his claim there was no other person above him upon the stream 
 running through his land, nor any appropriation of its water. 
 For the purpose of irrigating his soil and for domestic and 
 stock uses he went above his land and upon Government land 
 and diverted the waters of Clover creek. This he had a right 
 to do under the act of Congress, and to the extent he had 
 actually appropriated and used he had a vested right as to 
 that amount or quantity of water, and whoever afterwards 
 purchased above or below him took subject to such right of 
 prior appropriation actually made by him. When afterwards 
 the defendant acquired the title to the adjoining land his right 
 to appropriate the water of the creek to irrigate his land was 
 subject to the prior appropriation of the plaintiff, and neces- 
 sarily limited to whatever surplus remained. And when, 
 subsequent to this, the plaintiff bought of the Government the 
 land above his claim, where both he and the defendant by 
 means of ditches had been diverting the waters of the creek to 
 their own lands and appropriating the same, he took such land 
 from the Government subject to the amount or quantity 
 actually appropriated by the defendant in such surplus. Thus 
 the rights of the parties stand. Just what amount the plain- 
 tiff appropriated it is difficult to determine from the evidence. 
 It is certain he did not appropriate all the water of the creek, 
 as alleged . ' ' 
 
 It must be noticed in this connection that in the State of 
 Oregon the authorities are inclined to protect the rights of 
 riparian owners as far as they can be protected.^ 
 
 ISee Weiss vs. Oregon I. & S. or have sustained but small pecun- 
 Co., 13 Ore. 496; II Pac. Rep. 255; iary damage, and although defend- 
 in which the Court held: A ripa- ants may be subjected to heavy ex- 
 rian proprietor owning to the cen- penses if compelled to restore the 
 ter of a stream is entitled to the aid water to its natural channel, 
 of equity to prevent a diversion of Taj-lor vs. Welch, 6 Ore. 198 ; 
 tlie waters from their natural Hayden vs. Long, 8 Ore. 244; Coff - 
 channel, although he may have man vs. Robbins, 8 Ore. 278; 
 no use of the water-power himself vShively vs. Hume, 10 Ore. 76.
 
 §283] iiuiiiTs IN THi: Aini) hkgiox. -i')? 
 
 §283. Same— Authorities ('«mtiiiiuMl.— In a very recent 
 case decided by the Supreme Court of California. Ilealy 
 vs. Woodruff,^ the Court held upon the exact point in ques- 
 tion: the fact that one who had appropriated for irrij^ation 
 purposes a certain quantity of water is a riparian owner on the 
 stream from which the water is taken can not be urged aj^ainst 
 his right afterwards to take a greater quantity, where no 
 other rights were in existence at the time or for years after- 
 wards. And in the decision of the Court, Mr. Justice McFar- 
 land in rendering the opinion said: " It appeared that the 
 Court held that because the plaintiff's grantor acquired the 
 title to some land on the stream, and thus became a riparian 
 owner, he could not afterwards acquire any more water by 
 appropriation, and that, therefore, his enlargement of the 
 ditch in the winter of 1873 and 1874 did not give him any 
 rights to an increased flow of water in his ditch as against any 
 one who years afterwards might assert riparian rights on the 
 stream above the ditch. But this position is clearly unten- 
 able. The fact that the plaintiff or his grantor was a riparian 
 owner does not warrant the conclusion that he could not be an 
 appropriator. * * * ^\iq notion seems to be that beci)m- 
 ing a riparian owner estoppes one in some sort of way from 
 being an appropriator of water, although there was no one in 
 existence in whose favor the estoppel can be invoked. When 
 the ditch was enlarged there was no person having any rights 
 on the stream except plaintiff's grantor himself, and therefore 
 the enlargement of the ditch encroached upon nobody's vested 
 or prior rights. Respondents argue that if appellant's posi- 
 tion be correct the first riparian owner could monopoli/.e all 
 the waters of the stream. But they admit that an appropria- 
 tor who is not a riparian owner can take all the water of a 
 stream on the public lands if he be the prior or first appro- 
 priator; and it would certainly be strange if the first comer to 
 a stream who acquires title to some land upon it has less 
 rights to the water of the .stream than one who owns no land 
 there at all. * * * Counsel comjilain that this view gives 
 great advantage to tlie first ])ossessor and appropriator of tlie 
 
 I97 Cal. .\<y\: r-,2 I'.ir. Rip. .SJS.
 
 458 KIGHTS IN THE ARID REGION. [§283,284 
 
 water of the stream. This is no doubt true; but it is the ad- 
 vantage which the law gives and which necessarily follows 
 prior occupancy and appropriation."^ 
 
 § 284^. No Riglit to Irrigate Non-Ripiiriau Lands.— 
 
 Whatever may be the right of an upper proprietor to a reason- 
 able use of a part of the water of a stream to irrigate his 
 riparian land, he has no right to take any of it away to irri- 
 gate other lands not riparian. ^ 
 
 Neither can a riparian owner authorize, as against a lower 
 proprietor, a company to take water from the stream to be con- 
 ducted to a distance and sold. ^ Upon this point Mr. Pomeroy, 
 in his work on Riparian Rights, says: "The common law 
 doctrines restrict the use of waters of natural streams to the 
 lands bordering on those streams, and the right to use the 
 waters is held exclusively by the private owners of such lands 
 in their character as riparian owners. There is nothing more 
 completely antagonistic to the common-law system, nothing 
 which would more completely destroy the equality and equity 
 of the common distribution of rights among all the private 
 riparian proprietors on any particular stream than the appro- 
 priation and diversion of its waters by means of ditches or 
 canals for the benefit of lands not adjoining the stream, by 
 persons who are not, with respect to such lands, riparian pro- 
 prietors. If a private riparian proprietor owns a tract of land 
 actually bordering on the stream he may possibly be entitled 
 to use the water for that purpose of irrigating the entire tract, 
 
 ^ See also Elliot vs. Whitmore Schaffer (Ore.), 33 Pac. Rep. 678, 
 
 (Utah), 24 Pac. Rep. 673, where it was held that after the needs of a 
 
 the Court held that where a person prior appropriator of the waters of 
 
 settles upon public land unsurvey- a certain stream are satisfied he 
 
 ed with the intention of acquiring can not claim as riparian proprie- 
 
 title as soon as he can under the tor that he is entitled to have the 
 
 law, and appropriates water for excess flow in the channel of the 
 
 its cultivation, such appropriation stream. 
 
 is effective from its date, though 2 Gould vs. Stafford, 77 Cal. 66; 
 
 that may he several years before 18 Pac. Rep. 879; Williams vs. 
 
 he succeeds in perfecting his Wadsworth, 51 Conn. 277. 
 
 title. ^^Heiibron vs. Canal Co., 75 Cal. 
 
 In the recent case of l^owe vs. 426; 22 Pac Rep. 62.
 
 §284,285] RIGHTS in thk akid UEiiiox. l.'O 
 
 no matter how orreat may be its extent, how far clistaiu trum 
 the stream may be its exterior line; but his right to use a 
 quantity of the water sufficient for that purpose must depend 
 upon other considerations to be mentioned hereafter. It is 
 certain, however, that no person can take water from such a 
 stream for the purpose of irrigating his tract of land which is 
 separated from the stream by interv'ening lands belonging to 
 other and riparian proprietors." 
 
 In the late case of Alta Land, etc., Co. vs. Hancock,' the 
 Supreme Court of California held that: All land bordering 
 upon a stream which is held by the same title is riparian to 
 the stream; and the area of lands to which riparian rights are 
 appurtenant can not be diminished by the acts of trespasser 
 segregating for the time being the actual occupancy, without 
 segregation of title, of a portion of the tract not bordering upon 
 the stream; nor can the use of all the waters of the stream for 
 the irrigation of such portion of the tract either render the use 
 of such waters non-riparian, or establish it as a fiict that there 
 can be but that number of acres riparian to the stream. - 
 
 A non-riparian owner's right to running water enables him 
 to restrain an upper proprietor from interfering with such 
 right by using or granting the water which is not riparian."' 
 
 § 2S5. ('oiiv(\vaiic(' of Wsiler Uii;hts by Kipariaii Pro- 
 prietors. — A riparian proprietor may convey any portion ui 
 his land, or any one or all of his riparian rights in and to the 
 use of the waters of the stream, either together with the land 
 or apart from each other. ^ It has been decided many times 
 by the Supreme Courts of the States and Territories founded 
 out of the arid west, as well as by the Supreme Court of the 
 United States, that the waters of non-navigable streams in 
 those States may be acquired by appropriation for any or all 
 useful or beneficial purposes.'"' If such waters can be acquired 
 by appropriation the authorities hold that, a prior/, they may 
 
 ISsCal. 219. :< Heilhron vs. I<nsl Chiiiu-«- W. 
 
 SHeilbron vs. Last Chance W. Co.. 75 Cal. 42<). 
 
 Co., 75Cal. 117; Lux vs. HaKK>". ^Crossvs. Kitts. '«, Cal. 222; i.> 
 
 69 Cal. 390; St. Helena Water Co. Vac. Rep. 409. 
 
 vs. Forbes, 62 Cal. 1S2. ''See Ante Section 17.V
 
 460 RIGHTS IN THE ARID REGION. [^ 285 
 
 be acquired by express grant of the owners of the land over 
 which they riin.^ 
 
 Mr. Justice Ross, District Judge of the 9th Circuit of the 
 United States, in the case of Doyle vs. San Diego ly. & Town 
 Co.,^ rendered a very able opinion upon the subject in which 
 he collects the authorities. In this case he said: "Being 
 the owners in fee of the land as well as the water, it was com- 
 petent for them to grant all or any portion of either. ' A 
 grantor of land through which a stream of water flows may 
 reserve the water privilege, or he maj' convey the use of the 
 water in whole or in part, leaving the fee of the land vested 
 in the grantor.' Gould, Waters, § 299. ' A grant of a water 
 course in law,' says Jessel, M. R., 'especially where coupled 
 with other words, may mean any one of three things. It may 
 mean the easement or the right to the running of water, it 
 may mean the channel pipe or drain which contains the 
 water, and it may mean the land over which the water flows. 
 What it does mean must be shown by the context; and if 
 there is no context I apprehend that it would not mean any 
 thing but the easement, — a right to the flow of the water. A 
 grant of a 'pool' or 'gulf or of a 'pond' passes the land which 
 is covered with water. So a grant of a 'well' or 'spring' or 
 'wharf is effectual to pass the soil as well as the water.' Id. 
 § 304a. B}^ the deed of June 9, 1869, the owners in fee of all 
 the land and water here in question granted to the Kimball 
 Brothers Water Company, its successors and assigns, 'all the 
 water flowing in the stream called Sweet Water River, * * ''^ 
 in said county of San Diego, with the right to divert the same 
 from its natural channel at any point or points, and to con- 
 duct the same over, along and across any of the lands of the 
 parties of the first part (the grantors) in said county, b}' means 
 of flumes, canals and acqueducts, together with free ingress, 
 egress and regress to and for the said party of the second part 
 (The Kimball Brothers Water Company), its successors and 
 assigns, and its and their servants and workmen, with horses, 
 
 lBo,vle vs. vSan Diego L. & T. vs. Johnson, 26 Vt. 64; Miller vs. 
 
 Co., 46 Fed. Rep. 709; Cross vs. I^apham, 44 Vt. 416; vSoule vs. 
 
 Kitts, 69 Cal. 222; ID Pac. Rep. Russell, 13 Met. 436. 
 
 409; Gould on Waters, 299; Rood '-^46 Fed. Rep. 709.
 
 §285,286] RIGHTS in the arid region. 401 
 
 carts and carriages, at all convenient times and seasons, in, 
 along and upon said flumes, cauAls and acqueducts, for the 
 amending, cleaning and repairing of the same, with libert\- 
 and privilege for the purpose to dig and to take stone and 
 earth from the adjacent lands of the party of the first part, 
 when and as often as need or occasion requires. To have and 
 to hold, all and singular, the premises and privileges hereby 
 mentioned and granted, or intended so to be, with the ap- 
 purtenances, unto the said party of the second part, its suc- 
 cessors and assigns.' I do not think there is any room for 
 mistake in respect to the true meaning of this language. It 
 is impossible to limit its scope to the water flowing in the 
 river at the instant of the execiitiou of the deed. Such a con- 
 struction would be absurd. It is true, as said by complainant's 
 counsel, that the deed does not use the words all waters 
 'hereafter to flow' in the Sweet Water River; but the language 
 employed cannot reasonably be construed any other way than 
 as embracing the waters then flowing and thereafter to flow in 
 that river. The grantee, its successors and assigns, were 
 granted the right to divert the waters granted from their nat- 
 ural channel at any point or points. Such diversion neces- 
 sarily must occur subsequent to the grant, which must there- 
 fore necessarily include the waters thereafter flowing in the 
 stream. The purpose had in view by all the parties, as well 
 as the language used, clearly shows that the grant was con- 
 tinuous and perpetual in its nature, and included not only the 
 water at the time flowing, but thereafter to flow in the stream 
 in question, and inured not only to the benefit of the grantee, 
 but in express terms to its successors and assigns as well. No 
 legal reason exists why it could not. The water in question 
 was a part and parcel of the land over which it flowed, and 
 when its owners granted the water they necessarily granted an 
 interest in the land, which interest was assignable, descendible 
 and devisable." 
 
 § 28G. 3Ien» Possi'ssioii (Hives to Riparian Hii;li<s. As, 
 
 on the one hand, a private riparian jiroprictor has no rij^lit by 
 virtue of his riparian rights to irrigate lands wliich are not
 
 462 RIGHTS IN THE ARID REGION. [§ 286, 287 
 
 strictl}'' riparian/ on the other hand, one who squats upon and 
 occupies or cultivates a tract of land bordering upon a stream, 
 without acquiring any title to the land, acquires no riparian 
 rights to irrigate the soil in his possession, or any other ripa- 
 rian rights in and to the waters of a stream.^ And where a 
 party has a contract for the purchase of land adjoining a river 
 upon conditions not yet fulfilled by him he has not acquired 
 the fee, and the doctrine of riparian rights can not be invoked 
 in his favor. ^ But in this connection a distinction must be 
 made between a squatter and an actual and bona fide settler 
 upon the public lands under the laws of the United States. 
 Even though the latter's rights be in an incomplete and in- 
 choate condition, ifhe has fully complied with all the laws 
 and acquirements relative to his settlement he is entitled to 
 all the riparian and other rights connected with the land as 
 though he had already received his patent.'^ And again, one 
 who squats upon, occupies and cultivates a portion of riparian 
 land belonging to another, claiming adversely under the be- 
 lief that it is Government land, cannot gain any title to the 
 use of the waters of the stream by diverting and using them 
 for the purpose of irrigating such land.'' 
 
 § 287. Riparian Rights in Artificial Water Courses.— 
 
 Rights to water flowing through different estates in an arti- 
 ficial channel, such as a canal, acqueduct or ditch, do not rest 
 upon the same principle as a right to the waters of rivers and 
 water courses flowing in their natural channels. In the case 
 of riparian ownership upon a natural stream each riparian 
 owner \~,pri7na facie entitled to the unimpeded flow of the w^ater 
 in its natural channel , without material diminution in quantity 
 or alteration in quality, as it passes through his land as a 
 
 1 See previous section. ^ Smith vs. Logan, i8 Nev. 149; 
 
 2Alta L. & W. Co. vs. Hancock, i Pac. Rep. 678. 
 
 85 Cal. 219; 24 Pac. Rep. 645; 4 sturr vs. Beck, 6 Dak. 71; af- 
 
 Suiith vs. Ivogan, 18 Nev. 149; i firmed in 133 U. S. 541; Faull vs. 
 
 Pac. Rep. 678; Brown vs. Ashley, Cooke, 19 Ore. 455; 26 Pac. 664. 
 
 16 Nev. 311; Gould vs. Stafford, 5AltaLand & W. Co. vs. Han- 
 
 77 Cal. 66; 18 Pac. Rep. 879. cock, 85 Cal. 219; 24 Pac. Rep. 
 
 645-
 
 §287,288] RIGIIT:^ IN Till- AUID KECION. 463 
 
 natural incident to his ownership thereof; while on the other 
 hand, any rights that may be acquired in any artificial ditch 
 or canal, either as to the flow of the water or any use of the 
 same, must depend upon some grant or arrangement, either 
 proved or presumed, from or with the owner of the ditch rela- 
 tive to the waters diverted therein, or upon some other legal 
 origin. 1 However, the authorities hold that a water course, 
 though artificial, may have originated under such circum- 
 stances as to give rise to all the rights that riparian proprie- 
 tors have in a natural and permanent stream, or have been so 
 long used as to become a natural water course prescriptively.- 
 
 § 288. Riparian Owners Estopped, When J— Where a 
 riparian proprietor has been guilty of misrepresentation or 
 some degree of moral turpitude, and has also stood by and 
 permitted a person to appropriate the waters of a stream by 
 means of a dam, canal or ditch, at great expense, he may be 
 estopped from denying his right to the water as such riparian 
 proprietor.'^ But usually something more than mere silence is 
 required to create such an estoppel, and a riparian owner who 
 sees a person preparing to appropriate the waters of a stream, 
 and constructing his ditch, canal and other works, for the di- 
 
 1 Green vs. Carotta, 72 Cal. 267: Gihiior, 12 Moo. P. C. 131; 1-ree- 
 
 Wood vs. Waud, 3 Exch. 777; man vs. Weeks, 45 Mich. 335- 
 
 Greatrex vs. Haward, 8Exch. 293; Where a party having made a 
 
 Magorvs. Chadwick, ii Ad. & Kl. ditch six feet wide through his 
 
 571; Fox River Flower Co. vs. land conveyed a part of such land 
 
 Kelly, 70 Wis. 287; Niekl vs. Lon- bounding on the ditch the 
 
 donR. R. Co., L. R. loEx. 4- grant was held to extend 
 
 2Sutcliffevs.Booth,32L.J.Q.H. to the center of the ditch, 
 
 136; Iviniey vs. Stacker, L. R. I. Warner vs. Southworth, 6 Conn. 
 
 Ch. 396, 409; Nutall vs. Bracewell, 470. 
 
 L R. 2 Exch. i; Merchy vs. 3 See upon subject of estoppel. 
 
 Gates 78 Maine, 300; Siebert vs. ante sections 260-263 and cases 
 
 Levan, 8 Rcnn. St. 383; Reading cited. Biddle Boggs vs. Merced 
 
 vs Althouse, 93 Penn. St. 4«'; M. Co., 14 Cal. 279; Concord vs 
 
 Roberts vs. Richards, 44 L- T. N. Nort..n, .6 Fed. Rep. 477; Drcxel 
 
 S 271; Adams vs. Manning. 4H vs. Berney, 16 Fed. Rep. 522; 
 
 Conn. 477; 51 Conn. 5; Tcter vs. Alexander vs. Woo.lfonl etc. Co., 
 
 Caswell 38 Ohio St. ^iH; Miner vs. 9" K)'- '""^ J'""'' <^^'"''' ^'"'- "^"• 
 
 vs. Blake, 24 Fed. Rej). 2.}y.
 
 464 RIGHTS IN THE ARID REGION. [§ 288 
 
 version of the water of the stream, has been held not to lose 
 his rights by not objecting. ^ An upper riparian proprietor 
 who enters into an agreement with a lower proprietor whereby 
 the latter grants for a certain term the right to the use of the 
 water of the adjoining stream for domestic purposes and irri- 
 gation is held by the Supreme Court of California, upon the 
 expiration of the agreement, to be not thereby estopped from 
 asserting his rights as a riparian proprietor to the use of the 
 waters of such stream. ^ Further, no estoppel can arise from 
 the neglect of a riparian proprietor to object to the use of the 
 water of a stream by another proprietor, during such time as 
 there is an abundant supply for the use of all.^ But as to 
 whether a riparian proprietor will be estopped from setting up 
 his claim to the waters will depend upon the circumstances of 
 each particular case. In the opinion upon rehearing in the 
 case of Curtis vs. La Grand Hydraulic W. Co.,^ the Supreme 
 Court of Oregon held that under the circumstances of the par- 
 ticular case the plaintiff should not be permitted to set up her 
 riparian interest so as to defeat the defendant's right to a cer- 
 tain portion of the water of Mill Creek, where the diversion 
 was made under claim of title and the defendant believed, 
 and had reason to believe, that the claim was well founded; 
 and where the plaintiff stood by, without asserting or making 
 
 1 Lux vs. Haggin, 69 Cal. 255; Cowles, 24 Ala. 446; Cronin vs. 
 New York Rubber Co. vs. Roth- Gore, 38 Mich. 385; Morris vs. 
 er}', 107 N. Y., 310; P'lat River Moore, 11 Humph. 433; Lawrence 
 etc. Co. vs. Kelly, 70 Wis. 287; vs. Brown, 5 N. Y. 394; Parker vs. 
 Huddleson vs. West Belle View, Baker, 2 Met. 423; Owen vs. Bar- 
 III Penn. St. 110. tholomew, 9 Pick. 920; Dorlarque 
 
 2 Swift vs. Goodrich, 70 Cal. 103. vs. Cress, 71 111. 480; Alexander vs. 
 
 3 Anaheim W. Co. vs. Semi- Kerr, 2 Rawle, 83; Crest vs. Jack, 
 Tropic W. Co., 64 Cal. 185. Upon 3 Watts, 238; Taylor vs. Ely, 25 
 the general doctrine in pais see Conn. 250; Woodward vs. Wilcox, 
 Kimmler vs. San Luis W. Co., 27 Ind. 207; Brewstervs. Strieker, 
 221; La Joy vs. Primni, 3 Mo. 529; 2 N. Y. 19; Danforth vs. Adams, 
 McComb vs. Gilkey, 29 Miss. 146; 29 Conn. 107; Mayo vs. Cartwright, 
 Dutchess of Kinston Case, 2 30 Ark. 407. 
 
 Smith L. C. 675; Osborne vs. •! 20 Oregon, 47; 25 Pac. Rep. 
 
 Endicott, 6 Cal. 194; Rich vs. 378, modifying 20 Oregon, 34; 23 
 
 Atwater, 16 Conn. 418; Brace vs. Pac. Rep. 808. 
 
 Yale, 4 Allen, 393; Ware vs.
 
 §288-290] RianTs in the arid region. 465 
 
 known her claim, while the defendant was expending large 
 sums of money and making extensive improvements under 
 an honest and reasonable belief that it had the right to make 
 such diversion, and without which its expenditures would 
 prove a total loss. 
 
 II. llis^lits AtMiuirtMl Under Mt'xicun and Spanish Laws. 
 
 § '2H\). Mexican Laws.— In UeneraL— It is not the purpose 
 of this work to enter into an extended discussion of the 
 Mexican laws upon the subject of rights that might be ac- 
 quired under them in and to the waters of rivers and streams; 
 and not at all except as to those present existing rights 
 in water in the arid region of the United States which were 
 originally' acquired under the laws of Mexico. It is a well 
 known fact that before Mexico, by the treaty of Guada- 
 loupe Hidalgo in 1848, ceded that part of the territory 
 which comprises a large portion of our arid west, that 
 country had made to private individuals grants of large tracts 
 of land which were included within the boundaries of the 
 territory ceded to the United States. These private individ- 
 uals having acquired the soil by the Mexican grants of course 
 also acquired certain rights and incidents in and to the cor- 
 poreal hereditaments to the soil. Hence the questions natur- 
 ally arise, what were the nature and extent of the rights 
 originally acquired under the Mexican laws in and to the wa- 
 ters of the natural rivers, streams and lakes by those persons 
 who obtained their title to the land by a grant from the Mexi- 
 can Government, and how do the laws of the United States 
 affect those rights thus acquired ? We will now proceed to 
 examine the authorities as to what were the original rights 
 acquired in and to the waters of the streams which (]o\\' over 
 or adjoin these lands. 
 
 §290. lli;;hts Ac(juiiT(l in Waters rndcr .Mexican Laws.— 
 
 By the Mexican law, which follows the civil law, we find that 
 the property in rivers pertained to the nation, but the use of 
 the waters to the inhabitants; and the conunon use of the 
 waters by the public, it would seem, existed only while they 
 continued to flow in their natural channel and constituted a
 
 466 RIGHTS IN THE ARID REGION. [§290,291 
 
 part of the rivers. But we also find that under the Mexi- 
 can law an exclusive use of parts or the whole of the waters 
 of a river or stream might under certain circumstances be 
 legally acquired by individuals for their own private use. 
 " The common right to the use of running water in its natural 
 channel applies onl}^ to those cases where the quantity of 
 water is so great that its entire exclusive appropriation is not 
 necessary, having a regard to the general objects of the insti- 
 tution of property."^ 
 
 "Thus," says Bowyer, "running water is capable indeed 
 of a qualified appropriation orproperty, but subject to a com- 
 mon right by common law, where it is capable of being fully 
 enjoyed without exclusive possession."^ 
 
 Also, we find that the Mexican Government prohibited any 
 diversion or obstruction of the waters of a river by riparian 
 proprietors or others which would interfere with its common 
 use for navigation. But the interference with the common 
 use of non-navigable rivers by private individuals was by no 
 means prohibited under the Mexican law governing the 
 waters of those streams; and the common use of such waters 
 by all who could legally gain access to them continued only 
 while the waters flowed in their natural channel. The Mexi- 
 can Government permitted the diversion of waters from rivers 
 and streams not navigable, and by those who were not known 
 under the common law as riparian owners; this was permitted 
 upon such terms and conditions and with such limitations as 
 were established by law or by usages and customs which had 
 the force of law. 
 
 The rights of riparian proprietors under the Mexican law 
 were recognized to be similar for the most part to the rights 
 of riparian proprietors as recognized under the common law.^ 
 
 § 291. Same.— Aiithori ties Discussed.— Mr. Justice Mc- 
 Kinstry, in the case of LrUx vs. Haggin, supra, in speaking 
 
 iGrotius, Droit de la Guerre; SBowyer's IModern Civil Law, p. 
 
 Puffendorf, Droit de la troture; 62. 
 
 Bovvyer's Modern Civil Law, p. ^ Lux vs. Plaggin, 69 Cal. 255; 10 
 
 61. Pac. Rep. 674.
 
 §291] RIGHTS IN THE ARID REGION. 
 
 467 
 
 of the laws of Maxico relative to rights in water, said: 
 "Conceding the provisions of the Civil Codes of 1870 and 
 1884 to be declaratory of the law as it existed when Cali- 
 fornia was ceded to the United States, they do not confer or 
 recognize any inherent vested right, enforceable in the Courts, 
 in others than riparian proprietors to the use of any portion 
 of the waters of a stream, nor any right except as to those 
 who actually appropriate waters in the manner and in the 
 condition prescribed by the laws. It may be that the Mexican 
 system implies a recognition of an imperfect obligation or 
 moral duty on the part of the Government to provide for the 
 distribution of waters in such a manner as to encourage the 
 settlement of the country, develop manufactures and benefit 
 agriculture. In this view it would seem that the laws were 
 inspired with a liberal spirit, and were well calculated to ad- 
 vance those objects. 
 
 " By the codes the owner of an estate in which there is a 
 natural spring may use or dispose of its waters, subject only 
 to condenmation for public use on compensation to the 
 owner. * * * By article 1066 of the same code the prop- 
 erty of the State does not prejudice the rights over water ac- 
 quired by individuals or corporations, ' by legitimate title, 
 according to what is established by the special laws.' That 
 article declares that the exercise of private property in waters 
 is subject to what is provided in articles 1067, io58 and 1069. 
 The two first prohibit any diversion which shall interfere 
 with navigation. Article 1069 declares: 'The owner of 
 water, whatever may be his title, cannot impede the use that 
 may be necessary for Ihc persons or cattle of a possession or 
 rural estate, nor oppose the construction of indispensable 
 works to satisfy this necessity in the manner least injurious 
 to the owner, but he shall have a right to indenniification, 
 save that the inhabitants shall have acquired the use of the 
 water by prescription or other legal title.' * * * Article 
 1073 of the code of 1870 is: ' Every one who wishes to use 
 the waters of which he can dispose has a right to cause it to 
 pass through intermediate grounds, with the obligation of 
 indemnifying their owners as well also as those who own the 
 lower land on or tlirough which the waters may filter or
 
 468 RIGHTS IN THE ARID REGION. [§ 291, 292 
 
 fall.' We understand the last class to be those whose lands 
 are injured by the water after it has been diverted." 
 
 From the above there can be no doubt but that the laws of 
 Mexico governing the diversion of the waters of streams and 
 lakes were similar to those governing the same in the arid 
 region. And the Court in the case above cited held that: 
 "By the law of Mexico the running waters of California 
 were not dedicated to the common use of all the inhabitants 
 in such a sense that they could not be deprived of the com- 
 mon use." 
 
 § 292. Legal Effect of Laws of United States Upou Mex- 
 ican Grantees' Rights. — From the previous sections it is evi- 
 dent that the laws governing private rights in waters differed 
 very little under Mexican rules at the time when the South- 
 west was ceded to the United States from those in force in 
 California at the present time. The law of appropriation for 
 beneficial purposes was known and recognized as authority, 
 and the same is also true respecting the law of riparian 
 rights. There were in Mexico prior to the cession of Cali- 
 fornia the two systems separate and distinct that we find now 
 under the law of that State. The Mexican law as it existed 
 at the time of the cession of California recognized an inherent 
 and vested right in riparian owners to the use of the waters 
 of a stream; and also recognized a vested right in those who 
 had actually appropriated the waters in the manner and under 
 the conditions prescribed by the laws of that country. When 
 the territory of the Southwest was transferred to the United 
 States by the treaty of Guadaloupe Hidalgo in 1848, and 
 became subject to the laws of this government, and finally to 
 the laws of the respective States and Territories organized 
 out of the same, the existing laws regarding private interests 
 in and to the waters of streams and lakes were not found to 
 be materially in conflict with the laws of the United States, 
 or those finally adopted by the several States and Territories. 
 So, in the change from the Mexican laws to those of the 
 United States few obstacles were thrown in the way as 
 regards water and other property rights of persons who were 
 grantees of the Mexican Government to certain lands included
 
 §292,293J RIGHTS IN THE ARID UEGION. 469 
 
 within this tract, prior to the time of the treaty, and who 
 claimed rights in the waters of flowing streams by virtue of 
 their riparian ownership. Also those persons are protected who 
 were actuallj' at the time of the treat\- appropriating the water 
 to some beneficial use or purpose by diverting. 
 
 It is not our purpose to discuss the question as to what 
 result might have followed had the laws of Mexico respect- 
 ing water rights at the time of the treaty been radically dif- 
 ferent from those in force in the United States. However, 
 we will say that if under the Mexican laws vested rights in 
 the use or ownership of water or other property rights of such 
 a nature as to have been inconsistent with the property laws 
 of the United States or/.of the several States had grown up 
 it is obvious that under the law of Nations and the terms of 
 tue treaty by which this territory w^as transferred, respecting 
 vested rights, the several States under whose respective juris- 
 dictions these water and other property rights came would 
 have had no power to destroy them without just compensation. 
 The stipulations in the treaty were that actual bona fide gran- 
 tees of the Mexican Government shall continue to be owners 
 of their respective tracts, although the territory had passed 
 into the domain of the United States; and that the vested 
 rights in property should be respected by the United States 
 Government.' 
 
 III. Nature and Extent of Uii;li(s in Waters Acquireil 
 by Prescript icMi. 
 §29.'i. Prescription in Arid West. — We have seen in 
 the previous sections that the theory of riparian rights, based 
 upon the common law principles of that subject in the arid 
 west, has been greatly modified from the old common law 
 rule by statutory enactments and decisions of the Courts so as 
 to be more in harmony with the great necessities of that sec- 
 tion. The same can also be said ujion the subject of the right 
 of acquiring title to waters by prescription. Under the com- 
 
 iLux vs. Haf(gin,69 Cal. 255; 10 9 vSawycr, 441, 18 l-od. Rep. 801; 
 
 Pac. Rep. 674; Poineroyon Ripar- I.os .\iiKeles vs. Hal(luiii.53 Cal. 
 
 ian Rij^hts, Section 42, 1 14; Wootl- 471 ; Pope vs. Kiniimn, .S4 C;il. .v 
 ruff vs. North Bloonificld, etc., Co.
 
 470 RIGHTS IN THE ARID REGION. [§ 293, 294 
 
 mon law it has been modified to meet the needs of the western 
 country. The principal modification is, that the period of 
 time daring which the adverse possession must run in order 
 to acquire a title by this means has been reduced by statutory 
 enactments from the common law rule of twenty years to a 
 period corresponding to the time fixed by the statutes of lim- 
 itations of the various States and Territories of the West, as 
 a bar to the entry upon land. When adverse possession has 
 continued uninterruptedly for the required statutory period 
 it works an abandonment to the extent of the possession.^ 
 And in general it can be said that a right to the use of waters 
 may be acquired in the western States as against one who 
 formerly claimed the water by virtue, of a prior appropriation, 
 riparian rights or prescription itself, or as against one who 
 claimed by any other right acquired in waters by an exclusive, 
 uninterrupted, open, notorious and peaceable enjoyment of 
 the water in a particular way, and under a claim or color of 
 right, for a period corresponding to the time fixed by statute 
 of limitations as a bar to an entry on land.^ Not only a right 
 to use the water of a stream, but also a right to pollute the 
 waters of a stream, may be acquired by prescription,'^ but it is 
 limited by the character and extent of that exercised during 
 the entire period of prescription; and an action for damages 
 will lie for any increased fouling causing material injury.'* 
 
 §294. Prescriptiou as Against an Appropriator.— The 
 
 rights in and to the waters of a stream acquired by an appro- 
 priation of the same may be held, granted, abandoned or lost. 
 
 iSee Abandonment by Adverse vs. Hill, 93 Cal. 407; 28 Pac. Rep. 
 
 Possession, ante Section, 256 and 1066; Sparger vs. Heard R. & F. 
 
 authorities cited. Co., 76 Cal. 11; 17 Pac. Rep. 933; 
 
 2 Ball vs. Kehl. 95 Cal. 606; 30 Last Chance Water Ditch vs. Heil- 
 
 Pac. Rep. 780; Crandallvs. Woods, bron, 86 Cal. i; 26 Pac. Rep. 523; 
 
 8 Cal. 136; Huston vs. Bybee, i7 Drew vs. Hicks, 35 Pac. Rep. 565; 
 
 Ore. 140; 20 Pac. Rep, 51; Union Gallagher vs. Montecito, etc., Co., 
 
 Water Co. vs. Crary, 25 Cal. 504; 35 Pac. Rep. 770. 
 
 Faull vs. Cooke, 19 Ore. 455; 26 3 Masonic Temple Ass. vs. Har- 
 
 Pac. Rep. 662; American Co. vs. ris,4New Eng. 407; 9 All. Rep. 737. 
 
 Bradford, 27 Cal. 360; Los Angeles 4 Mississippi Mills Co. vs. Smith 
 
 vs. Baldwin, 53 Cal. 463; Chauvet (Miss.); 11 So. Rep. 26.
 
 §294] 
 
 RIGHTS IN THE ARID REQION. 
 
 471 
 
 The right of the first appropriator m.iy be lost in whole or in 
 some limited portions by the adverse possession of another. 
 And when such a parson has had the continued, notorious, 
 uninterrupted and adverse eiijoymant of the waters or of a 
 certain portion of them during the period prescribed by the 
 statute of limitations for entry upon lands the lawwill presume 
 a grant of the right so held and enjoyed by liini.^ Statutory 
 appropriation is not necessary to prescription, but gives to one 
 seeking to acquire a prescriptive right to divert water the 
 advantage of notice to prior claimants th.it his user is adverse, 
 so as to set the statute of limitations in motion.- The right 
 acquired by prescription is measured by the right enjoyed. 
 It is always confined to the right as exercised for the full 
 period of time prescribed by the statute. Hence it follows 
 that a prescriptive right to, raise the water in a stream to a 
 certain stage is no defense to an action for damages resulting 
 from an overflow caused by raising the waters above such 
 stage.^ In order to establish a right by prescription or ad- 
 verse use the acts by which such right is sought to be estab- 
 
 1 Union Water Co. vs. Crary, 25 
 Cal. 405; American Co. vs. Brad- 
 ford, 27 Cal. 361; Smith vs. Logan, 
 18 Nev. 149; Evans vs. Ross (Cal.) 
 8 Pac. Rep. 88; Dodge vs. Harden, 
 7 Ore. 456; Dorr vs. Hammond, 7 
 Colo. 79; I Pac. Rep. 693; Siebert 
 vs. Frink, 7 Colo. 148; 2 Pac. Rep. 
 901; Cave vs. Crafts, 53 Cal. 135; 
 Cox vs. Clough, 70 Cal. 345; Bealy 
 vs. Shaw, 6 East. 208; ISalslon vs. 
 Bensted, i Camp. 463; Ricard vs. 
 Williams, 7 Wheat. 59; Williams 
 vs. Nelson, 23 Pick. 141; Colvin vs. 
 Burnett, 17 Wend. 564; Hammond 
 vs. Zehner, 23 Barb. 473; 3 Kent's 
 Com. 441-446; Shaw vs. Crawford, 
 10 Johns. 236; Johns vs. Stevens, 
 3 Vt. 316. 
 
 2 Alta Land &. Water Co. vs. Han- 
 cock, 85 Cal. 219. 
 
 3 Tucker vs. Salem I'louring 
 
 Mills Co., 13 Ore. 28; Boynton vs. 
 Longley, 19 Nev. 69. Prescriptive 
 rights limited by user, Bealy vs. 
 Shaw, 6 East. 208; Brown vs. Best, 
 I Wils. 174; Strut vs. Bovington, 5 
 Esp. 56: Crossley vs. Lightowler, 
 L. R. 2 Ch. 478; L. R. 3 Eq. 279; 
 Blackburn vs. vSomers, 5 L. R. ir. 
 I ; Carlisle vs. Cooper, 21 N.J. Ivq. 
 594; 19 Id. 256; 17 Id. 525; Middle- 
 sex Co. vs. Lowell, 149 Mass. 509; 
 Norway PlainsCo. vs. Bradley Co., 
 52 N. H. 86, 103; Russell vs. Scott, 
 
 9 Cowan, 279; Wilklow vs. Lane, 
 37 Barb. 244; Baldwin vs. Calkins, 
 
 10 Wend. 167; Peterson vs. McCul- 
 lough, 50 Ind. 35; Mitchell vs. 
 Parks, 26 Ind. 354; Pientice vs. 
 (ieigcr, 9 Hun. 350; 74 N. Y. 341; 
 Cotton vs. P<jaasset Mfg. Co., 13 
 Met. 429; vStein vs. Bnr<kn, 24 Ala. 
 130.
 
 472 RIGHTS IN THE ARID REGION. [§294,295 
 
 lished must operate as an invasion of the rights of the party 
 against whom it is set up. The enjoyment relied upon must 
 be of such a character as to afford ground for an action by 
 the other party. ^ 
 
 § 295. Prescription as Against Riparian Owners. — Al- 
 though riparian rights are not lost by simply non-user^ the 
 rights of riparian proprietors are an appurtenance to the land 
 running with it as a corporeal hereditament and cannot be ex- 
 tinguished or defeated by an appropriation, but may be ex- 
 tinguished by the acquirement of a prescriptive right to divert 
 the stream by actual and uninterrupted usage, with or with- 
 out the statutory appropriation, if adverse, for a useful pur- 
 pose, under claim of right and continued for the period 
 prescribed by the statute of limitation. ^ The rules of law 
 governing the acquisition of right by prescription in this case 
 are similar to those governing rights acquired in the same 
 manner as against the prior appropriator. The riparian pro- 
 prietor against whom adverse possession is held must have had 
 knowledge or means of knowledge of such occupation and 
 claim of right.'* The appropriator must have proof of posses- 
 
 1 Union M. & M. Co. vs. Ferris, Boyntou vs. Longley, 19 Nev. 69. 
 2 Sawyer, 176; Grisby vs. Clear 4 Thompson vs. Felton, 54 Cal. 
 Lake Water Co., 40 Cal. 396; Ana- 547; Unger vs. Mooney, 63 Cal. 
 heim Water Co. vs. Semi-Tropic 586:49 Am. Rep. 100; Union M. & 
 Water Co., 64 Cal. 185; Dick vs. M. Co. vs. Ferris, 2 Saw. 176; the 
 Bird. 14 Nev. 161; Dick vs. Cald- Mining Debris Case, 9 Saw. 441; 
 well, 14 Nev. 167; Boynton vs. American Co. vs. Bradford, 27 Cal. 
 Clear Lake Water Co., 40 Cal. 396; 360; Alta L. & W. Co. vs. Han- 
 Union M. & M. Co. vs. Dangberg, cock, 85 Cal. 219. 
 
 2 Saw. 450; the Mining Debris Incursions of an appropriator of 
 
 Case, 9 Saw. 441; Cave vs. Crafts, waters of a river upon another's 
 
 53 Cal. 135; Ledu vs. Jim Yet Wa, land to obstruct the flow in the 
 
 67 Cal. 346; Winter vs. Winter, 8 latter's ditch never assented to, 
 
 Nev. 129. but undone as often as discovered 
 
 2 Whitney vs. Wheeler, 121 Mass. by the latter, do not secure any 
 396. prescriptive right in the water se- 
 
 '■^ See ante Section 256, and au- cured thereby, however long con- 
 
 thorities cited; Alta L. &W. Co. vs. tinned or frequently repeated. 
 
 Hancock, 85 Cal. 219; Crandall vs. Last Chance Water Ditch Co. vs. 
 
 Woods, 8 Cal. 136; Pomeroy on Heilbron, 86 Cal. i; 26 Pac. Rep. 
 
 Riparian Rights, Section 137; 523.
 
 §295] RIGHTS IN THE ARID R KG ION. 473 
 
 sion for the statutory period with proof of an adverse claim 
 against the proprietor, as without proof of adverse claim his 
 plea will not avail. ^ If any taxes have been assessed against 
 the water-right in order to sustain a plea of the statute pay- 
 ment by the appropriator must be shown.- And in order to 
 establish a right by prescription the acts by which it sought 
 to establish it must operate as an invasion of the right of the 
 party against whom it is set up, and the enjoyment relied 
 upon must aflford ground for an action by the proprietor 
 against whom the right is sought.-^ If il is doubtful whether 
 the use was adverse, known to the owner and interrupted, the 
 claim of prescription cannot avail."* 
 
 By this means any private riparian proprietor upon a 
 stream may obtain against all other riparian proprietors upon 
 the same stream special rights to use the water for other and 
 greater than those which the law confers upon him, simply as 
 such riparian proprietor. And an appropriator of the waters 
 of a certain stream may obtain by grant from the riparian 
 proprietors upon the stream or by prescription against 
 them the exclusive right to any portion of the waters of the 
 stream for the purpose of irrigation or for any other beneficial 
 use; and if by prescription, by remaining in peaceable, 
 notorious and adverse possession for the period required by 
 the statute as against the rights of all riparian proprietors, 
 the appropriator's claim will ripen into a lawful right, even to 
 the extent of consuming the entire water of the stream.'' 
 
 1 Greer vs. Tripp, 56 Cal. 209; Anaheim Water Cu. vs. Senii- 
 Osborne vs. Clark, 60 Cal. 622; Tropic Water Co., 64 Cal. 1S5; 
 Sheils vs. Haley, 61 Cal. 167; Cox hakesidc Ditch Co. vs. Crane, 80 
 vs. Clough, 70 Cal. 345; Harris vs. Cal. iSi; Union M. & M. Co. vs. 
 Merritt, 63 Cal. 119; Union Water Ferris, 2 Saw. 176; Grishy vs. 
 Co. vs. Crary, 25 Cal. 504; Anieri- Clear Lake W. Co., 40 Cal. 396; 
 can Co. vs. Bradford, 27 Cal. 360 Dick vs. Rird, 14 Nev. 161; Dick 
 
 2 Ross vs. Evans, 65 Cal. 440; v.s. Caldwell, 14 Nev. 167. 
 McNoble vs Justiniano, 70 Cal. » American Co. vs. Bradford. 27 
 395; Heilhron vs. Last Chance W. Cal. 361. 
 
 Co., 75 Cal. 117; Lux vs. Ha^Kin, 8 An adverse, exclusive ami unin- 
 
 69 Cal. 390, 451; St. Helena W. Co. terrupteil use and enjoyiiunt by 
 
 vs. Forbes, 62 Cal. 1S2. one person, and those under 
 
 3 Cox vs. Clough, 70 Cal. 345; whom he claims of all the water
 
 474 RIGHTS IN THE ARID REGION. , [§ 296 
 
 § 290. Same — Authorities Bisciisseil. — Upon this import- 
 ant subject the Supreme Court of California in a recent case, 
 The Alta lyaud & Water Co. vs. Hancock,^ said: " Nor is 
 it necessary in this case to discuss the character or extent of 
 the right of Hancock, or his grantees, to the use of the waters 
 of the creek by virtue of his riparian proprietorship. That 
 they had some right in the flow and to the use of said waters, 
 as such riparian proprietors, is conceded on both sides. To 
 the extent that it existed it was an appurtenance to the land, 
 running with it as a corporeal hereditament. It was one 
 which might be segregated by grant or by condemnation, or 
 extinguished by prescription, but could not be defeated by 
 simple appropriation. The term 'appropriation,' as applied to 
 the acquirement of the right to the use of water, has in this 
 State a statutory technical meaning, and the simple act of ap- 
 propriation under the statute will not of itself defeat or ex- 
 tinguish any prior right Actual and uninterrupted user, 
 however, with or without the statutory appropriation, if ad- 
 verse, for a useful purpose, and under a claim of right, con- 
 tinued fur the period prescribed for the statute of limitation 
 gives a prescriptive right which will extinguish the rights of 
 the riparian proprietor. Statutory appropriation, therefore, 
 is not necessary to prescription, but it gives to one who seeks 
 to acquire right by prescription this advantage, that it gives 
 to prior claimants notice that his use is adverse and under a 
 claim of right, and sets the statute in motion against such 
 
 of a creek, taken therefrom by granted by the owner in the land 
 
 means of a ditch and conveyed to of which he reserved the right to 
 
 certain mining grounds for niiu- use the water a part of the year 
 
 ing purposes for twelve years, or for his own purposes, such ad- 
 
 for any period beyond that for the verse use by grantees from the 
 
 statute of limitation prescribing original appropriator cannot be 
 
 the time in which entry shall be established unless it is shown that 
 
 made upon real property, will bar the use of the water by them has 
 
 the owner of the land through been in hostility to the use of it 
 
 which the creek runs of his ri- by the owner of the land under 
 
 pariau rights; but where the ditch such reservation. Huston vs. 
 
 was constructed, by means of Bybee, 17 Oreg, 140; 2 L. R. A. 
 
 which the water was originally 568; 20 Pac. Rep. 51. 
 
 appropriated under a license 1 85 Cal. 219; 24 Pac. Rep. 645.
 
 §296] RIGHTS IN TIIK AIlll) liliUION. 475 
 
 prior claimant. * * * 'pjii^^ right becomes fixed only after 
 five years' adverse enjoyment. And to have been adverse it 
 must have been asserted under claim of title with the know- 
 ledge and acquiescence of the person having the prior right 
 and must have been uninterrupted. In order to constitute a 
 right by prescription 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 adverse possession; the possession must be by 
 actual occupation, open, notorious, 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."' 
 And upon the subject of uninterrupted use necessary in 
 order to acquire a title by prescription the Court, continuing, 
 saj'S: " Nor was the use 'uninterrupted' for the period of 
 five years. The Court has apparently ex indiistria refrained 
 from the use of that word in the findings. And yet the use 
 must be not only adverse, under claim of right, open and no- 
 torious, but it must be 'uninterrupted' for a period of five 
 years to ripen into a right by prescription. The Court has 
 found that the use was 'continuously' from 1S76 to 18S7, but 
 not that it was 'uninterruptedly.' Counsel insists that the 
 words are synonymous, that the one means the same as the 
 other. They are very nearly, but not in the law exactly, 
 synonymous. This case furnishes a fair illustration of the 
 distinction between them. Burton and Stones used this ap- 
 purtenant to the land 'continuously' for the period of eleven 
 years. They used the land itself and this appurtenant to it 
 on the land during the whole of the same period 'continuously.' 
 The use of the land was unquestionably adverse to the claim 
 and right of Hancock, and yet its continuous use for the period 
 of eleven years did not give to those using it a right to the land 
 by prescription, though the rule of law as to the acquiring 
 
 1 Citing Crandall v.s. Woods, 8 27 Cal. 360; Aiialicini Witter Co. 
 
 Cal. 136"; Union Water Co. vs. vs. Si-nii-Tropic Watt-r Co., (4 
 
 Crary, 25 Cal. 504; 85 Am. Dec. Cal. 185; Thomas vs. IjiKland. ?! 
 
 145; American Co. vs. Bradford, Cal. 458.
 
 476 RIGHTS IN THE ARID REGION, [§ 296 
 
 right to land and right to water by prescription is the same. 
 Then why did it not give the right ? Because, just before the 
 expiration of the five years the use was ' interrupted ' by the 
 bringing of the action in ejectment, and this interruption, 
 though it did not break the continuity of use until final judg- 
 ment and writ of possession, six years afterwards, stopped the 
 running of the statute, and no right could be acquired by use 
 after that during the pendancy of that suit. As this in law 
 so interrupted the use of the land as to prevent the acquiring 
 of a prescriptive right to the land itself, so it also, and by the 
 same act, so interrupted the use of every appurtenant to the 
 land which was being used on it as to prevent the acquiring a 
 prescriptive right to that appurtenant, to use it there or else- 
 where. That recovery of the land in ejectment' carried with 
 it the recovery of every appurtenant thereto," 
 
 We have quoted at length from the above opinion because 
 it would be difiicult to find a case where the facts involved 
 would require the application of so many of the principles 
 necessary to sustain a plea of prescription.' 
 
 1 The users of the water in the ties showed that the intention was 
 
 case of a plea of prescription must that one-half of the water was 
 
 show that their use of it was in leased, and that such half was to 
 
 defiance of any right upon the be arrived at by the use of the 
 
 part of the owners to use it for whole stream for half the time; 
 
 any purpose, and that they totally that such use of the whole stream 
 
 ignored his right to use it at all, was under the lease, and not ad- 
 
 and that he acquiesced therein. versely to the lessor; and that the 
 
 Huston vs. Bybee, 17 Ore. 140; 2 lessee could not base a claim to 
 
 L. R. A. 568; 20 Pac. Rep. 51. In half the stream upon such use." 
 
 the case of Aneto vs. Restano, 78 Boynton vs. Longley, 19 Nev. 69; 
 
 Cal. 374, where a lease by a party 6 Pac. Rep. 487. See also Last 
 
 was of "one half of the water Chance Ditch Co. vs. Heilbron, 86 
 
 flowing in his ditch every alter- Cal. i; 26 Pac. Rep. 523; Heilbron 
 
 nate day from twelve o'clock vs. Kings R., etc., Co., 76 Cal. ir; 
 
 noon to twelve o'clock noon of 17 Pac. Rep. 933. 
 
 the next day," and the parties Spragur vs. Heard, 90 Cal. 221; 
 
 thereafter each used the whole 77 Pac. Rep. 198, where the Court 
 
 stream on alternate days, the Su- held that findings that the gran- 
 
 preme Court of California held: tor of the plaintiff appropriated 
 
 " That the circumstances and the and used a specified amount of the 
 
 practical construction of the par- waters of a stream by means of a
 
 $297] 
 
 RIGHTS IN THE ARID KEtilON. 
 
 477 
 
 § 297. Prescription as Ai,Miiisl Anv Oilier Kidit.— It 
 
 makes no diflference as to how the right to water was origin- 
 ally acquired, or in what capacity it was originally held. 
 Rights to all or a part of the water may be acquired by 
 prescription. Hence it follows that a right acquired by 
 prescription may be lost by prescription.' It is also important 
 to note in this connection that a water-course though artificial 
 may have been so long used as to become a natural water- 
 course prescriptively.- When an artificial water-course is 
 made solely for drainage, from mines or otherwise, the flow of 
 the water through that channel is from the nature of the case 
 of temporary character, having its continuance while the drain- 
 age is necessary, and a user of the waters b}' others during 
 the statutory period necessary to acquire a title by prescrip- 
 tion or for a longer period affords no prescription of a grant of 
 
 ditch for the purpose of irrigating 
 his lands with the ditch and water 
 light, and that for six years next 
 s ucceeding said appropriation 
 said water was used hy the plain- 
 tiff and her grantor, and such use 
 was, with the full knowledge of 
 "lefendants' grantors, continuous, 
 uninterrupted, peaceable, open 
 and notorious, under a claim of 
 right adverse and in hostility to 
 all, and particularly to the defen- 
 dants and their grantors, sufl'i- 
 ciently show a prescriptive right 
 to divert the water as against the 
 defendants and their grantors, 
 and it isinnnaterial how long they 
 may have been riparian owners of 
 the fee. 
 
 Chauvet vs. Hill, 93 Cal. 407; 
 20 Pac. Rep. 1066; Ball vs. Kehl, 
 95 Cal. 606; 30 Pac. Rep. 7S0. 
 
 1 Bowers vs. Kill, i Bing. N. C. 
 549; Johnson vs. Hide, 33 N. J. 
 Rq. 643; Curtis vs. Jackson, 13 
 Mass. 507; Hurd vs. Curtis, 7 Met. 
 94; Williams vs. Nelson, 23 Pick. 
 
 141; Day vs. Waklen, 46 Mich. 575; 
 Corning vs. Gould, 16 Wend. 531; 
 Warren vs. Syme, 7 W. V. 474; 
 Dyer vs. Dupui, 5 Whart. 584; 
 Bowen vs. Team, 6 Rich. (S. C.) 
 
 2 Green vs. Carrolta, 72 Cal. 2(34; 
 Sutcliffe vs. Bothe, 32 h. J. Q. B. 
 136; Ivimey vs. Stacker, L. R. i 
 Ch. 396, 409; Nuttal vs. Brace- 
 well, h. R. 2 Ex. i; Miner vs. Gil- 
 mour, 12 Moo. P. C. 131; Van 
 Breda vs. Silberbauer, L. R. 3 P. 
 C. S4; French Iloek Com. vs. 
 Hugo, 10 App. Cas. 336; P'reeniaii 
 vs. Weeks, 45 Mich. 335; Murihii- 
 vs. (iates, 78 Maine, 30; Seibert 
 vs. I.evan, 8 Penn. St. 383; Read- 
 ing vs. Althouse, 93 Penn. St. 400; 
 Roberts vs. Richards, 44 L. T. N. 
 S. 271; 50 L.J. Ch. 297; 51 Id. 944; 
 .\ilnms vs. Manning, 48 Conn. 477; 
 51 Conn. 5; Peter vs. Caswell, 38 
 Ohio St. 518; Wenllurby vs. 
 Micklejohn, 56 Wis. 73; I'owel vs. 
 Butler, 5 Ir. C. I.. 3<k> (C. P.).
 
 478 RIGHTS IN THE ARID REiJION. [§297,298 
 
 any right to the water in perpetuity.^ But while no right can 
 thus be acquired by prescription against the originator of an 
 artificial stream of a temporary character, yet so long as he 
 continues to use the canal for the purpose of drainage a 
 prescriptive right to the water may be acquired against those 
 through whose land the canal runs.^ So also the right to the 
 use of water flowing through an aqueduct or pipes for domes- 
 tic purposes may be acquired by prescription. "^ 
 
 IT. Nature and Extent of Rights Acqiiireil in Subterranean 
 Waters in the Arid West. 
 
 § 21)8. Subterranean Water-Courses — Percohiting Wa- 
 ters. — In a previous chapter we touched upon the subject of 
 subterranean and underground water-courses and percolating 
 waters,'* so far as was necessary to define the jiature of those 
 waters. We will now discuss the nature and extent of rights 
 that may be acquired in and to those waters in the western 
 States and Territories. The general rule may be stated thus: 
 Where subterranean waters are running in a defined channel 
 no distinction exists between waters so running under the 
 surface or upon the surface of the earth. They are such 
 property or incidents to property as may be acquired by grant, 
 express or implied, or by appropriation, and when rights in 
 them are thus acquired the owner cannot be divested of his 
 rights by the wrongful acts of another.^ But, on the other 
 hand, waters merely percolating through the soil, without a 
 defined channel, are not governed by the same laws that sur- 
 face streams are. Water percolating through the soil belongs 
 to the owners of the freehold where it is found.'' 
 
 1 Arkwright vs. Gell, 5 M. & W. Brown vs. Ashley, 16 Nev. 317, 
 203; Gaved vs. Martyn, 19 C. B. •where it was held that rights in 
 732. water coming from a spring by 
 
 2 Ibid. Greatrex vs. Haj-ward, percolation are acquirable by prior 
 8 Exch. 291. appropriation, and the appropria- 
 
 SDority vs. Dunning, 78 Me. tor cannot be divested by a subse- 
 
 381. quent owner of the soil by express 
 
 4 See Ante Sections 48, 49, 79, So. grant. 
 
 5 Cross vs. Kitts, 69 Cal; 221; 10 <> Cross vs. Kitts, 69 Cal. 222; 10 
 Pac. Rep. 409. Pac. Rep. 409; Hanson vs. McCue,
 
 §298,299] RIGHTS IN THE ARID REGION. 470 
 
 In a recent case in California^ the Court held that where a 
 spring is fed solely by percolating waters which seep into it 
 from swamp or wet land surrounding the same, and not by 
 any running stream of water, there is no water at such spring 
 to which the right of use can be acquired either by statutory 
 appropriation or by adverse user. And no action will lie in 
 favor of one who has collected the water at the spring in a 
 reservoir and transmitted it by a pipe for use against one who 
 has diverted the water from the reservoir by means of a tunnel 
 and ditch constructed above the reservoir on his own land for 
 irrigation and domestic use. 
 
 The law controlling the rights to subterranean waters not 
 running through a channel or defined course is very different 
 from that affecting the rights of surface streams. In former 
 cases the water belongs to the soil, is part of it, is owned and 
 possessed as the earth is, and may be used, removed and con- 
 trolled to the same extent by the owner, and no action will 
 lie for injuries caused by cutting it off.- 
 
 § 20U. Same. — Authorities DiscusscMl. — In a recent case de- 
 cided in the Colorado Court of Appeals^ the Court held that 
 if water reaches a certain point by either percolating its way 
 through the soil or by subterranean channels, and at that 
 point is duly appropriated, the appropriator has. property in 
 it of which he cannot be divested by the owners of the soil 
 through which the water courses. 
 
 In that case the trial court instructed the jury as follows: 
 "The water that percolates through the soil without an evi- 
 dent and well-known channel is regarded as a part of the land, 
 and belongs to the owner thereof, and he may make sucli use 
 
 42 Cal. 303; Roath vs. Driscoll, 20 that the water necessary pcrco- 
 
 Conn. 540; Ballard vs. Tonilinson, lates therein, thereby diminishing 
 
 24 Am. Law. Reg. 636; RIosier v.s. the water previously appropriated 
 
 Caldwell, 7 Nev. 3S3; 64 .Xni. Dec. by other parties. McClelleii vs. 
 
 727. Hurdle (Colo. App.), 33 Tac. Rep. 
 
 1 Southern P.ic. Ry. Co. vs. Dn- 280. 
 
 foor, 95 Cal. 615; 3 Pac. Rep. 783. 3McClcllnu vs. Hurdle (Colo. Ct. 
 
 2A personis not justified in dig- of Ap.); 33 I'ac. Rep. 2^0. 
 ging wells so close to a stream
 
 480 RIGHTS IN THE ARID REGION. [§ 299 
 
 of the water as he sees fit while it remains on, in or under his 
 land." Mr. Justice Reed, in rendering the opinion of the 
 Court of Appeals commenting upon the instruction, said: " It 
 is perfectly safe to say that it is a matter of no moment 
 whether water reaches a certain point by percolation through 
 the soil, by a subterranean channel or by an obvious surface 
 channel. If by any of those natural methods it reaches the 
 point and is there appropriated in accordance with law the 
 appropriator has a property in it which cannot be divested by 
 the wrongful diversion by another, nor can there be any sub- 
 stantial diminution. To hold otherwise would be to concede 
 superior owners of land the right to all sources of supply 
 that go to create a stream, regardless of the rights of those 
 who previously acquired the right to the use of the waters 
 from the stream below. Strictly and technically the instruc- 
 tion should not have been given. * * * Streams of the 
 character described in the complaint are frequent throughout 
 the entire arid portion of the continent, and their existence 
 and peculiarities cannot be ignored, being well defined surface 
 streams with well defined channels for long distances, then 
 for miles sunken until uniting with another stream, but having 
 topographically all the physical characteristics of a stream — 
 a bed, banks, valley, etc., at times of high water, being its 
 entire length a running surface stream, and in low water or 
 droughts running short distances, standing in pools, sinking 
 into gravel or loose material in its bed, percolating through 
 or passing under it, and reappearing at some point below, but 
 still delivering at different points a greater or less volume of 
 water — sometimes at the surface, sometimes much below. It 
 is not necessary to legally define water-courses having these 
 peculiar characteristics. They are, as conduits of water, such 
 source of supply as to furnish an appropriator a legal basis for 
 the appropriation of the available water. In the case of a 
 running surface stream the question of appropriation is easy 
 of solution; but not so in a sunken stream, particularly at a 
 point where the water is an indefinite distance below the 
 surface. Under such circumstances it becomes at once appar- 
 ent that to appropriate and utilize the waters an 'impervious 
 dam must be constructed and carried down to an impervious
 
 §299J RIGHTS IN Till-: AUID HKUION. 481 
 
 base to stop and retain the subterranean water and raise it to 
 the ditch. Whenever such adequate provision is made any 
 act diminishing the quantity that would naturally reach the 
 dam and add to the supply up to the limit of the appropria- 
 tion — whether by diversion upon the surface, the sinking of 
 wells and using pumps or otherwise, would be actionable." 
 
 It seems to us that the above rule is the correct theory upon 
 the subject. 
 
 Upon the subject of riparian rights on subterranean streams 
 see the case of Meyer vs. Tacoma Light cV Water Co. decided 
 by the Supreme Court of Washington on January 26, 1894. In 
 this case the Court held that where the waters of a stream 
 gradually disappear and percolate through the sand, within 
 limits not at all defined except by the valley in which the 
 stream is located, over an impervious substratum, thus find- 
 ing their way to a lake, a riparian owner on an outlet to the 
 lake has no right to have such underground flow protected.^ 
 
 1 35 Pac. Rep. 601.
 
 CHAPTER X. 
 Ditch and Canal Companies. 
 
 Section. — 
 
 300. Coiit.ents of chapter. 
 
 I. UNINCORPORATED DITCH AND 
 
 CANAL COMPANIES. 
 
 301. Tenants in common. 
 
 302. Tenants in common an'l co- 
 
 p irtiiership distinguished. 
 
 303. Authorities on subject. 
 
 304. Unincorporated ditch com- 
 
 panies — rights of majority 
 in interest. 
 
 305. Authority of individual mem- 
 
 bers of unincorporated ditch 
 companies. 
 
 306. Liabilities and rights of indi- 
 
 vidual members of unincor- 
 porated ditch compaides. 
 
 II. PRIVATE INCORPORATED 
 DITCH AND CANAl, COMPANIES. 
 
 307. Incorporated ditch and canal 
 
 companies. 
 
 308. Irrigation companies in gene- 
 
 ral. 
 
 III. POWERS OF DITCH AND CANAL 
 
 COMPANIES. 
 
 309. Power of acquiring rights of 
 
 way. 
 
 Section.— 
 
 310. Power of acquiring water 
 
 rights by appropriation. 
 
 311. Same. — Authorities. 
 
 312. Same. — Power of acquiring 
 
 water-rights by legislative 
 grants. 
 
 313. Same. — Continued. 
 
 IV. DUTIES OF DITCH AND CANAL 
 COMPANIES. 
 
 314. Construction of works by 
 
 ditch companies. 
 3x5. Same. — .\uthorities dis- 
 cussed. 
 
 316. Same. — Duty as common car- 
 
 riers. 
 
 317. Duty of ditch company to 
 
 furnish water to consumers. 
 
 V. LIABILITY OF DITCH AND 
 CANAL COMPANIES. 
 
 318. Liability of companies in 
 
 general. 
 
 319. Company's liabilities for in- 
 
 juries to stockholdeis rights. 
 
 § 33t). Contents of Chapter.— Daring the past few years 
 the growth and importance of irrigation are evidenced by the 
 vast number of ditch and canal companies organised in all 
 the States and Territories in the arid west. These coaipanies
 
 §300,301] DITCH AND CAXAL COMPANIES, 483 
 
 are of two classes, unincorporated companies and incorporated 
 companies. Their organization and miinagcment are controlled 
 by the statutes of each State wherein they are organized. 
 This subject will be discussed more thoroughly in a subse- 
 quent part of this volume. However, there are certain rules, 
 principally based upon Court decisions, common to all, and 
 we will devote this chapter to a discussion of those rules. 
 First we will take up the subject of unincorporated ditch or 
 canal companies; second, incorporated dimpanies; and third, 
 the general rules governing those companies, including their 
 general powers, rights and liabilities. 
 
 I. Unincorporalei Ditcli and Canal Conipanioi. 
 
 § 31)1. Tenants in Common.— Where a ditch through 
 which water is diverted and applied to any beneficial purpose 
 is owned by several proprietors, and th^ir relation is not defined 
 by special agreement to ths contrary, th:^y are to b^ regarded 
 as tenants in common of the ditch, and their rights are deter- 
 mined and governed by the rulesof law regulating tenancy in 
 common.^ As tenants in common each one has the right to 
 enter upon and occupy the whole of the common property to 
 maintain an action against any co-tenant to recover his share 
 of the rents and profits.^ And where different persons separ- 
 ately appropriate the waters of a stream and arc severally 
 using the same under certain regulations as to the time and 
 manner of such use they are tenants in common, and each of 
 them may maintain an action to enjoin a trespasser from di- 
 verting any portion of the water thus appropriated. Upon 
 this last proposition the Supreme Court of California, in the 
 
 1 Bradley vs. Ilarkiicss, 26 Cal. cral and distinct titles, niul not by 
 69; Jones vs. Parsons, 25 Cal. 100; joint tiik-s, hnt occnpy in coni- 
 Kced V:?. Spicer, 27 Cal. 63; Car- ninn. The only niiity rcco;jni/c»l 
 penler vs. Webster, 27 Cal. 524; between iheni bciuK tlial of posses- 
 Park VS. Kilhani, 8 Cal. 77; Dnr- sion. 
 
 yea vs. Burt, 28 Cal. 587; Decker Bonvier's Law Dictionary; 2 
 
 vs. Howell, 42 Cal. 642; RIcCon- Bla. Com. I91. 
 
 nell vs. Denver, 35 C.d. 369. -'Ibid. Abel vs. l.uve. 17 C.il. 
 
 Tenants in conmion arc snch ns 233. 
 lialJ la:idi and icnenicnlH by sev-
 
 484 DITCH AND CANAL COMPANIES. [§ 301 
 
 case of lyytle Creek Water Co. vs. Perdew,^ said: " The de- 
 fendant just mentioned was a trespasser, using the waters of 
 the creek without an}^ right whatsoever. Why a lawful ap- 
 propriator should not be entitled to an injunction against a 
 trespasser we cannot perceive. It is said that the waters are 
 appropriated severally by those who did appropriate them. 
 Concede this to be so and we do not perceive that it makes 
 any difference. If they are tenants in common of the water, 
 such tenants and each of them are tenants seized /><?r tny ^and 
 not per /<?«/and entitled to the possession of the whole. This 
 must be so, because no one of them can certainly state which 
 part of them is his own. They hold by unity of possession, 
 though their titles be distinct. If this unity be destroyed 
 the tenancy no longer exists. * * * • ^ person without 
 title and wrongfully in the possession cannot gainsay the 
 right of each of the tenants in common to the possession of 
 the whole. As between tenants in common and a trespasser 
 each tenant in common is better entitled to the possession 
 than a wrong doer' (Per Crockett, J., 43 Cal. 71.) He can 
 maintain an action against a trespasser and recover possession 
 of the whole estate held in common. This being so it follows 
 that he can take steps to protect the whole. It would be an 
 anomaly in the law if such tenant could recover the whole 
 property from a wrong doer and could not alone intervene to 
 protect it from nuisances and trespassers which can be re- 
 dressed by the preventive process of injunction. 
 
 "Whether joint appropriators holding the estate as joint 
 tenants or tenants in common the same is the result. Each 
 can recover the whole or take the necessary steps to protect 
 the whole against the acts of a wrong doer." ^ 
 
 One tenant in common can also enjoin a threatened in- 
 jury.^ As co-tenants they are entitled to use all the waters, 
 and when an outsider diverts from them or one of them he is 
 injuring all and each of them. He may be doing more injury 
 to the one who is entitled to use it at the time he is diverting 
 
 1 65 Cal. 452; 2 Pac. Rep. 732. ^^ Van Winkle vs. Curtis, 2 Green 
 
 3 2 Bla. Com. 191, 192; Carpenter Cli. 422. 
 vs. Webster, 27 Cal. 524; Williams 
 vs. Sutton, 43 Cal. 71.
 
 § 301] 
 
 DITOH AND CANAL OOMTAXIES. 
 
 iSl 
 
 it, but he is at all times when diverting the water guilty of 
 trespass on the rights of each and every one of the co-tenants, 
 and each of them has a right to have the preventive powers 
 of a Court of justice to put a stop to his illegal acts without 
 joining in the suit the other co-tenants as plaintiflTs.' 
 
 In quite a recent case in California ^ the Court held that a 
 Court of equity has power to ascertain and determine as 
 between several appropriators of a natural stream the extent 
 of the respective rightri of each to the waters therein flowing, 
 to regulate the use thereof in such a way as to maintain 
 equality of rights in the enjoyment of the common property, 
 and to enjoin a subsequent appropriator from interfering with 
 the rights of the prior appropriators as ascertained and estab- 
 lished by the Court. Hence it follows that where one of two 
 or more co-owners in the use of water of a stream appropri- 
 ated by them for beneficial purposes diverts for use a greater 
 quantity of water than of right belongs to him and so as to 
 materially diminish the quantity to which the others are en- 
 titled, such parties are entitled to enjoin the wrong-doer from 
 so diverting the water to their injury.-* 
 
 iLyttle Creek Water Co. vs. Per- 
 (lew, 65 Cal. 447; 2 Pac. Rep. 732. 
 
 A tenancy in common in a water 
 ditch arising under a deed is not 
 severed by claiming under a 
 promise or parol license from a 
 third person, where the deed and 
 promise appear to be part of the 
 tran.saction. Campbell vs. Sivers, 
 
 I Ariz. 161; 25 Pac. Rep. 540. 
 SFrey vs. Lowden, 70 Cal. 550; 
 
 II Pac. Rep. 838. 
 
 3 Lorenzvs.Jacobs,3Pac.RL'p.654. 
 Also see Combs vs. Slaytoii, 19 
 Ore. 99; 26 Pac. Rep. 661, where 
 the Court held that an agreement 
 between parlies who have settled 
 upon lands in the vicinity of a 
 stream of waler capable of being 
 utilized for the purposi-s of irriga- 
 tion as to the:ii)proi)riation of the 
 water for sucJi purpose, and as to 
 
 the relative quantity which each 
 one shall be entitled to use, where 
 such agreement has been acted 
 upon for a long time by the par- 
 ties, and a violation of it by any- 
 one of them would produce irre- 
 parable damage to others, will be 
 enforced in a Court of equity. 
 
 McGillivcry vs. Kvans, 27 Cal. 
 92; Meagher vs. Herdeiibrook, 11 
 Mont. 385; 28 Pac. Rep. 451. 
 
 Tlie same irrigating dilch may 
 have two or more piiorilics be- 
 longing to the same or diflerent 
 parlies, and two or Jiiore persons 
 may divert waler tlirougli tlie 
 same head-gate for the irrigation 
 of their respective farnis without 
 any surrender, joinder or merger 
 of their respective pri< silies. Nich- 
 ols vs. Mcintosh et nl (Colo), 34 
 Pac. Rep. 278.
 
 486 DITCH AND CANAL COMPANIES. [§ 302 
 
 § 332. Ta ingy in Coimnan ani Copirtiier^hip BJstin- 
 
 guislieil. — The relation of several proprietors as co-tenants in 
 a ditch have some of the incidents of a partnership. \ The 
 determination of the ri<^hts of the parties in any controversy 
 regarding interests in ditch property in the western States and 
 Territories depends upon the question whether the property 
 in question was held in the ordinary mode of holding ditches 
 and mining lands in the States as tenants in common, or held 
 as partnership property in the strict sense in which these terms 
 are used in relation to mercantile transactions. There is no 
 doubt but that ditches, mining claims and lands may be held 
 as partnership property as well as any other, and when so held 
 for the purpose of so changing the partnership obligations or 
 settling the partnership affairs that such property will be sub- 
 ject in equity to all the incidents of other partnership property. 
 The same can also be said respecting controversies us to the 
 rights of persons claiming rights in the waters of a stream 
 derived from the same original source; the waters may be 
 held as partnership property and the persons owning the same 
 are not necessarily tenants in common.^ The title to the water 
 rights may be held by parties as tenants in common, while 
 there may be some of the incidents of a partnership connected 
 therewith. As for example, there might be a tenancy in com- 
 mon respecting the ownership of the ditch itself, and a strict 
 partnership for the purpose of diverting the water and selling 
 it to others. The rule that applies to mining claims also 
 applies to ditch property. The titles to the claims may be 
 held by parties as tenants in common, while on the other hand 
 there may be a strict partnership for the purpose of working 
 the claims; or there may be a partnership both in the owner- 
 ship and in the working of the claims. Whether the rela- 
 tionship of the parties is one or the other, or neither, must 
 depend upon the facts in each particular case.^ 
 
 IGoodenow vs. Ewer, i6 Cal. Duyrea vs. Burt, 28 Cal. 568; Bis- 
 
 461; Jones vs. Parsons, 25 Cal. 100. sell vs. Foss, 114 U. S. 259; Hewitt 
 
 2 Lytle Creek W. Co. vs. Perdew, vs. Storey, 39 Fed. Rep. 719; Hen- 
 65 Cal. 447; 2 Pac. Rep. 732. derson vs. Nichols, 67 Cal. 152; 
 
 3 Bradley vs. Harkiies-^, 26 Cal. O'Connor vs. North Truckee Ditch 
 76; Jones vs. Parsons, 25 Cal. 104; Co., 17 Nev. 245.
 
 §303] DITCH AND CANAL COMPANIES. 487 
 
 § 3C3. Aulhorilios on Sulijt'ct.— I'lcii this -uljtct cf dis- 
 tinction between a tenancy in ccmnion and a co-partnership in 
 ditch property the decision of the Supreme Court of Cali- 
 fornia in the case of Bradley vs. Harkness* is cited as a lead- 
 ing case. The Court i^aid: " In the alsence of any special 
 facts constituting them scmething else the proprietors of 
 ditches in the mining districts are tenants in common of real 
 estate, and tlieir rights in the ditch and in the profits arising 
 from the sales of water, although in the latter case analogous 
 to those of co-partners, arc governed by the law of tenancy in 
 common. The ditch is real estate, and each proprittor biixsin 
 or sells out or incumbers Ins interest at pleasure, regardless of the 
 knowledge or consent or -dishes of his co proprietors, and with- 
 out aflfecting the legal relation existing between them beyond 
 the going out of one and the coming in of another. This can- 
 not be done where a co-partnership exists. One cannot buy 
 in or sell out of a partnership at pleasure. Such an act would 
 of itself work a dissolution of the partnership and necessitate 
 its final settlement and closing out. A tenancy in common 
 results from a rule of law by which it is also controlled and 
 governed. A partnership, on the contrary, is the result of 
 agreement between parties which also supplies rules for its 
 government. The former relation is undisturbed by a change 
 of tenants, but the latter admits of no change as to its mem- 
 bers; and where a change takes place by the consent and 
 agreement of all the parties concerned the old firm is thereby 
 dissolved and a new one created. Thus the incidents aiuiexed 
 to each have a different origin and are diverse. Also the pro- 
 ceedings for a dissolution of these relations are different and 
 are grounded upon entirely different facts. As to the first, 
 the mere desire of one of the tenants is sufficient to set the 
 courts in motion; but as to the latter, cause must be shown." * 
 
 1 26 Cal. 77. 477. where it was Iiel.I that the 
 
 2See also Duyrea vs. lUirt, 28 facts involved in the case did not 
 
 Cal. 587; Decker vs. Howell, 42 create a partnership between the 
 
 Cal. 462; Lytic Creek Water Co. plaintiff and Kelly, either in ihe 
 
 vs. Perdew, 65 Cal. 447; 2 Pac. <litch as a mere comlnit or in the 
 
 Rep. 732. water Jlowinj^ through it, sons to 
 
 See I'itzell vs. Leaky, 72 Cal. create a lien tliereon in favor of
 
 488 DITCH AND CANAL COMPANIES. [§303 
 
 The peculiarities of what is called a mining partnership — 
 the rules governing which are identical with those governing 
 interests in waters — are best set forth in the opinion of the 
 Supreme Court of the United States in the case of Kahn vs. 
 Central Smelting Co.^ Mr. Justice Field, in speaking for the 
 Court, said-: "The plaintiff avers that his association with 
 his co-tenants of the mine was a mining partnership, and 
 seeks to enforce his rights as a member of such partnership, 
 and to obtain such other and further relief as he may be 
 equitably entitled to. The opinion of the Judge before whom 
 the case was heard shows that he did not recognize the exist- 
 ence of any partnership in mines differing from ordinary part- 
 nership, and his finding that there was no partnership as 
 alleged between the plaintiff and the defendant necessarily 
 followed. * * * Mining partnerships as distinct associa- 
 tions, with different rights and liabilities attaching to their 
 members from those attaching to members of ordinary trading 
 partnerships, exist in all mining communities; indeed, without 
 them successful mining would be attended with difficulties 
 and embarrassments much greater than at present. 
 
 "In Skillman vs. Lachman - the question of the relation 
 existing between parties owning several interests in a mine 
 came before the Supreme Court of California, and that Court 
 said: 'Whatever may be the rights and liabilities of tenants 
 in common, not being worked, it is clear that where the 
 several owners unite and co-operate in working a mine then a 
 new relation exists between them, and to a certain extent 
 they are governed by the rules relating to partnerships. They 
 form what is termed a mining partnership, which is governed 
 by many of the rules relating to ordinary partnership, but also 
 to some rules peculiar to itself, one of which is that one per- 
 son may convey his interest in the mine and business with- 
 
 one of the partners advancing One partner in a water right ac- 
 
 niore than his proportion of the quired by appropriation cannot 
 
 capital; nor did it constitute them sell and convey the interest of his 
 
 tenants in common of the land co-partner. Henderson vs. Nich- 
 
 traversedby the ditch so as to pre- ols, 67 Cal. 152; 7 Pac. Rep. 412. 
 vent the plaintiff from filing a de- 1 102 U. S. 641. 
 
 claration of homestead thereon. 233 Cal. 203.
 
 §303] DITCH AND CANAL COMPANIES. 489 
 
 out dissolving the partnership.' The same doctrine is asserted 
 in numerous other cases, not only in that Court but in the 
 Courts of England. .\ssociations for working mines are 
 generally composed of a greater number of partners than or- 
 dinary trading partnerships; and it was early seen that the 
 continuous working of a mine, which is essential to its suc- 
 cessful development, would be impossible, or at least attended 
 with great difficulties, if an association was to be dissolved 
 by the death or bankruptcy of one of its membL-rs or the 
 assignment of his interests. A differeui rule from that which 
 governs the relations of members of a trading partnership to 
 each other was therefore recognized as applicable to the rela- 
 tions to each other of members of a mining association. The 
 delectus personae , which is essential to constitute an ordinary 
 partnership, has no place in these mining associations." * 
 
 Also in the later case of Bi.ssel vs. Foss- the same Court 
 affirmed the doctrine above set forth, and Mr. Justice Wood 
 in delivering the opinion of the Court after quoting at length 
 from the opinion of Mr. Justice Field in the case of Kahn vs. 
 Central Smelting Co.. above, added: " This case settles two 
 propositions: First, that the members of a mining associa- 
 tion have no right to object to the admission of a stranger 
 into the association who buys the share of one of the asso- 
 ciates; and second, that the sale and assignment by one of the 
 associates of his interest does not dissolve the mining partner- 
 ship. It follows from these propositions that one member of 
 a mining partnership has tlie right, without consulting his 
 associates, to sell his interest in the partnership to a stranger, 
 and that such a sale injures no right or property of the other 
 associates. Much less does a purchase of one associate of tlie 
 share of another inflict any wrong upon the other members of 
 a partnership. There is no relation of trust or confidence 
 between mining partners which is violated by the sale and 
 assignment of one partner to a stranger or to one of his a.sso- 
 
 1 Citing Duvrea vs. Burt, aS Cal. 58 Cal. 369; McConncll vs. ni-iivt-r. 
 
 569; vSettenibre vs. rutiKiin, 30 35 Cal. 369; liradli y vs. Harkiuss. 
 
 Cal. 490; Taylor vs. Castle, 42 Cal. 26 Cal. 77. 
 
 367; Montgomery vs. Harrington, -114 I'- ^- 2.S3-
 
 490 DITCH AND CANAL COMPANIES. [§ 303-305 
 
 ciates of his share in the property and business of the asso- 
 ciation." 
 
 § 3i)4. Unincorporated Bitch Companies— Kights of Ma- 
 jority in Intercut. — The parties constituting an unincorpor- 
 ated ditch or mining company in the arid region, from the 
 above authorities, may be the owners of its property as tenants 
 in common, and in the diversion and sale of the waters for 
 sale to others and profit, or in the working of their mine, may 
 be considered as partners.^ _ As the property can only be used 
 in entirety it is at times indispensable to the conduct of the 
 business that those owning the major portion of the property 
 should have power to control in case all cannot agree, other- 
 wise the work might become wholly discontinued or worked 
 to a disadvantage. As has been seen in the previous sections, 
 mining partnerships are not usually founded on the dclechis 
 personac, and hence it follows that the powers of the indi- 
 vidual members interested are much more limited than are 
 the powers of the individual members of a purely commercial 
 or trading partnership. There is no doubt but that it often 
 works great inconvenience and perhaps loss to the minority in 
 interest of a mining partnership if the majority is allowed to 
 do as they deem to their own advantage regardless of the 
 rights and interests of the minority. But notwithstanding the 
 danger of the abuse of power in such cases, what may be neces- 
 sary and proper for carrying on the business for the joint 
 benefit of all concerned must be determined by those holding 
 in the aggregate the major part of the property. And if the 
 powers which are thus attempted to be exercised are not 
 necessary and proper for the success of the enterprise those 
 whose interests are imperilled or disastrously afiected thereby 
 'have a right to resort to the Courts for redress. ^ 
 
 §305. Authority of Individual Memhers of Unincor- 
 porated Ditch Company.— Another peculiarity of an unin- 
 corporated ditch company is that a member of such a com- 
 pany has no general authority by virtue of such membership 
 
 dDuryea vs. Burt, 28 Cal. 569; 2 ibid. Abel vs. Love, 17 CaL 
 
 Dougherty vs. Creary, 30 Cal. 291. 233.
 
 §305] DITCH AND CANAL COMPANIES. I'Jl 
 
 to bind the company by his contracts. Neither has tlie super- 
 intendent or general manager of such a compatiy tlie authority 
 to bind the company by a promissory noteor any otlicr obliga- 
 tion for materials to be used by the company or for anything 
 else, unless the authority to give such note was expressly con- 
 ferred upon him by the company, or such authority may be 
 implied from his acts recognized by the company with full 
 knowledge of the acts at the time of the recognition.* 
 
 In the case of McConnell vs. Denver- the Court said: " Some 
 of the incidents of a partnership pertain l) them, and some of 
 mere tenancies in common, but the powers of the several mem- 
 bers by virtue of being members are different from those of 
 commercial partnerships. A member of one of these associa- 
 tions has no general authority by virtue of such membership 
 to bind the company by his contracts. Nor has the managing 
 agent any authority other than that conferred upon him, 
 either expressly or by necessary implication from his acts 
 recognized by the company with full knowledge of the acts 
 at the time of the recognition. (Skillman vs. Lachman, 
 supra.) The finding of the court evidently resulted from 
 overlooking this distinction between commercial partnerships 
 and associations of this character." 
 
 But, on the other hand, if a ditch company of this class 
 duly authorizes its superintendent to give the company notes 
 for materials before then purchased by the company all mem- 
 bers are bound by the notes whether they were such members 
 when the materials were purchased or not.^ 
 
 1 McConnell vs. Denver, 35 Cal. such, the pnrlncrship continued 
 
 365; Jones vs. Clark, 42 Cal. 194; ]ial)le, at least to tlieexlt-nt of the 
 
 Skillman vs. Lachman, 23 Cal. 19H; partnership assets, allhou^^h some 
 
 Bradley vs. Ilarkness, 26 Cal. 76; nienihers of ihe conijjany ha<l in 
 
 Setlenibre vs. Putnam, 30 Cal. the meantime pnited witli their 
 
 403. interests in the concern. The new 
 
 235 Cal. 370. mcmlers purchased with full 
 
 3McConnell vs. Denver, 35 Cal. knowledge of the indehledncss 
 
 365- 
 
 and of the note, and of couise 
 
 In Jones vs. Clark, 42 Cal. 194. took their interest subject to the 
 
 the Court said: " The note being payment of the jjartuerhhip debts. 
 
 established as a valid contract, Duryea vs. lUirl, 2S Cal. 569. 
 binding upon the pattnerhhip as
 
 492 DITCH AND CANAL COMPANIES. [§306,307 
 
 §300. Liability and Kights of Individual Members of 
 Unincorporated Ditch Companies. — A tenant in common of 
 a water ditch may maintain an action to recover his share of 
 the rents and profits of his co-tenant in possession and col- 
 lecting the same. Indeed, these operations may be regarded 
 as partnerships so far as this matter is concerned, the share- 
 holders being regarded as partners entitled to participate in 
 the profits derived from the business of carrying on a ditch or 
 sales of water, and may enforce their rights without necessar- 
 ily working a dissolution of the partnership. ^ If one of two 
 owners of a flume consents to and directs the opening of a 
 water ditch above the flume, by means whereof the water from 
 the ditch flows over and injures the flume, the other joint 
 owner cannot recover damages from him for such injury, on 
 the ground that the "act of one was the act of all."^ As 
 regards the rights of ditch owners it has been held that the 
 failure of one partner in a ditch to pay his share or proportion 
 of the expenses of the concern does not forfeit his right in 
 the common property.^ 
 
 II. Private Incorporated Ditch and Canal Companies. 
 §307. Incorporated Ditch and Canal Companies. — As 
 
 private corporations exist only and by virtue of the laws of 
 the States and Territories under which they are organized, 
 the statutes of those States must be followed in their organiza- 
 tion. In most of the States and Territories of the arid west 
 there are special statutes governing the organization and con- 
 trol of ditch and canal companies for the purpose of conduct- 
 ing water for irrigation.* These statutes also regulate and 
 control these corporations respecting their powers of securing 
 water rights, the protection of these rights and the duties of the 
 corporations and their liabilities. Among the powers granted 
 
 iMcConnell vs. Denver, 35 Cal. vs. Oakland Q. M. Co., 64 Cal 146. 
 
 369; Skillman vs. Lachman, 23 Cal 2 Crary vs. Campbell, 24 Cal. 634. 
 
 203; Bradley vs. Harkness, 26 Cal. 3 Kimball vs. Gearhart, 12 Cal. 
 
 69; Duryea vs. Burt, 28 Cal. 577; 28. 
 
 Settembre vs. Putnam, 30 Cal. 490; 4 See Part Second for Statutory 
 
 Jones vs. Clark, 42 Cal. 180; Decker Enactments on subject, 
 vs. Howell, 42 Cal. 636; McCord
 
 §307-309] DITCH AND CANAL COMPANIES. 403 
 
 to these corporations is the right of eminent doraam mi ac- 
 quiring rights of way necessary for their ditches and canals. 
 These rights may be acquired by condemnation proceedings, 
 and are universal in all the States or Territories of the 
 west. Another important right conferred by some of the 
 States is that of acquiring the existing rights to water' by 
 condemnation proceedings. 
 
 The statutes protect the properly of the canal or ditch com- 
 panies by providing severe penalties for injuries to or destruc- 
 tion of it. Most of these statutes also provide a maximum 
 price which may be charged for the water when sold to con- 
 sumers. And the companies are made liable for all damages 
 that may be caused by their negligence. These subjects, how- 
 ever, will be more fully discussed in a subsequent portion of 
 this work.- 
 
 § 308. Irrigation ( oinimnies in (iencral.-- Whether 
 ditches, canals, reservoirs or other works, or the water-rights 
 appurtenant thereto, are owned and controlled by persons as 
 partners; or whether they are owned and controlled by per- 
 sons associated together as tenants in common in an unincor- 
 porated company and managing the ditch property under one 
 control; or owned by a single individual; or again whether the 
 property is owned by persons associated together as private 
 incorporated companies, the amount each one owns in the 
 company being represented by the shares of stock issued 
 to him, there are certain general powers, duties and liabili- 
 ties of the canal or ditch companies which arc common in all 
 the States and Territories of the arid region. We will take 
 these subjects up in their order. 
 
 III. Powers of Ditrh and (anal <'onipanies. 
 
 § 309. Power of AcMjuiriny; Itights of Way.— The Act of 
 Congre.ss of July 26, 1S66, provided that: "The ri.^ht of 
 
 1 See Part vSecoiul. tiou treat the sale as invalid and 
 
 2 Wliere a corporation sold soiiu: reinstate the stockholder .>>o as to 
 of its stock for a non-payment of render him liahle for the ns.sess- 
 assessments and hid the same in, jnent. (Colo. Ap]).) Tallerson elal. 
 in which the stockholder nc- vs. llrown \' Campion, .^4 I'ac. 
 quicsced, it cannot on its own mo Rep. 76c).
 
 494 DITCH AND CANAL COMPANIES. [§ 309 
 
 way for the construction of ditches and canals for the purposes 
 herein specified is acknowledged and confirmed."^ By the 
 Act of July 9, 1870, Congress further provided that " all pat- 
 ents granted shall be subject to any vested and accrued right 
 or rights to ditches and reservoirs and in connection with 
 such water rights as may have been acquired." ^ By the Act 
 of Congress of March 3, 1891, Congress further provided: 
 " That the right of way through the public lands and reserva- 
 tions of the United States is hereby granted to any canal or 
 ditch company formed for the purpose of irrigation and duly 
 organized under the laws of any of the States or Territories 
 * * * to the extent of the ground occupied by the waters 
 of the reservoirs and of the canal and its laterals, and fifty 
 feet on each side of the marginal limits thereof." Then fol- 
 lows specific rules for filing plats of the surveys and approval 
 of same by the Secretary of the Interior, and the first part of 
 section 20 of the Act provides that " the provisions of tliis 
 Act shall apply to all canals, ditches or reservoirs heretofore 
 or hereafter constructed, whether constructed by corporations, 
 individuals or associations of individuals, on filing the certi- 
 ficates and maps herein provided for. If such ditch, canal or 
 reservoir has been or shall be constructed by an individual or 
 association of individuals it shall be sufficient for such indi- 
 vidual or association of individuals to file with the Secretary 
 of the Interior and with the register of the land office where 
 said land is located a map of the line of such canal, ditch or 
 reservoir as in case of a corporation, with the name of the 
 individual owner or owners thereof, together with the articles 
 of association, if any there be." ^ 
 
 1 Revised Statutes of the TTnited lions concernin.ij right of way for 
 States, 2339; see Ante Section canals, ditches and reservoirs for 
 11^. the purpose of irrigation over the 
 
 2 See Revised Stat. U. S. 2340; public lands and reservations has 
 Ante Section 116. the following provisions: 
 
 3 See Ante Section 119, Supp. i. "This Act is evidently de- 
 Rev. St. U. S. 1891, p. 946, Sees. signed to encourage the niuch- 
 18, 19. 20, 2r. needed work of constructing 
 
 The circular of the General ditches, canals and reservoirs in 
 Laud Office, approved February the arid portion of the country by 
 20, 1894, containing the regula- granting a right of way over the
 
 §309] 
 
 DITHII AND CANAL COMPANIES. 
 
 495 
 
 From the above provisions there can be no question regard- 
 ing the power of ditch and canal companies to acquire rights 
 of way over the public lands of the United States, and that 
 too whether those "'companies " are composed of " corpora- 
 tions, individuals or associations of individuals." 
 
 public lands necessary to the 
 tnainteiiaiice and use of llie .same. 
 
 " The i-ightcenth section of the 
 Act provides that: 
 
 " ' The privilej^e herein jjranted 
 shall not be construed to interfere 
 witli the control of water for irri- 
 gation and other purposes under 
 the authorit)' of the respective 
 States or Territories.' 
 
 " The control of the flow and use 
 of water is therefore a matter ex- 
 clusively under the Slate or Ter- 
 ritorial control, tlie matter of ad- 
 ministration within the jurisdic- 
 tion of this departtneiit beiuji; 
 limited to the approval of ijiaps 
 carrying the right of way over the 
 public lands. 
 
 "In submitting maps for ap- 
 proval under this Act, however, 
 which in any wise appropriate 
 natural sources of water supply, 
 such as the damming of rivers or 
 the api)ropriation of lakc^, such 
 maps should be accompanied by 
 proofs that tlie plans and purpose 
 of tlie projectors liave been regu- 
 larly submitted and approved in 
 accordance with the local laws or 
 customs governing the use of 
 water in the Slate or Territory in 
 which the same is located. 
 
 "No general rule can be ailoptcd 
 in regard to this matter. Kach 
 case must rest upon the showing 
 filed in support tliercof. 
 
 "The previous holding of this 
 department, expressed in the cir- 
 
 cular approved March 21, 1S92, as 
 follows, viz : 
 
 " ' This Act does not con- 
 template the a]>propriation for 
 reservoir purpO'^es of natural lakes 
 that are already the source of 
 water supply, nor thed unniingof 
 rivers so that the adjacent coun- 
 try is overflowe<i,' is hereby over- 
 ruled and set afiide. 
 
 2. "By section 21 of the Act it 
 will be seen that the approval of 
 a map of a canal, ditrh or reser- 
 voir does not necessarily carry 
 with it a right to the land 50 feet 
 on each side, the approval of the 
 department granting only such 
 right of way as the law provides. 
 The width necessary for construc- 
 tion, maintenance and care of a 
 canal, ditch or reservoir is not <lc- 
 termined. 
 
 3. ", Ml persons settling on the 
 puhliclands to which riglit of way 
 has attached for a canal, tlitch or 
 reservoir take the same subject to 
 such right of way, and at the full 
 aiea of the subdivision entered, 
 there being no authority to make 
 deductions in such cases. 
 
 4. "Canals, ditches or reser- 
 voirs lyingpartly upon unsurvestd 
 land can be appr.)vi'd if the appli- 
 cation and accompanying maps 
 an<l j)apL'rs conform to lluse regu- 
 lations, but till- approval will only 
 relate to that i)nrtiou traversing 
 the snrveyerl hinds. 
 
 5. "Any incorporated company
 
 496 
 
 DITCH AND CANAL COMPANIES. 
 
 [§309 
 
 The rights of way over State or private lands may be ac- 
 quired by these companies by legislative grants, by purchase, 
 or by the power vested in those companies of eminent domain 
 by means of special condemnation proceedings. But as these 
 
 desiring to obtain the benefits of 
 the law is required to file the fol- 
 lowing papers and maps with the 
 register of the land district in 
 which the canal, ditch or reservoir 
 is to be located, who will forward 
 them to the General Land Office, 
 where, after examination, they 
 will be submitted to the Secretary 
 of the Interior with recommenda- 
 tions as to their approval: 
 
 ''First. — A copy of its articles of 
 incorporation, duly certified to by 
 the proper officer of the company, 
 under its corporate seal. 
 
 "Second.— A copy of the State 
 or Territorial law under which the 
 company was organized (when or- 
 ganized under State or Territorial 
 law), with certificate of the Gov- 
 ernor or Secretary of the State or 
 Territory that the same is the ex- 
 isting law. 
 
 " Third. — When said law directs 
 that the articles of association or 
 other papers connected with the 
 organization be filed with any 
 State or Territorial officer, the 
 certificate of such officer that the 
 same have been filed according to 
 law, with the date of the filing 
 thereof. 
 
 "Fourth. — When a company is 
 operating in a State or Territory 
 other than that in which it is in- 
 corporated the certificate of the 
 proper officer of the State or Ter- 
 ritory is required that it has com- 
 plied with the laws of that State 
 or Territory governing foreign 
 
 corporations to the extent re- 
 quired to entitle the company to 
 operate in such State or Territory. 
 "Fifth.— '^he official statement, 
 under the seal of the company, of 
 the proper officer that the or- 
 ganization has been completed; 
 that the company is fully author- 
 ized to proceed with construction 
 according to the existing law of 
 the State or Territory, and that the 
 copy of the articles filed is true 
 and correct. 
 
 (A form for such statement is 
 given.) 
 
 "Sixth. — .\ true list, signed by 
 the president, under the seal of 
 the company, showing the names 
 and designations of its officers at 
 the date of the filing of the proofs. 
 (Form given.) 
 
 "Seventh. — A copy of the 
 company's title or right to appro- 
 priate the water needed for its 
 canals, ditches and reservoirs, cer- 
 tified as required by the Stale or 
 Territorial laws. If the miner's 
 inch is the unit used in such title 
 its equivalent in cubic feet per sec- 
 ond must be stated. 
 
 "Eighth. — A copy of the State 
 or Territorial laws, water-rights 
 and irrigation, with the certificate 
 of the Governor or Secretary of 
 the State or Territory that the 
 same is the existing law. 
 
 "■Ninth. — A statement of the 
 amount of water flowing in the 
 stream supplying the canal, ditch 
 or reservoir at the point of diver-
 
 §309,310] DITCH AND CANAL COMPANIES. 
 
 4U7 
 
 proceedings are somewhat unlike in the different States and 
 Territories tliey will be discussed under their proper heads in 
 Part Second of this volume.' 
 
 §310. Power of Acquiriiii: Water Ki:;hts h.v Appnipria- 
 tioii. — These irrigation companies have the power of acquir- 
 ing exclusive rights to water of the streams or lakes or other 
 sources of supply, and of storing and conducting it to the 
 place where it is to be applied for irrigation or other bene- 
 ficial purposes by means of ditches, canals or other works. 
 There are several methods by which these rights to water 
 may be acquired. One is by the appropriation of the water, 
 either in the individual or corporate names. ^ These appro- 
 priations, of course, under the general rule of the arid region, 
 if they are prior in time, have the superior right. But if 
 other rights have vested in and to the waters of a certain 
 
 sion or damming during the pre- 
 ceding year or years. For this 
 purpose it will be necessary to 
 give ihe maximum, minimum and 
 average monthly flow in cubic feet 
 per second, and the average annual 
 flow. All available data as to the 
 flow is required. The method of 
 measurement or estimate by which 
 these results have been obtained 
 must be fully stated. 
 
 '^ Tenth. — Maps, field notes and 
 other papers as hereinafter re- 
 quired. 
 
 ^'Eleventh. — If certified copies 
 of the existing laws regarding cor- 
 porations and irrigation and of 
 new laws as pa.ssed from time to 
 time be forwarded to this office by 
 the Governor of the State or Ter- 
 ritory, the applicant may file, in 
 lieu of the requirements of the 
 second and eighth subdivisions of 
 this paragraph, a certificate of the 
 Governor or Secretary of State 
 that no change has been made 
 
 since a given date, not later 
 than that of the laws last for- 
 warded. 
 
 6. "Individuals or associations 
 of individuals making applications 
 for right of way are required to 
 file the information called for in 
 the si'venth, eighth, ninth and 
 tenth sections of the previous 
 paragraph. .Association of indi- 
 viduals must in addition file their 
 articles of association; if there be 
 none, the fact must be slated over 
 the signature of each number of 
 the association." 
 
 Specific rules are then laid down 
 as to the surveys, maps, field 
 notes, affidavits and other papers 
 required. .Mso forms for " tlue 
 proofs " an<l verification of maps 
 of right of way for canals, ditches 
 and reservoirs arc given. 
 
 • See I'art Second for Statutory 
 Enactments. 
 
 -See Ante Section 155.
 
 498 DITCH AND CANAL COMPANIES. [§ 310, 311 
 
 stream or lake, prior to that of the company's rights, its ap- 
 propriation is subsequent and subject to all those vested 
 rights.^ Identically the same rules apply as govern appro- 
 priations between private individuals. A ditch company di- 
 verting water for the general purpose of irrigation, cannot, by 
 any provisions of its by-laws, rules or regulations, exempt it- 
 self or its stock holders from the operations of the law govern- 
 ing in respect to priority of appropriation . 
 
 § 311. Same — Authorities. — The question recently came 
 up in a case decided by the Supreme Court of Colorado, the 
 case of Combs vs. Agricultural Ditch Company,^ in which 
 the defendant, a corporation, offered to introduce in evidence 
 certain of its by-laws, in order to show that it was under no 
 obligations to furnish water to plaintiff, who had applied for 
 a writ of mandamus to compel the defendant to do so. The 
 by-laws were as follows: " First, no water shall be sold from 
 the company's ditch except to stockholders. Second, the 
 price of water shall always be as low as is consistent with the 
 permanent maintenance of the ditch. Third, no cash divi- 
 dends shall be declared on the stock of the company." And 
 the Supreme Court said: "Such testimony, if it had been 
 admitted, would not have been controlling. A ditch com- 
 pany diverting water from a natural stream for general pur- 
 poses of irrigation cannot by any provisions or declarations of 
 its by-laws, rules or regulations exempt itself or its stock- 
 holders from the operations of the State constitution. The 
 unappropriated waters of every natural stream belong to the 
 public, and are subject to appropriation by the people to ben- 
 eficial use. Priority of appropriation to actual beneficial use, 
 and not mere ownership of stock in a ditch company, gives 
 the better right to such use. Individuals may organize a 
 company either by or without incorporation, for the construc- 
 tion of an irrigating ditch, and may b}^ such means divert the 
 unappropriated waters of a natural stream. Thej^ may pro- 
 vide that their several interests in such enterprise shall be 
 represented by shares of stock. But neither the company nor 
 
 1 See Aute Sections 173-1S4. 2 17 Colo. 146; 28 Pac. Rep. 966.
 
 §311,312] DITCH AND CANAL COMl'ANIE.^ 
 
 ■499 
 
 any stockholder of the company can thus withhokl the water 
 from beneficial use. nor reserve it for the future use of junior 
 appropriators to the prejudice of prior appropriators, nor to 
 the exclusion of those who in the meantime may undertake, 
 in good faith, to make a valid appropriation thereof."' 
 
 § 31*2. Same— Power of Aniuiriiii? Water-Kij^hls hy Leiris- 
 lative (irailts. — Another method by which water-rights may 
 be acquired by these companies isby special legislative grants. 
 There is no doubt that a State legislature has the right to 
 grant to individuals and corporations the exclusive right to 
 the use of waters within a certain tract of country, with two 
 limitations, however. First, the rights granted must be in 
 waters flowing over the lands owned by the State or Territory 
 granting them; and second, they must be subject to all prior 
 or existing vested rights. In regard to the first limitation, it 
 is based upon the plain principle that a legislature of a State 
 cannot grant a thing that the State does not own. If the 
 thing granted is not in the grantor, no right passes to the 
 grantee.- 
 
 1 See also Wheeler vs. Northern 
 Colo. Irr. Co., lo Colo. 582; 17 Pac. 
 Rep. 487, where the Court held 
 that under the constitution of the 
 vState of Colorado (Art. 16, vSec- 
 tions 5-8), declaring unappropri- 
 ated water of a natural stream 
 "public" property, subject to ap- 
 propriation for the "use of the 
 people" free of charge, the dis- 
 tributor of water to consumers for 
 hire, not being the proprietor of 
 water unappropriated by it, a 
 demand of $10 per acre, in ad- 
 vance, for "the right to receive 
 and use water" from its canal is 
 in violation of the constitutional 
 right to the use of unappropriated 
 water free of charge. 
 
 But see Tarmers High Line Co. 
 vs. vSouthworth, 13 Colo, in; 21 
 I'ac. Rep. 102H. 
 
 McFadden vs. Board, 74 Cal. 
 571; 16 Pac. Rep. 397, where the 
 Supreme Court of California held 
 that: A corporation organized 
 for the purpose of supplying water 
 for the use of the owners and oc- 
 cupants of the land within a par- 
 ticular district may adopt by-laws 
 limiting the right to use the 
 waters of the corporation, ex- 
 clusively to its own stockholders 
 on lands owned by theni. 
 
 Also see Wyatt vs. Larimer and 
 Weld Iron Co., 1 Colo. Apj). 4S0; 
 29 Pac. Rep. 906. 
 
 '■iNew Orleans vs. Tniled Slates, 
 10 Peters 662; Polk vs. Wen- 
 dell, 5 Wheat. 292; Sampeyreac 
 vs. United Stales, 7 Peters, 222; 
 Mud Creek Ir. Co. vs. Vivian, 74 
 Texas, 170, 11 S. W. Rep. 1078.
 
 500 DITCH AND CANAL COMPANIES. [pl3, 314 
 
 § 313. Same — Contiuuetl. — Regarding the second proposi- 
 tion stated above, that all grants bj' any State Legislature 
 must be subject to all existing vested rights, it can be said: 
 If the waters had been appropriated prior to the grant, the 
 grantee can only take subject to the prior appropriator's rights. 
 In the arid west the running waters are open to appropriation 
 by all persons, and no State or Territorial legislature has the 
 power to enact laws to permit an irrigation company to con- 
 trol or manage the water of any part within its jurisdiction, in 
 disregard of the rights of prior appropriators. Upon this sub- 
 ject the Supreme Court of Utah, in the case of Munroe vs. 
 Ivie,^ said: " Water is something that the appellants could 
 not control in any other way than by appropriation. The^^ 
 could not go and dig ditches and bring water down and let it 
 run to waste. If thej^ failed to appropriate it, any stranger 
 could appropriate it, and it was not necessary that such stranger 
 should be a member of the irrigating companj-, nor could such 
 company injure or trample upon his rights. This is a free 
 country and the lands are open to all, and the appropriation 
 of the water is open to all and the legislature cannot pass any 
 law that will put it into the power of an irrigating company to 
 control and manage the waters of any part of the Territory, 
 regardless of the rights of parties. Nor will the Court allow 
 irrigating companies to become engines of oppression." 
 
 There are two other methods by which an irrigation com- 
 pany can acquire rights to water, and these are first, by pur- 
 chase, concerning which subject we have treated suflSciently 
 in a previous chapter;^ and second, in some of the States and 
 Territories there are legislative provisions giving irrigation 
 companies the power to acquire water rights by special con- 
 demnation proceedings. This right, however, is not allowed 
 in all the States and Territories, as will be seen in Part 
 Second of this work, where the entire subject will be dis- 
 cussed.^ 
 
 IV. Duties of Ditcli and (Jansil Companies. 
 
 § 311. Construction of Works by Ditch Companies. — It is 
 
 the dut}" of air irrigation companies in building ditches, 
 
 1 2 Utah, 535. 2 See Ante Sections 264-270. • See Part Second.
 
 §314,315j DiTru ano rANM. .-.^ipaniks. 501 
 
 canals, aqueducts, rtr^,ervoir> aiui other works, to so construct 
 them that so far as human roresi-ht can reasonal)lv determine 
 the lives and property of the people living below them will he 
 safe from breakage and overflow. Where a company con- 
 structs a ditch which passes over the land of others it is 
 bound to construct it and use it so as not to injure those lands 
 regardless of the question as to who has the older right or 
 title; and if, through any fault or neglect of the owner of the 
 ditch in not properly constructing, managing and repairing 
 the ditch, the water overflows or breaks through the banks, 
 and destroys or damages the lands of others, either by wash- 
 ing away the crops or soil, or covering the land with sand or 
 debris, the owner of the ditch is liable for such injury.' How- 
 ever, the owners of the ditch or canal may not be held liable 
 for what is known as an act of God, unless the acts of the 
 owners are combined with it in such a manner as to render 
 him liable. - 
 
 § 315. Same.— Autliorilies (liscusstnl.— This subject is dis- 
 cussed in a very able manner by the Mr. Justice Thornton, 
 in rendering the opinion of the Supreme Court of California 
 in the case of Chicester vs. Consol. Ditch Co., supra, in which 
 he says: "No one is responsible for that which is merely 
 the Act of God or inevitable accident. But when human 
 agency is combined with it and neglect occurs in the employ- 
 ment of such agency, a liability for damages results from such 
 neglect. Such is the rule laid down and applied in Pulack 
 
 1 Richardson vs. Kicr, 34 Cal. triiisic, but always relative to 
 63; Campbell vs. B. R. & A. W. etc. some circiiinstaucc of time, jilace 
 Co., 35 Cal. 6S3. or person." Uroom's Ki'Kil Max- 
 Negligence is defined as the inis, 329. 
 "omission to do something which See also Polock vs. I'iocljc. ^5 
 a reasonable man, gnided hy Cal. 416; Turner vs. Tuolnmne \V. 
 those consiflcrations which ordi- Co., 25 Cal. 3qS; Proprietor of 
 narily regulate the conrluct of Lakes and Canals vs. Nashua Ky. 
 human affairs would do or doing Co., lo Cush. 385; Perry vs. Wor- 
 something which a prudent ami cesler, 6 (iray, 544. 
 rea.sonable man would not «lo; -Chicester vs. Consolidated 
 moreover it is not absolute or in- Ditih Co.. 59 Cal. 203.
 
 502 DITCH AND CANAL COMPANIES. [§ 315 
 
 VS. Pioche, 35 Cal. 416. 'The expression (the expression 
 referred to is that comprised in the words, 'act of God') ex- 
 cludes the idea of human agency, and if it appears that a given 
 loss has happened in any way through the intervention of man 
 it cannot be held to b e the act of God , but must be regarded as 
 the act of nian.'^ The learned author (Broom) just referred 
 to states the rule thus: 'The act of God signifies, in legal 
 phraseology, any inevitable accident occurring without the 
 intervention of man, and may, indeed, be considered to mean 
 something in opposition to the act of man, as storms, tempests 
 and lightning. The above maxim may, therefore, be para- 
 phrased and explained as follows: It would be unreasonable 
 that those things which are inevitable by the act of God, 
 which no industry can avoid, nor policy can prevent, should 
 be construed to the prejudice of au}^ person in whom there 
 has been laches.''-' In the case under consideration it is con- 
 tended on behalf of defendant that the damage sued for was 
 caused by the act of God. If this were so no case was made 
 out which should have gone to thejur}-. To this it was re- 
 plied that the agenc}' of the defendant concurred in causing 
 the injury complained of in which the defendant was negli- 
 gent, and therefore it was responsible. * * * Xhe injury 
 complained of occurred in a season of high water caused by 
 the melting of the snow on the mountains above. The over- 
 flow so caused is periodical, and is anticipated by all persons 
 inhabiting the region 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. 
 
 "If the accumulation of sand in the defendant's ditch was 
 
 1 Citing Polack vs. Pioche, 35 559, and cases cited; Broom's 
 
 Cal. 423, per Sanderson, J., deliv- Legal Maxims, Actus dei neniine 
 
 ering the opinion of the court. Jacit injuriani, pages 227, 228. 
 
 See cases cited in the opinion; 2 Broom's Legal Maxims, pages 
 
 Wharton on Negligence, ^ ^ 553, 227, 228.
 
 §315] 
 
 DITCH AND CANAL COM 1' AN IKS 
 
 r)<l3 
 
 such as to render it probable that tlie periodical overflow- 
 would by its action wash out the sand and thus damage the 
 land of plaintiff it was then the duty of defendant to use 
 all the means which an ordinarily prudent business man 
 would employ under the circumstances to prevent it. The 
 sand might have beeii removed from the ditch and deposited 
 where the water would not reach it during the period of over- 
 flow referred to above. Ordinary prudence would have dic- 
 tated such a course to prevent injury to the property of 
 another. As before stated, the obligation rested upon the 
 defendant to exercise the diligence in the use and manage- 
 ment of its ditch which a prudent man would ordinarily em- 
 ploy under the circumstances where his own interests were to 
 be affected."^ 
 
 1 See also Greely Irr. Co. vs. 
 House, 14 Colo. 549; 24 Pac. Rep. 
 329, where the facts were : 
 Defendants permitted the water 
 to overflow the banks of their 
 ditch and flood plaintiff's land, 
 though they had been warned 
 that the ditch was running too 
 full and that the water was in 
 danger of escaping unless the 
 flov.- was diminished. After this 
 warning the superintendent, at 
 the request of one of the trustees 
 of the company, raised the head- 
 gates and increased the flow. 
 Held, that defendants were liable 
 under Gen. St. Colo. § g 312, 1728, 
 1733. requiring the owners of 
 ditches and canals to keep them 
 in good condition, so as to pre- 
 vent the escape of water to ad- 
 jacent property. .And also the 
 Court held that: Defenrlant'slia- 
 bilit}^ arises from their failure to 
 exercise ordinary care in prevent- 
 ing the escape of the water; and 
 that defendants cannot avoid the 
 consequence of their own negli- 
 gence on the plea that g()])hers 
 
 burrowed the banks, and that 
 therefore the overflow was the 
 result of unavoidable accident. 
 
 O'Comier vs. North Trucker 
 Ditch Co., 17 Nev. 245; 30 Pac. 
 Rep. 8S2. 
 
 Also case of McCarty vs. Boise 
 City Canal Co. (Idaho), 10 Pac. 
 Rep. 623, where it was held that a 
 person owning a ditch from which 
 water escapes upon the premises 
 of the adjoining land owner and 
 allows such water to continue to 
 escape from his ditch after notice, 
 without any effort to prevent the 
 same, cannot escape liability for 
 damage done thereby on tlu- 
 ground that the adjoining land 
 owner might, at a slight expense, 
 have prevented any damage by 
 digging a ditch on his land tliat 
 would have conducteil said water 
 off his premises. 
 
 See Catlin Canal Co. vs. Hest 
 (Colo.), 31 Pac. Rep. 39I, where it 
 was held tl;.il where defendant 
 ])ermitted a l^reak in his ditch to 
 remain unrepaired for three 
 weeks, wliereby plaintiff's land
 
 504 DITCH AND CANAL COMPANIES. [§316 
 
 §316. Same. — Duty Jis ('ommon Carrier. — The question 
 has arisen recently upon the point as to whether a canal com- 
 pany organized for the purpose of acquiring water-rights and 
 furnishing water to consumers is a common carrier or not. 
 The Colorado Court of Appeals, in the case of Wyatt vs. 
 Larimer & Weld Irr. Co..^ held thatr The liability of a 
 company for failing to supply a certain volume of water to 
 the holders of water-rights according to contract cannot be 
 determined on the theory that the company is a common car- 
 rier, where the rights in question were acquired from the 
 company after its appropriation of the water in its canal from 
 a public stream. And Mr. Justice Reed in delivering the 
 opinion of the Court upon the subject in question said: " In a 
 case like the present the facts and conditions stated in the 
 complaint divest the appellee of every legal element necessary 
 to constitute it a common carrier. Take the earliest definition 
 of a ' common carrier ' and we have, ' to render a person liable 
 as a common carrier he must exercise the business of carrying 
 as a public employment, and must undertake to carry goods 
 for all persons indiscriminately, and hold himself out as ready 
 to engage in the transportation of goods for him as a business.' 
 Coggs vs. Bernard, 2 Ivd. Raym. 909; Ingate vs. Christie, 3 
 Car. & K. 61; Chit. Carr. 15. Adopted and recognized as 
 correct in i Kent, Com. p. 498, §40; Story Bailm. §495; Sat- 
 terly vs. Groat, i Wend. 272, Citizens Bank vs. Nantuckett 
 Steamboat Co., 2 Story, 17— and generally in all subsequent 
 American decisions. Anderson's Law. Diet.; 'Common Carrier: 
 One who undertakes, for hire or reward, to transport the 
 goods of such as choose to employ him, from place to place.' 
 See Dwight vs. Brewster, i Pick. 53: 'If the carrier be em- 
 ployed in carrying for one or a definite number of persons, 
 by way of special undertaking, he is only a private carrier.' 
 Redf. Car. § 19. These definitions are so elementary that 
 they would not be stated except for purposes of ilhistration, 
 to show that in the case presented the corporation is not 
 
 was overflowed, such conduct was l i Colo. App. 480; 29 Pac. Rep. 
 
 negligence per se, and defendant 906. 
 was liable.
 
 §316] DITCH AM) .'ANAL C)MI'ANIi:s. 505 
 
 brought within the definition in ;uiy rcspL-.n oi ciurt a ' com- 
 mon ' or 'private' carrier, comini; nearer the defirition of 
 private than ' common " carrier, but lacking several indispen- 
 sable elements of either. In order to constitute a carrier of 
 either class (i) the goods or thing to he carried must be the 
 property of the bailor; (2) the thing must be delivered by the 
 bailor to the carrier to be transported; (3) the carrier must 
 transport and deliver to the consignee the identical goods 
 delivered to him for transportation; (4) a person who con- 
 tracts to transfer and deliver to another, at a given place, a 
 certain portion of a common lot of material, to be separated 
 from it at the place of the consumer, to which the consumer 
 had no title prior to transportation and delivery, is in no legal 
 sense a carrier, but a vendor of the commodity." 
 
 But this case was again appealed to the Supreme Court of 
 that State and the decision of the Court of Appeals reversed,* 
 but it was upon the theory that the status of the defendant 
 could not affect the rights of the parties which were to be 
 measured and determined by the construction of the contracts 
 between the parties; and that the duties of the company 
 would be the same to plaintiffs whether that duty was to fur- 
 nish water under their contract as proprietor or as a carrier of 
 water. The Court said: "The decision by the Court of Ap- 
 peals in this case was rendered by a divided court. We are 
 unable to see wherein the discussion by the learned Judge 
 writing the majority opinion touching the constitutional 
 status of irrigation companies in this State was essential to 
 the decision of the question involved in the case; but, inas- 
 much as the views expressed in that opinion are so at variance 
 with numerous decisions of this Court, we feel impelled to 
 express our disapproval thereof, and our adherence to the 
 doctrine heretofore announced by this C<nirt in relation to the 
 status of canal companies organized for the purpose of carry- 
 ing water for general purposes of irrigation. We adhere to 
 the doctrine that such a canal company is not the proprietor 
 of the water diverted by it, but that ' it must be regarded as 
 an intermediate agency existing for the jjurpose of aiding 
 
 l(Colo.) 33 I'ac. ki-p. \.\.\.
 
 506 DITCH AND CANAL COMPANIES. [§316,317 
 
 consumers in the exercise of their constitutional rights, as 
 well as a private enterprise prosecuted for the benefit of its 
 owners.' ^ The appellants allege that by the terms of their 
 contracts, when the compan^^ shall have outstanding water- 
 right contracts sufficient to cover the amount of water that 
 the compan3'"s canal is able to furnish, the right of the com- 
 pany to enter into further contracts is at an end; and that 
 such limit has been reached. The company insists that it 
 has the right to dispose of water-rights up to the estimated 
 capacity of its canal to carr}- water. The rights of the re- 
 spective parties are therefore to be measured and determined 
 b}' the construction of the contracts in question; and the con- 
 troversy, as above stated, involves only their contractual 
 rights. The status of the defendant companj^ could in no 
 aspect affect these rights. Its duty to these plaintiffs would 
 be the same whether that duty was to furnish water under 
 their contracts as proprietor or carrier of water. ' ' 
 
 It is clear from the above that the Court did not hold the 
 status of the company to be that of a ' common carrier ' as 
 that term is known in its strict legal sense, but more in the 
 sense of a private carrier, whose duties were measured and 
 determined b}' the construction of the contracts made between 
 it and the consumer of the water. 
 
 § 317. Same.— Duty of Ditch Company to Furnish Water 
 to Consumers. — One of the duties that devolves upon irriga- 
 tion companies organized for the purpose of furnishing water 
 to consumers is to furnish the water to all actual bona fide 
 consumers making application therefor and tendering the 
 proper charges, provided of course the company has the water 
 to spare. In a recent case in Colorado it was held that a 
 ditch company carrying water for general purposes of irriga- 
 tion cannot arbitrarily^ refuse to supply an actual bona fide con- 
 sumer. ^ And the Court said that: "A refusal to supply 
 
 1 Citing Wheeler vs. Irrigation i6 Colo. 6i; 26 Pac. Rep. 313; 
 
 Co., 10 Colo. 582; 17 Pac. Rep. Combs vs. Ditch Co., 17 Colo. 146; 
 
 487; Reservoir Co. vs. Southworth, 28 Pac. Rep. 966. 
 
 13 Colo, iii; 21 Pac. Rep. 1028; 2 Combs vs. Agricultural Ditch 
 
 Strickler vs. Cit}' of Colo. Spgs., Co., 17 Colo. 146; 28 Pac. Rep. 966.
 
 §317,318] DITCH AND CANAL COMPANIES. 507 
 
 water by the carrier to be justifiable must rest upon somethiiii;; 
 more substantial than the mere will of the carrier." ' 
 
 In a California case, McCreary vs. Beaudry,- the Court said 
 upon the subject: " It appears sufficiently clear that appel- 
 lant had appropriated water for distribution and sale, and that 
 he had acquired and was exercising the right to collect rates 
 from the inhabitants of the city of Los Angeles for the use of 
 it; and the use of all water appropriated for sale, rental or dis- 
 tribution is declared by the Constitution to be a public use; 
 and the right to collect rates or compensation for the use of 
 water to the inhabitants of any city is a franchise which can- 
 not be exercised except by authority of and in the manner 
 prescribed by law. (Const. Art. XIV. > Whenever water is 
 appropriated for distribution and sale the public has a right 
 to use it. That is, each member of the community by pay- 
 ing the rate fixed for supplying it has a right to use a reason- 
 able quantity of it in a reasonable manner. Water appropri- 
 ated for distribution and sale is ipso facto devoted to a public 
 use, which is inconsistent with the right of the person so appro- 
 priating it to exercise the same control over it that he might 
 have exercised if he had never so appropriated it." 
 
 And it has been repeatedly held that where a ditch company 
 disregards this duty of furnishing water to bona fide con- 
 sumers under the circumstances above stated that mandamus is 
 the proper remedy to compel the company to furnish the water.' 
 
 There are other duties imposed upon these irrigation com- 
 panies by statutory enactments which will be determined in 
 Part Second of this volume. 
 
 A\ Lialu'lilies ol" Ditcli :ind ( anal ('oinpaiii«'s. 
 
 § :n8. Liabilities of Coiiiimiiies in (ieiicral. -The ninih 
 section of the Act of Congress of July 26, 1S66, provides: 
 " But whenever any person in the construction of any ditch 
 
 1 See also Golden Canal Co. vs. McCreary vs. lk-au.lr> , M7 Cal. 12..; 
 
 Bright, 8 Colo. 144; 6 Pac. Rt-j). 7 1'"^. Rep. 264; South Houhlcr 
 
 J42. \)\\x\\ Co. vs. MarfoU. 15 Colo. 302; 
 
 267 Cal. 120; 7 Pac. Rep. 2f.4. 25 Pac. Rt-p. 5<M; Wheek-r vs. 
 
 3 Combs vs. Agricultural Ditch Northern Colo. Ir. Co.. n. Colo. 
 
 Co., 17 Colo. 142; 2S Pac. Rep. 966; 5«2; '7 l'«'^- R^^P- J^?-
 
 508 DITCH AND CANAL COMPANIES. [§318,319 
 
 or canal injures or damages the possession of any settler on 
 the public domain the party committing such injur}' shall 
 be liable to the party injured for such injury or damage." 
 This section certainly fixes the liability of the ditch com- 
 panies as far as they can be fixed b}^ Congressional act gov- 
 erning the lands and waters of the public domain. Also 
 there are legislative enactments in the respective States and 
 Territories fixing the liabilities of the companies for faulty 
 construction and negligence in other respects whereby inju- 
 ries result.^ 
 
 § 319. Companies Liability for Injuries to Stockholders' 
 Rights. — Irrigation corporations formed for maintaining 
 water ditches, keeping them in repair and controlling and 
 dividing the water between the several stockholders are 
 bound to perform the duties prescribed in the certificate of 
 incorporation, and for any neglect or failure to properly per- 
 form its duty in this respect it is liable to any stockholder 
 who is injured thereby to the extent of the damages suffered 
 by him. So also where the injury to a stockholder was occa- 
 sioned by other stockholders above his land diverting more 
 water than th'ey were entitled to, under the terms of the in- 
 corporation the company itself is liable for the injuries sus- 
 tained by him. And it is also held that the corporation can- 
 not relieve itself from responsibility by pursuing a practice 
 at variance with its agreement as created by the articles of 
 incorporation without the consent of all the stockholders, and 
 that an}' stockholder not assenting thereto will not be bound 
 by any custom which the officers of the incorporation might 
 adopt in contravention of its agreement to protect the rights 
 of the several stockholders. 
 
 In a case decided by the Supreme Court of Nevada ^ this 
 subject was discussed at some length by Mr. Justice Hawley, 
 and in the course of the opinion of the Court rendered by him 
 he observed: " The stated objects of the corporation, as ex- 
 pressed in the certificate and the stipulation in the deed, 
 clearly define the duties imposed upon the corporation. By 
 
 1 See Part Second. Ditch Co., 17 Nev. 245; 30 Pac. 
 
 2 O'Connor vs. North Truckee Rep. 882.
 
 §319] DITCH AND CANAL COMPANIES. 5H*J 
 
 the terms and conditious thereof the corporation is bound lo 
 keep the main ditch supplied with water and to regulate and 
 divide its use among the several stockholders in accordance 
 with their respective interests, and it must necessarily follow 
 that for any neglect or fiiilure to properly discharge its ilnty 
 in this respect it would be liable to the stockholder who is 
 injured thereby to the extent of the damages suffered by him. 
 " Recognizing this to be its duty the trustees of the cor- 
 poration in the month of January, 1878, unanimously 'Re- 
 solved, That the trustees have gauges pn pared for outlet of 
 proper quantities of water to each stockholder, and that the 
 trustees employ a man during the irrigating season to super- 
 intend and regulate the use of water; that every stockholder 
 be credited each season at a value per share to be regulated 
 by the trustees, according to the amount owned by said stock- 
 holder, and * * * that trustees be empowered and in- 
 structed to embody the sense of this resolution in action, and 
 use all possible means to prevent any stockholder from using 
 more water than he owns without paying for it." 
 
 " The corporation could not in opposition to the articles of 
 incorporation, the trust deed and this resolution relieve itself 
 from responsibility by pursuing a practice at variance there- 
 with without the consent of all the stockholders, and any 
 stockholder not assenting thereto would not be bound by any 
 custom which the officers of the corporation might adopt in 
 contravention of its agreement to protect the rights of the 
 several stockholders." 
 
 The Court therefore held in tlie above case that the instru- 
 ments referred to created a contract between the stockholder 
 and the corporation, and that the corporation was liable to 
 any stockholder fojr any injury caused by the excessive diver- 
 sion of water by the other stockholders.' 
 
 INewall vs. Hill, 2 Met. i«i; 1-iiiley vs. Simpson, .• /.al.. .u». 
 
 Goodwin vs. Gilbert, 9 Mass. 510; .v,2; 7, Wash. Real I'rop. 622. 
 
 Nugent vs. Riley, 1 Mel. 117; It is perfectly ekar that in the 
 
 Maule vs. Weaver, 7 I'enn. St. 329; rase in hand there is a sti])nlatioM 
 
 Clapham vs. MoK'le, i vSev. iSS'r "'"' aKreenieiil. as distiiiKiiishecI 
 
 Shepherd's Touchstone, 52. 122; from a con<lition. in the deed, 
 
 Huff vs. Nickerson, 27 Me. i<)r>; ui.on the hreadi of wiiiihan nc- 
 
 lioii lies. 2 I'ar. on Cont.. 526-7.
 
 CHAPTER XI. 
 Legal Remedies. 
 
 I. REMEDIES IN GENERAL. 
 Section. — 
 
 320. Contents of chapter. 
 32T. An actionable injur}' to water- 
 rights. 
 
 322. Legal and equitable relief in 
 
 same action. 
 
 323. Same. — Rule in California. 
 
 II. REMEDIES AT LAW. 
 
 324. Actions for damages caused 
 
 by ditches. 
 
 325. Same. — Degree of negligence 
 
 necessary to create liability 
 for damages. 
 
 326. Damages to prior appropria- 
 
 tor by unlawful diversion. 
 
 327. Same. — Parties to an action 
 
 for damages. 
 
 328. Damages to riparian owners 
 
 for unlawful diversion. 
 
 III. EQUITABLE RELIEF. 
 Section.— 
 
 329. Injunction where no actual 
 
 damages are shown. 
 
 330. Riparian proprietor's rights 
 
 to injunction for unlawful 
 diversion. 
 331 Same. — Continued. 
 
 332. Appropriator's right to in- 
 
 junction for unlawful diver- 
 sion. 
 
 333. Nuisance — Equity will re- 
 
 strain when. 
 
 334. Trespass. — Equity will re- 
 
 strain when. 
 
 335. Mandamus. — Action will lie 
 
 for when. 
 
 336. Action to quiet title. 
 
 337. Equity has power to deter- 
 
 mine extent of right. 
 
 I. Remedies in General. 
 
 § 320. Coutents of Chapter.— In the previous chapters of 
 this work we have set forth the rights of the parties as ac- 
 quired by the various methods in and to the waters of streams 
 and lakes, and also those rights acquired to water from un- 
 derground sources. And now, in general, it can be said that 
 such being the rights of the appropriator or of the riparian 
 proprietor, as the case maj^ be, any material interference with 
 those rights, acquired either with the water itself or with the 
 ditch, canal, well, reservoir or other structure, by anyone not
 
 §320,321] LEGAL REMEDIES. 511 
 
 entitled to commit any such act an action will lie, and suit- 
 able remedies may be obtained both at law and in equity. If 
 the persons or company constructinj^ the works for diverting 
 the waters of the stream or the reservoir for storing the water 
 should construct those works negligently or carelessly, or 
 without due regard to the solidity of the structures or the 
 safety of the property rights of those below; and if after- 
 wards those structures should break away and thereby cause 
 damages the persons or company owning such structures 
 will be liable to all persons in damago for the injures so 
 caused. 
 
 The present chapter will be devoted, first, to a discussion of 
 the remedies at law; and second, equitable remedies. 
 
 § 321. An Adionablo Injury to Watcr-Uiuhts. —Where 
 
 the act complained of is committed under a claim of right 
 which if allowed to continue for a certain length of time 
 would ripen into an adverse right and deprive a person of his 
 propert)', he is not only entitled to an action for the vindica- 
 tion of his right, but also for its preservation. This is espe- 
 cially' true of actions for the diversion of water, where there 
 is a clear violation of an established right and a threatened 
 continuance of such violation.^ In such cases it is not neces- 
 sary to show actual damages in order that the injury be an ac- 
 tionable one. That there may be an invasion of a person's 
 right to water which will justify an action without showing 
 actual damage cannot be questioned. But in applying this 
 doctrine the authorities hold a distinction must be made be- 
 tween those uses of water which are the exercise of the 
 riparian proprietor's natural right and those which are not. 
 Such a proprietor has a right in the arid west to use the water 
 
 1 Goddard on Ivaseinciits, 423, N.J. Htj. 343; Coining vs. Tioy 1. 
 
 424; Angell and Ames on Water- & N. F., 34 naih. 491; 40 N. Y. 
 
 Courses, 135; Barnes vs. Sabron, 191 ; 39 Harb. 326; Crosby & Sons 
 
 10 Nev. 247; Parker vs. Criswold, vs. Li^ljlowlcr, 3 I%<|. Cases(L. R.), 
 
 17 Conn. 302-5; vStcin vs. lUirdcn, 296; Lyon vs. McLauj^hlin. 32 Vt. 
 
 24 Ala. 148; Webl) vs. Portland 425; Kerr on Injumtions. 22b, 
 
 Mfj<. Co., 3 Sumner, 197; Hols- 393; Angell on Walir-Courses. 
 
 man vs. Boiling Spgs. B. Co., 14 449; High »>n Injunelions. ji 45<>-
 
 512 LEGAL REMEDIES. [§ 321, 322 
 
 of a stream for the purpose of irrigation as an incident to his 
 ownership of the land. The right is not acquired by use. 
 The only limitation is that the riparian owner must so use the 
 water as to cause no actual material damage to another. On 
 the other hand, no one proprietor has any right to divert in 
 the technical sense any portion of the water permanently from 
 another so that it either does not return to the stream at all or 
 not until it has passed the land of him below. Such diver- 
 sion would be a clear violation of a right, and if continued 
 adversely for the requisite period would ripen into a title. An 
 action will therefore lie for an injury to the right, without 
 proving actual damage or showing that the riparian proprietor 
 was making any practical use of the water. But so long as 
 one proprietor had enough for his lawful practical uses it 
 ought not and cannot be permitted to debar other riparian 
 proprietors from applying so much water as they profitably 
 can to agricultural purposes. It follows, therefore, that the 
 one proprietor gains no right by his using the water for irri- 
 gation and the others lose no right. 
 
 § 322. Legal and Ei^uitable lielief iu Same Action.— In an 
 
 early Montana case,^ the Supreme Court of that Territory 
 held that cases in equity, in which equitable relief is de- 
 manded, and actions at law, in which an equitable defense is 
 made, cannot be tried by a jury at law, but the decree must 
 be rendered by the judge sitting as a chancellor in a Court of 
 Chancery. Also, in a later case,^ the same Court held that 
 legal and equitable relief cannot be obtained in the same pro- 
 ceedings, and a judgment for damages for the diversion of 
 water and which perpetually enjoins parties from using the 
 water is irregular and void. In rendering the opinion of the 
 latter case, Murphy. J., said: "The proposition that law 
 and equity cannot be blended in the same suit or action under 
 our organic act was elaborately discussed and definitely settled 
 in the case of Gallagher et al. vs. Basey et al., by this Court." 
 But in the case of Basey vs. Gallagher, decided by the Su- 
 
 1 Gallagher vs. Basey, i Mout. 2 Woolman vs. Garringer, i 
 
 458. Mont. 535.
 
 § 322, 323J LEGAL UEMKDIES. 513 
 
 preme Court of the United States in 1S74. Mr. Justice Field, 
 in reudering the opinion of the Court upon the question in- 
 volved, said ; "If the remedy sought be a ley;al one a jury 
 is essential unless waved by stipulation of the parties; but if 
 the remedy sought be equitable, the court is not bound to 
 call a jury, and if it does call one it is only for the purpose of 
 enlightening its conscience and not to control its judgment. 
 The decree which it must render upon the law and the facts 
 must proceed from its own judgment respecting them and not 
 from the judgment of others. Sofneliiiic in the sauw action 
 both legal and equitable relief may be nought, as, for example, 
 zvhere datnages are claimed for a past diversion of -water and an 
 injioiction prayed against its diversion in the future. Upon the 
 question of damages a jury would be required; but upon the 
 propriety of an injunction the action of the Court alone could 
 be invoked. The formal distinction in the pleadings and 
 modes of procedure are abolished; but the essential distinction 
 between law and equity is not changed. * * *" Referring 
 to the statute of Montana regulating civil cases the court said: 
 " That statute is substantially a copy of the statute of Cali- 
 fornia as it existed in 1851." 
 
 § 3ti3. Saiiii'.— lliile in ("alifoniia.— Under the statute of 
 California and of those States and Territories following the 
 Code of Civil procedure of that State, there seems to be now 
 no question but that equitable and legal relief may be sought 
 and obtained in the same action. In the case of Natonia 
 Water and M. Co. vs. Clarkin,' Mr. Chief Justice Field, in 
 rendering the opinion of the Court upon this subject, said : 
 " This blending of an action at law with a petition for ancillary 
 relief to the equity side of the Court is admissible under our 
 system of practice. But to prevent confusion and preserve 
 the simplicity and directness requisite in the averments of a 
 complaint in an action at law the grounds of equity interposi- 
 tion should be stated subsequently to, and distinct from those 
 upon which the judgment at law is sought. It would be the 
 better practice in such case to commence thai jiortion of the 
 
 1 14 CaL 54S. See al.so late <asr of Watli-rsoii vs. SaMunhi-hcrc (Cal.) 
 35 Pac. 432-
 
 514 LEGAL REMEDIES. [§323,324 
 
 complaint which seeks the equitable relief with the form; 'and 
 for equitable relief, pending the above action, the plaintiff 
 further represents;' or, 'and, for a further cause of action the 
 plaintiff represents.' " 
 
 In a very recent case, decided b}^ the same Court, ^ it was 
 held that a complaint in an action to quiet title to water flow- 
 ing across the plaintiff's land and to enjoin a diversion thereof, 
 and to recover damages for the diversion, which states a 
 wrongful diversion of the water of the stream to the detriment 
 of the plaintiff, and a threatened continuance of such diversion 
 is sufficient to entitle the plaintiff to some relief and is not 
 bad on demurrer.- 
 
 II. Remedies at Law. 
 
 § 324. Actions for Damages Caused hy Ditclies.— A ditch 
 owner is liable for an injury caused wautonl}^ or by gross neg- 
 ligence; but he is not liable for a mere accidental injury where 
 no negligence is shown. And the general rule upon the sub- 
 ject of negligence is that one who constructs a dam or ditch for 
 the purpose of appropriating water is bound to exercise in the 
 construction and management thereof that degree of care and 
 prudence which ordinarily prudent men use in like instances 
 when the whole risk is their own. Both the degree and fact 
 of prudence must depend wholly upon the circumstances of 
 each particular case.^ 
 
 1 Hulstnan vs. Todd, 96 Cal. 228; where several owners of the 
 31 Pac. Rep. 39. stream joined as plaintiffs in an 
 
 2 It was held in the case of Mil- action for damages for diverting 
 ler vs. Highland Ditch Company, the waters of a stream, and for an 
 87 Cal. 430; 25 Pac. Rep. 550, that injunction to restrain the defend- 
 where debris is deposited upon ants from further diversion there- 
 the lands of the plaintiff by means of. The complaint was held bad on 
 of different ditches constructed b}- demurrer, both for misjoinder of 
 several defendants between whom parties plaintiff, and for a mis- 
 there was no concert of action, a joinder of causes of action. 
 
 joint action may be maintained to See also Barham vs. Hostetter, 
 
 enjoin them all from continuing 67 Cal. 274; Blaisdell vs. vStevens, 
 
 the wrong, but a joint judgment 14 Nev. 17; 33 Am. Rep. 523. 
 
 for damages in such cases is erro- 3 Hoffman vs. Tuolumne Water 
 
 neous and will be reversed. Co., 10 Cal. 412; Wolff vs. St 
 
 Also see case of Foreman vs. Louis Ind. W. Co., 10 Cal. 541; 
 
 Boyle, 88 Cal. 290; 26 Pac. Rep. 94, Fraler vs. Seers Union W. Co., 12
 
 §324,325] LEGAL REMEDIES. 515 
 
 Where one person owns a ditch which passes over the hind 
 of another the owner is bonnd to so use it as not to injure the 
 other's land, and this irrespective of the question as to which 
 had the older right or title: and if. through any fault or neglect 
 of the owner in not properly managing and keeping his ditch 
 in repair the water overflowed or broke through the banks 
 and destroyed or damaged the land or property of others, 
 either by washing away the soil or washing away other prop- 
 erty or covering the soil with sand, the owner of the ditch is 
 liable.i 
 
 § 3'-ir). Same— Doirret^ of Net^litriMice NCccssar.v to Civate 
 Liability for l)ainai?es. — Negligence is defined as " The 
 omission to do something which a reasonable man guided by 
 those considerations which ordinarily regulate the conduct of 
 human aflfairs would do, or doing something which a prudent 
 and reasonable man would not do; moreover it is not absolute 
 or intrinsic, but always relative to some circumstances of 
 time, place or person." - 
 
 As Mr. Justice Sandersqn said upon the subject of liability 
 of a ditch owner, in delivering the opinion in the case of 
 Richardson vs. Kier:-^ " He is bound to keep it in good re- 
 pair, so that the water will not overflow or break through its 
 banks, or destro)- or damage the lands of other parties; and 
 if, through any fault or neglect of his in not properly manag- 
 ing and keeping it in repair the water does overflow or break 
 
 Cal. 555; Rurbank vs. W. Walker charj^e thai the plaintiff's case is 
 R. U. Co., 13 Nev. 431; Turner vs. based on nej^lij^encc; that there is 
 Tuolumne W. Co., 25 Cal. 398; no j)resuiiiption that it was unlaw- 
 Richardson vs. Kier, 34 Cal. 63; ful to float loj^s; and that the 
 Campbell vs. Bear River Co., 35 plaintiff must show want of ordi- 
 Cal. 679. nary care, and to charj^je, instead, 
 1 Richardson vs. Kier, 34 Cal. 63. that plaintiff should recover if the 
 In the case of Hopkins vs. Butte lo}.(s formed a gorj^e obstructing 
 & M. Commercial Co., recently the naturnl'flow of the strennj and 
 decided by the Supreme Court of the gorge was suddenly released, 
 Montana, 33 Pac. Rep. H17, which causing the stream to overflow, ns 
 was an action by a ri])arian owner the latter charge practically iy. 
 against one engaged in floating nores the (juestion <»f negligence, 
 logs, for causing an overflow, it 2 Hroom's Legal Maxims, 329. 
 was held to be error to refuse to ^'3.1 Cal. 7.1.
 
 516 LEGAL REMEDIES. [§ 325, 326 
 
 through the banks of the ditch and injure the lands of others 
 either by washing away the soil or covering the soil with sand, 
 the law holds him responsible." 
 
 But, as we have seen in previous sections, no action will lie 
 against an owner of a ditch or reservoir for damages resulting 
 from an "act of God." And the law requires in the con-, 
 struction and repair of these works, necessary for the diver- 
 sion or storage of water, only such diligence and prudence as 
 would be employed by a prudent business man when dealing 
 with his own affairs.^ 
 
 § 326. Damages to Prior Appropriator by Unlawful Di- 
 version. — The rights of the prior appropriator being fixed bj^ 
 the nature and extent of his appropriation,^ for any infringe- 
 ment upon those rights by which he is injured an action will 
 lie. As he is entitled to the quantity of water up to the full ex- 
 tent of his appropriation, an action will lie for damages^ for an)- 
 past diversion by other parties by which his rights have been 
 substantially injured. Not only has a prior appropriator of 
 water a right to recover damans where his rights are in- 
 fringed upon by unlawful diversion by others, but he is also 
 entitled to recover damages for injuries caased by the acts of 
 subsequent appropriators on the stream above in erecting 
 dams or other obstructions by which the regularity of the flow 
 of water is so disturbed as to cause actual injury.'* 
 
 The appropriator cannot maintain an action upon an im- 
 plied contract for the value of the water or for the price of 
 
 1 Ante Sees. 314, 315. -^ UnionWater Co.vs. Cran', 25 Cal 
 
 In the recent case of Jacobs vs. 504; Tuolumne D. Co.vs. Chapman 
 
 Lorenz, decided by the Supreme 8 Cal. 392; Parke vs. Kilham, 8 
 
 Court of California, 33 Pac. Rep. Cal. 77; Weaver vs. Kureka Lake 
 
 119, which was an action brought Co., 15 Cal. 271; Foreman vs. 
 
 for destroying plaintiff's ditch, Boyle, 88 Cal. 290; 26 Pac. Rep. 94; 
 
 which crossed the defendants' Plulsman vs. Todd, 96 Cal. 228; 31 
 
 mine, the fact that there had been Pac. Rep. 39; Saint vs. Guerrerio 
 
 locations covering part of the (Colo.), 30 Pac. Rep. 235. 
 
 mine before the ditch was con- -i Comer vs. Simpson, 7 Cal. 340; 
 
 structed being immaterial when Phoenix Water Co. vs. Fletcher, 23 
 
 the defendants' title was not con- Cal. 481; Natoma Water Co. vs. 
 
 nected with them. McCoy, 23 Cal. 490; Jerret vs. 
 
 ".2 See Ante Sections 173-184. Mahan, 20 Nev. 89..
 
 §326,327] LEGAL REMEDIES. 517 
 
 personal propertj' sold and delivered against a person who has 
 wrongfully diverted the water from the stream above the head 
 of his ditch. His legal remedy in a case of this kind is an 
 action to recover damages for the tort.' In an action to re- 
 cover damages for the diversion of water to the allegeil injury 
 of plaintiff's riparian and appropriated water riglits by means 
 of a dam constructed by defendants it may be shown as a de- 
 fense under the denial of injury to plaintiff that the plaintiff 
 participated with the defendants in the maintenance of the 
 dam and the diversion of the water as a tenant in common 
 with the defendants on the ground that one who consents to 
 an act which occasions him loss is not wronged by it.- 
 
 § 3*27. Same. — Parties to an Action for Da maizes.— The 
 
 several owners of the water of a stream may unite as plaintiffs 
 in an action to restrain a diversion of the waters by a third 
 person, or to abate an obstruction therein as a nuisance; but 
 they cannot unite in an action for damages, for as to the 
 injury suffered there is no communit}' of interest.-* 
 
 It is a well settled principle of law, as established by the 
 general authorities, that an action at law for damages cannot 
 be maintained against several defendants ivhcji each acted in- 
 dependently of the others and there was no concert or unity of 
 design between them. It is held that in such a case the tort 
 of each defendant was several when committed, and that it 
 
 1 Parks C. & W. Co. vs. Hoyt, 57 existence of such deficieiicy is not 
 
 Cal. 44. « provision for liquidated damages 
 
 2 Churchill vs. Bauniaii, 95 Cal. such as will prevent recovery of 
 
 541; 30 Pac. Rep. 770; see Brown's other damages by the lessee when 
 
 Legal Maxims, Sec. 265; Cooley on it ai)])cars that the deficiency was 
 
 Torts, Second Kdition, 187; Lyon the result of the les.sor's failure to 
 
 vs. Tallmadge, i Johns Ch. 1S7; repair injuries to the race and ilam 
 
 Coswin vs. Ry. Co., 13 N. Y. 49. causeil hy an unusual freshet. 
 
 In the case of Pengra vs. Whee- •< Foreman vs. Boyle, 8S Cal. 290; 
 
 ler, 34 Pac. Rep. 354, the Supreme 26 Pac. Rep. 94; Bliss on Code 
 
 Court of Oregon held that a clause pleading, Sec. 76; I'.arham vs. 
 
 in a lease of a water power to the Hostetter, 67 Cal. 274; Blaisdell 
 
 effect that in default of a sufTicient vs. Stephens, 14 Nev. 17; 3 Am. 
 
 amount of water the lessor .shall Rej). 523; Miller vs. Highland 
 
 forfeit a pro rata ])r()portion of the Ditch Co.. H7 Cal. 430; 25 Par. Rep. 
 
 water rents accruing duiing the 550.
 
 518 LEGAL REMEDIES. [§ 327 
 
 does not become joint because afterwards its consequences 
 united with the consequences of several other torts committed 
 by other persons. If it were otherwise, the authorities hold, 
 one defendant however little he might have contributed to the 
 injury would be liable for all the injury caused by the wrong- 
 ful acts of all the other defendants, and he would have no 
 remedy against the latter because no contribution can be en - 
 forced between tort-feasors.^ 
 
 In the case of Blaisdell vs. Stevens, ^ decided by the Su- 
 preme Court of Nevada, several defendants were sued "for 
 wrongfully flowing waste water from their lands to the injury 
 of plaintiff's ditch, and for an injunction to restrain such 
 wrongful flowing of waste water." It appeared, however, 
 that the defendants "own, occupy and irrigate separate and 
 distinct tracts or parcels of land, each in his own right;" and 
 they moved for a non-suit upon the ground that it did not ap- 
 pear that the injury complained of "was the result of the 
 joint or concurrent act of defendants." The trial court over- 
 ruled the motion, and on appeal the Supreme Court of Nevada 
 held that the non-suit should have been granted, and said in 
 its opinion: "The general principle is well settled that 
 where two or more parties act, each for himself, in producing 
 a result injurious to plaintiff" they cannot be held jointly 
 liable for the acts of each other." On rehearing, however, it 
 was held that the injunction against defendants was proper; 
 but the judgment, so far as it awarded damages, was reversed. 
 
 But in the Supreme Court of California in the case of Huls- 
 man vs. Todd,=^ an action where defendants all joined in a 
 common answer denying the plaintiff's title and alleged that 
 all of the defendants claimed an interest in the waters of the 
 stream adverse to that of the plaintiff, by virtue of an appro- 
 priation made by one of the defendants and his grantors and 
 where it appeared that, in pursuance of said claim and/or the 
 several benefit of himself and his co-defendants such defendant 
 entered upon the stream above the plaintiff's land and diverted 
 
 1 Chapman vs. Palmer, 77 N. Y. Gould on Waters, Sec. 222; Pom- 
 
 51; Little Schuylkill Navigation eroy on Remedies, Sec. 307, 308. 
 Co. vs. Richards, 57 Penn St. 182; 214 Nev. 17. 
 
 Sellick vs. Hall, 47 Conn. 260; 3 96 Cal. 228; 31 Pac. Rep. 39.
 
 §327,328] LECiAL REMEDIES. 519 
 
 the waters of the stream therefrom, it was held that all of the 
 defendants are jointly liable for the damages resulting from 
 such diversion, and the fact that the ditch had not been ex- 
 tended to the land of one of the defendants is immaterial upon 
 the question of his joint liability. And Mr. Justice Belcher, 
 in rendering the opinion, said upon this point referring to the 
 cases cited above: " The ca.ses of Miller vs. Highland Ditch 
 Co., 87 Cal. 430, 22 Am. St. Rep. 254; Blaisdell vs. Stephens, 
 14 Nev. 17, 33 Am. Rep. 523, and Foreman vs. Boyle, 88 Cal. 
 290," are not in point. In those cases it was held that an 
 action for damages cannot be maintained against several de- 
 fendants jointly, 'u'hen each acts independently of the others and 
 there is no concert or unity of design bcticeeii them. The rule 
 thus stated is undoubtedly correct, but it is not applicable to 
 this case.^ 
 
 § 328. DaniJis^es to Riparian Owikmn for riihiwful IMvcr- 
 sion. — Damages may also be recovered in an action brought 
 by one riparian proprietor against another fur unlawfully ap- 
 propriating the waters of a stream for any purpose- as well as 
 for the unlawful diversion of the water by any trespasser. 
 
 In an action by a riparian proprietor to restrain the diver- 
 sion of water from a stream adjoining his lands and to recover 
 damages for a prior diversion, evidence of injuries caused by 
 the diversion to lands of the plaintiff not bordering upon the 
 stream and to his cattle pastured thereon, is inadmissible. 
 
 •i 
 
 1 See Hilhnan vs. Newington, stream for the purpose of irriga- 
 57 Cal. 56. tion, an instruction to the jury 
 
 See Carson vs. Wood, 10 Mont. that they should find for the dc- 
 
 500; 26 Pac. Rep. 388, where it feiidant if they believed that he 
 
 was held that the right of action had used no mure ivater than -was 
 
 for damages may exist for tlie necessary for that purpose is 
 
 wrongful diversion of water dur- erroneous, for by it the jury is in 
 
 ing a brief time, and although effect told that the defenciant was 
 
 such diversion was not inter- entitled to <livert an<l use all of 
 
 rupted. '^''*^' water if necessary for the ir- 
 
 2 See Learned vs. Tangeman, 65 rigation of his lands, without re- 
 Cal. 334, where it was held in an gard to tin- necessilits of the 
 action by one riparian proprietor plaintiff. 
 
 against another for unlawfully -^ Ik-inlen vs. I'resin. C. iS:. Ir. 
 
 appropriating the waters of a Co , <)« Cal. 35.
 
 520 LEGAL REMEDIES. [§ 329 
 
 III. Equitable Relief. 
 
 § 329. Iiijmiction Whei-e no Actiuil Dtiiuages are Shown. 
 
 — Where the act complained of is committed tinder a claim of 
 right, which if allowed to continue for a certain length of 
 time would ripen into an adverse title and deprive the plain- 
 tiff of his property, he is not only entitled to an action for 
 the vindication of his right but also for its preservation. 
 
 In actions for the diversion of water, where there is a clear 
 violation of an established right and a threatened continuance 
 of such violation, it is not necessary to show actual damages 
 or a present use of the water in order to authorize a Court to 
 issue an injunction and make it perpetual.^ A lower riparian 
 proprietor is not required to show any actual present damage 
 in order to procure an injunction to restrain a diversion of 
 the water. It is sufficient if the acts are such as if continued 
 might ripen into a right.- As was said in the case of Mott vs. 
 Ewiug by the Supreme Court of California^ "There are no 
 damages given by the judgment for an injunction. As to the 
 matter of finding upon the question of the nature and amount 
 of damages and injur}^ as set up in the complaint it may be 
 said that if the facts found show that it not prevented the con- 
 tinuous trespass of the defendant might by time ripen into a 
 right adverse to the plaintiff, that this is sufficient to entitle 
 her as a lower riparian proprietor to an injunction. When 
 the diversion, as in this case, is by one against the superior 
 right of another, and to the extent of depriving her of all the 
 water to which she is entitled, it is not necessary to prove 
 
 1 Brown vs. Ashley, i6 Nev. 311; Haggin, 69 Cal. 278; Moore vs. C. 
 
 II Am. & Kng. Enc. of Law, 855 h. W., 68 Cal. 154. 
 
 and note; Wel)b vs. The Portland 3 Crandall vs. Woods, 8 Cal. 136; 
 
 Mfg. Co., 3 Sumn. 197; Holsman American Co. vs. Bradford, 27 Cal. 
 
 vs. Boiling Spring B. Co., 14 N. J. 360; Gonld on Waters, p 214; 
 
 Ch. 343; Corning vs. Troy, I. & N. Moore vs. Water Works, 68 Cal. 
 
 F. Co., 34 Barb. 491-2; 40 N. Y. 146; Stanford vs. Phelps, 71 Cal. 
 
 191; 39 Barb. 326-7; Crossley & 249; Heilbron vs. Canal Co.^ 75 
 
 Sons vs. Lightowler, 3 Eq. Cas. Cal. 431; 7 Am. St. Rep. 183; Conk- 
 
 (L. B.) 296-8; Lyon vs. McLough- ling vs. Pacific Imp. Co., 87 Cal. 
 
 lin, 32 Vt. 425; Kerr on Injiinc- 296. 
 
 tions, 393 (34); 226 (2); Ang. on 3 90 Cal. 237. 
 Water-Courses, Sec. 556; Lux vs.
 
 §329,330] LEGAL UEMKDIES. 521 
 
 damages to entitle her to an injuuciiuu. If it is n.ii nev<.»ai> 
 to prove damages it is unnecessary to find them. The con- 
 tinuous wrongful diversion of the water, which if not stopped 
 might ripen into a right, was the thing from which injury not 
 capable of being accurately ascertained might in the future 
 result, and it was this which was sought to be and was en- 
 joined, as it appeared from the findings threatened and likely 
 to result. The plaintiff had the right to the use and enjoy- 
 ment of her property, and that is sufficient to have this right 
 protected against invasion by another." ' 
 
 ^'i'M\. Riparian Proprietor's Kii^ht t(» Injuiictioii for 
 Unlawful Diversion. — Equity by means of an injunction af- 
 fords to a riparian proprietor the proper remedy against the 
 wrongful diversion or obstruction of the water of a natural 
 water-course.^ A riparian proprietor owning to the center of 
 the stream is entitled to the aid of equity to prevent a diver- 
 sion of the waters from their natural chaimel although he 
 may have made no use of the water himself or have sustained 
 but small pecuniary damages; and this is so although the par- 
 ties diverting the water may be subject to heavy expense if 
 compelled to restore the water to its original channel.-' As we 
 said in the opinion of Wheatley vs. Chrisman,* "The neces- 
 sities of one man 's business cannot be the standard of another's 
 right in a thing which belongs to both."" Also a riparian 
 proprietor is entitled to an injunction to restrain IIk- threat- 
 ened unlawful diversion of the waters of a stream flowing 
 
 1 In the very late case of Spar- rnioii M. & M. Co. vs. Daii)^- 
 
 gur vs. Heard, 90 CaL 221; 27 Pac. licr^, 7 Saw. 450. 
 
 Rep. 198, the Court held that in -Lux vs. Ha^jjiu. 69 Cal. J55; 
 
 order to sustain an injunction re- Shively vs. Hume, 10 Ore. 76; 
 
 straininj^ the diversion of water Weis vs. ()rc;^on L & S. Co.. 13 
 
 belonf^rinf^ to the plaintiff it is not Ore. 490; 11 I'ac. Rep. 255. 
 
 necessary that any actual daina^^e '■* Ibid. .Xnj^cll on Water-Courses, 
 
 by reason of the rlivcrsion should Sec. 135; Could on Waters. ^304, 
 
 be alleged or proven or found, and 305; High on Injunctions. Sec. 795 
 
 a failure to find upon an issue as and authorities cited, 
 
 to the extent of actual damage is ^2i I'enn. St. 302. 
 
 immaterial if no damages are "'See alsti Mott vs. I-lwing, 9«> 
 
 granted. Cnl. 231: 27 l'"'"- K^l'- '04-
 
 522 LEGAL REMEDIES. [§ 330, 331 
 
 through his land without first establishing his right at law 
 by recovering a judgment in damages.^ So also a riparian 
 proprietor is entitled to restrain the unlawful diversion of the 
 waters of a stream adjoining his land, although the injury 
 caused by the diversion is incapable of ascertainment or of 
 being estimated in damages.^ 
 
 Upon this subject Mr. Justice Temple, in rendering the 
 opinion of the Supreme Court of California in the case of 
 Heilbron vs. Fowler Switch Canal Co., supra, said: " It does 
 not follow, because the injury is incapable of ascertainment or 
 of being computed in damages, and therefore only nominal 
 damages can be recovered, that it is trifling or inconsiderable. 
 It is doubtful if it can be properly said that there is any evi- 
 dence in the case which tends to show or that which was 
 offered would have tended to show that the injury to plaintiffs 
 was inconsiderable; that it was unascertainable, and in that 
 sense inappreciable, may be a good reason why an injunction 
 should issue." 
 
 § 331. Same. — Continued. — But where it is not shown that 
 the injury to a water-right is continuing or likely to be con- 
 tinued a judgment for damages may be sustained, but an in- 
 junction should not issue. -^ In an action by a lower riparian 
 owner to restrain the diversion of an upper owner of the waters 
 of a stream a decree ordering that the whole of the waters be 
 allowed to flow to plaintiffs lands in the natural flow, except 
 a given number of inches, is erroneous, since defendant 
 
 1 Lux vs. Haggin, 69 Cal. 265. thereby diverted the water of the 
 
 2 Heilbron vs. Canal Co., 75 Cal. stream from plaintiff's ditch, but 
 426; 17 Pac. Rep. 535; Moore vs. did not aver that the injury was 
 Clear Lake W. Co., 68 Cal. 150; continuing or threatened to be 
 Stanford vs. Felt, 71 Cal. 249; continued or was likely to be con- 
 Parke vs. Kilham, 8 Cal. 77; 68 tinned, it was held that the com- 
 Am. Dec. 310; Ferrea vs. Knipe, plaint was sufhcient for the recov- 
 28 Cal. 341; 87 Am. Dec. 128. ery of damages, but not to sustain 
 
 3Coker vs. Simpson, 7 Cal. 340, an injunction; audit was also held 
 
 where the complaint alleged that that the writ of injunction though 
 
 the defendant had dug a mining remedial must be based upon some 
 
 ditch above one previously con- equitable circumstance, 
 structed by the plaintiffs and had
 
 §331] LEciAL UKMHDIES. 
 
 )23 
 
 would thereby be deprived of any part of the water lor irri- 
 gation or other necessary purpose as riparian proprietor.* 
 The diversion from a water-course will not be restrained at 
 the suit of one who owns land located on another water-course 
 to which the former is an occasional tributary, unless such 
 diversion diminishes the quantity of water which would othcr- 
 wnse have flowed into the other water-course by a natural 
 channel and shortens the period of the natural flow: and it 
 will be restrained only as to such quantity and period. - 
 
 It is not necessary in order to maintain an action lor an in- 
 junction that the plaintiff" should be the owner of the land, 
 but a tenant for years of land borderinj; upon a natural stream 
 may enjoin the unlawful diversion of the waters thereof; the 
 injunction necessarily becoming inoperative at the termination 
 of his estate.^ 
 
 We have said that an action for an injunction may be main- 
 tained when but small pecuniary injuries have been sustained. 
 There may be an invasion of a right which will justify an ac- 
 tion, although actual damage is not shown, but a distinction 
 must be taken between those uses of water which are the ex- 
 ercise of the riparian proprietor's natural rights and those 
 which are not; in the former case actual damage must be 
 sho\vn, but need not be in the latter.^ 
 
 In an action to enjoin defendant from diverting the waters 
 of a creek the complaint alleged that the plaintiff's land was 
 valuable for producing grain by irrigation; that plaintiff and 
 his predecessors had appropriated the water by ditches, and 
 had enjoyed the uninterrupted use till defendant's wrongful 
 diversion; and that all the waters were necessary for irrigat- 
 
 1 Van Bibber vs. Hilton. 84 Cal. lan.ls „f the plaintiff not honk-riiiK 
 
 585; 24 Pac. Rep. 308. "1"'" t'"-' '^l'-'-'""' ""'' ^" '"" ":""'*-■ 
 
 SCreiL'hton vs. Kaweah C. 6^ Ir. thereon is inadmissible, lleinlen 
 
 Co.. 67 Cal. 221. vs. Fresno C. & Ir. Co.. 68 Cal. 35- 
 
 In an action by a riparian pro- '^ Ileilbron vs. l-'owler S. C. Co.. 
 
 prietor to restrain the diversion 75 Cal. 426; "7 I'a^'- l^^'P- 534. 
 
 of the water of a stream adjoining' ' Inion M. it M. Co. vs. !).».,«- 
 
 his lands, and to recover .lamaKc. be.K. 2 Saw. 250; Ante Seaiun 
 
 for a prior diversion, evidence of 32'- 
 injuries caused by the diversion to
 
 524 LEGAL REMEDIES. [§ 331, 332 
 
 ing plaintiff's land. It was held upon the above facts by the 
 Supreme Court of Montana that the complaint was sufficientlj'' 
 traversed b}- an answer denying on information and belief 
 plaintiff's ownership of the land, and denying that there was 
 a creek having a regular and continuous flow from defendant's 
 land to that of the plaintiff's; that grain could be grown on 
 the land; that defendant had prevented plaintiff from using 
 the waters of the creek to which he was entitled; or that 
 plaintiff or bis predecessors were ever the owners of all the 
 waters of the creek, or had ever appropriated the same.^ 
 
 § 332. Ai)})ropriator's Ri2,ht to Injuiictioii for Unlawt'ul 
 Diversion. — The diversion of a water-course or of water from 
 one rightfully entitled to the use thereof is a private nuis- 
 ance.2 A person who has acquired a right to a certain amount 
 of water flowing in a stream b}' virtue of an appropriation of 
 the same is entitled to protection against acts w^hich materially 
 diminish the quantity of the water to which he is entitled, or 
 materially deteriorates its quality to such a degree that it in- 
 jures it for the use to which he desires to apply it. Equity 
 affords the appropriate remedy against the wrong-doer by way 
 of an injunction against such wrong. -'' But whether a Court 
 
 1 Raymond vs. Winsette (Mon- 2 Park vs. Kilham, 8 Cal. 77; 
 
 tana), 31 Pac. Rep. 537. Tuohimne W. Co. vs. Chapman, 8 
 
 That the appropriator of water Cal. 392. 
 
 who constructs a dam across the ^Cole Silver Mg. Co. vs. Vir- 
 
 bed of a stream in public lands for ginia Gold Hill \V. Co. i Saw. 
 
 the purpose of raising the surface 470; Tiiolumne Water Co. vs. 
 
 of the water to a level which will Chapman, 8 Cal. 392; Phoenix 
 
 cause it to flow into his ditch or Water Co. vs. Fletcher, 23 Cal. 481; 
 
 canal does not thereby acquire Rupley vs. Welch, 23 Cal. 452; 
 
 such exclusive right in the bed Moore vs. Clear Lake W. W. Co., 
 
 and banks of the stream as en- 68 Cal. 146; Lake vs. Tolles, 8Nev. 
 
 titles him to restrain a subsequent 285; Barnes vs. Sabron, 10 Nev. 
 
 appropriator of the surplus water 217; Harris vs. Shontz, i Mont, 
 
 from tapping the stream for its 212; Gallagher vs. Base}^ i Mont, 
 
 diversion at a point above the dam 457; Barkley vs. Tieleke, 2 Mont, 
 
 and below the head of slack water 59; Fabian vs. Collins, 3 Mont 
 
 was held to be the rule in the re- 215; Schilling vs. Rominger, 4 
 
 cent case of Natoma AVater & Colo. 100; Keeney vs. Carillo, 2 
 
 Mining Co. vs. Hancock et al. N. M. 480; Crane vs. Windsor, 2 
 
 (Cal.), 35 Pac. Rep. 334. Utah, 248; Riverside Water Co. vs.
 
 § 332] 
 
 LE(JAL UKMIiMKS. 
 
 of equity will interfere to restrain act< claimed to be injuriuus 
 to the rights of a prior appropriator of water will depend en- 
 tirely upon the character and extent of the injury alleged, 
 whether it is irremediable in its nature; whether an action at 
 law would afford an adequate remedy: whether the i>arties are 
 able to respond for damages resulting from the injury, and 
 other considerations which ordinarily govern a Court of 
 equity in the exercise of its preventive process of injunction.' 
 
 Gage, 8q Cal. 410; 26 Pac. Rt-p. 
 8S9. 
 
 See Roberts vs. Arthur, 15 Colo. 
 456; 24 Pac. Rep. 922, where it was 
 held that when a party has ac- 
 quired a prior right to the water 
 of a natural stream by a valid ap- 
 propriation thereof to a beneficial 
 use another party cannot justifv 
 an interference with such prior 
 right by merely showing that he 
 is wholly dependent ujion the 
 same supply for water; but in an 
 equitable proceeding for some 
 purposes, even though not as a 
 bar to such prior right, it may be 
 proper for the defendant to allege 
 such dependence in connection 
 with other averments of the an- 
 swer; and it is not error to refuse- 
 to strike out such matter unless it 
 is made to appear that its reten- 
 tion in some way may have im- 
 properly affected the final decision 
 of the cause. 
 
 1 Atchison vs. I'eterson, 20 Wall. 
 
 507. 
 
 In the recent case of Sparlin vs. 
 Gotch' r (Oregon), 31 Pac. Re]> 
 399, the facts were that an e(|ui- 
 table action to enjoin rlcfen<lants 
 from stopping the natural flow of 
 a stream which had its source in a 
 spring on defendant's land, it aj)- 
 pearcd that for time immemorial 
 this spring harl been obstructed by 
 
 a beaver ilani causing a i)ool on 
 defendant's land which overflowed 
 and gave plaintiff his water sup- 
 ply. One of the defendants, a 
 lessee of the other, cut the dam to 
 drain the land, but repaired it on 
 being ordered t.. do so by his 
 lessor. t)n complaint of the plain- 
 tiff that his water supply was ob- 
 structed the dam was immediately 
 cut at the point indicated Ijv the 
 plaintiff, the exact height of the 
 original dam. It was held by the 
 Court that the natural flow of the 
 stream was not obstructed, and 
 that an injunction would not lie. 
 
 See also Jerret \s. Mahan, 20 
 Nev. 89. 
 
 In a recent case decicled bv the 
 Supreme Court of ()regi)n. Cole 
 vs. Logan, 33 Pac. Rep. 56.S, in 
 which an action was brought to 
 enjoin the defendant from divert- 
 ing the water from a certain creek 
 it a])peared from the testimony 
 that he settled ujtiiM his land in 
 1S70 and obtained a j)ateiit in 
 1880, and in the meantime had 
 built a dam and conducted the 
 water to u garden. In 1S73 he 
 conimence<l a new ditch extend- 
 ing abmit i\4 miles to a point 
 above the plaintiff's dam and did 
 not comjilele \intil m years liilcr. 
 Ilisonly e.xcuse for delay in com- 
 l)leling the extension was pccun-
 
 526 LEGAL REMEDIES. [§ 333 
 
 § 333. Nuisimce— Etiiiity will Restrain, When.— The own- 
 ers of a water ditch are entitled to have the waters flow therein 
 in its natural state when they claim such water by appropria- 
 tion, and its pollution or its unlawful diversion by strangers 
 is a private nuisance,^ and equity will restrain the continuance 
 of the same.'^ A private person may maintain an action 
 against a public nuisance if it is especially injurious to him or 
 his property.^ A party who continues a nuisance, but is not 
 the original creator of it, is entitled to notice that it is a 
 nuisance, and a request must be made that it may be abated 
 before an action will lie for that purpose, unless it appear that 
 he had knowledge of its hurtful character. Where the extent 
 of the nuisance is increased by such party the rule is other- 
 wise.'* 
 
 In the case of Grisby vs. Clear Lake Water Co.,^ the Court 
 
 said upon this subject: "Of course the plaintiff cannot re- 
 cover damages for a public nuisance so far as the injury is to 
 the public only, but if he suffered damage peculiar to him- 
 self, as by flooding his land and thereby depriving him of the 
 use of it, the nuisance is to that extent a private nuisance as 
 to him, for which he may recover damages, and we have no 
 doubt that the facts alleged in the complaint, if proven, are 
 suflScient to enable the plaintiff to maintain this action in that 
 
 respect."^ 
 
 In the recent case of the City of Fresno vs. Fresno Canal & 
 Irrigation Co.,'' the facts were that the city brought an action 
 
 iary inabilit}'. It was held that Blanc vs. Klumple, 29 Cal. 156; 
 
 such excuse was not available, and Grisby vs. Clear Lake Water Co., 
 
 that he did not complete the 40 Cal. 396. 
 
 work within such reasonable time -^ Grisby vs. Clear Lake Water 
 
 as to enable him to hold the rights Co., 40 Cal. 396; see also Hudson 
 
 acquired under the original ditch. vs. Doyle, 6 Cal. loi; Bear River 
 
 See also McPhail vs. Forney Co. vs. Boles, 24 Cal. 354; Court- 
 
 (Wyo.) 35 Pac. Rep. 773. wright vs. Bear River Co., 30 Cal. 
 
 1 Crane vs. Winsor, 2 Utah 248; 573; Blood vs. Light, 31 Cal. 115; 
 Parke vs. Kilham, 8 Cal. 77; Miss. & Mo. Ry. Co. vs. Ward, 2 
 Tuolumne W. Co. vs. Chapman, 8 Black, 485. 
 
 Cal. 392; But see Union M. & M. 5 40 Cal. 396, 406. 
 
 Co. vs. Crary, 25 Cal. 504. *! Citing Blanc vs. Klumpe, 29 
 
 2 Ibid. Cal. 157. 
 
 3 The Mining Debris Case, 9 ^(Cal.) 32 Pac. Rep. 943. 
 
 Sawyer, 441; 18 Fed. Rep. 801;
 
 §333,334] LKGAI. REMEDIES. 
 
 • >!'< 
 
 against the canal company to enjoin the operatiou .m ii-. ..nial 
 along one of plaintiff 's streets and to abate it as a nuisance. 
 The trial Court found that the said canal could be constructed 
 below the surface of the street and covered up so that it would 
 not be an obstruction to the street, and rendered judgment in 
 favor of the plaintiff. The Supreme Court on appeal reversed 
 the judgment, and held that the finding: " Said canal, where 
 it traverses the streets of said cit^' is a nuisance per jr," was 
 inconsistent with the finding " that said canal can be con- 
 structed below the surface of the street and covered up in such 
 a manner that the surface of the street can be restored to its 
 former condition, so that it will not be an obstruction to the 
 free use and enjoyment and travel of said street."' 
 
 § 33-1:. Trespass— Equ it. V will Itostniin When.— The foun- 
 dation of the jurisdiction in a Court of Equity to issue an in- 
 junction in the aid of an action for trespass is the probability 
 of irreparable injury; the inadequacy of pecuniary compensa- 
 tion or the prevention of a multiplicity of suits. It is not 
 sufficient that the complaint alleges that the injur}- would be 
 irreparable. The plaintiff must affirmatively show how and 
 why it would be so, otherwise the extraordinary remedy b>- 
 injunction ought not to be allowed. An injunction will not 
 be granted to restrain a trespass unless the trespasser is insol- 
 vent or the injury irreparable and destructive to plaintiff's 
 estate to its very nature and substance, and such as call for 
 immediate relief. There must be something particular or 
 special for which a Court of law cannot afford adetjuate re- 
 lief.2 
 
 ISee also People vs. Stevens, 62 1 Paijje, 97; Cooper vs. Ilainiltoii, 
 
 Cal. 209; McCreary vs. Beaudry, S Blackfoot, 377; Cowlcs vs. Shaw, 
 
 67 Cal. 120; 7 Pac. Rep. 264; Mc- 2 Clark, 496; Rankin vs. Charless. 
 
 Menomy vs. Baud, 87 Cal. 134; 26 19 Mo. 490; Malvaiiy vs. Kennedy, 
 
 Pac. Rep. 795; Drew vs. Hicks 26 Penn. 44; Schurnieir vs. St. 
 
 (Cal ) 35 Pac. Rep. 563. Paul Ry. Co , 8 Minn. 113; Whit- 
 
 2Waldron vs. Marsh, 5 Cal. 119; man vs. St. Paul Ry. Co., 8 Minn. 
 
 Wells, Parj<o & Co. vs. Dayton, 11 116; Justices vs. Crosby, 5 Jones 
 
 Nev. 169; Riler vs. Patch, 12 Cal. \\i\. 254; Holster vs. Ciitiiline. 10 
 
 499; Branch Turnpike Co. vs. Sup- Ind. 117; Stewart vs. Chew, \ 
 
 ervi-sors of Yuba Co., 13 Cal. 190; JMand Ch. .j.jo. 
 New York Printinjj Co. vs. Pitch,
 
 528 LEGAL REMEDIES. [§ 335-337 
 
 § 335. Mandiimiis— When Action will Lie.-— As will be 
 seen by reference to a previous section a ditch company- 
 organized for the purpose of furnishing consumers with 
 water for beneficial uses is bound to supply the demands of 
 bona fide customers when they tender the proper charges 
 therefor, when the water can be spared without injury to the 
 prior rights of others.^ And under the circumstances above 
 stated the authorities hold that a ditch company carrying water 
 for general purposes cannot arbitrarily refuse to supply an 
 actual bona fide consumer; and that a writ of mandamus is the 
 appropriate remedy to compel the delivery of water. ^ 
 
 § 336. Action to Quiet Title.— An action will lie to quiet 
 title to a water right acquired by appropriation made by means 
 of a dam and ditch; and to the full flow of the stream to the 
 head of the ditch. And a complaint alleging an appropriation of 
 the water by plaintiff for irrigation and domestic purposes, and 
 charging an adverse entry upon the stream and diversion of 
 the water by defendants, and that the claim of the defendants 
 is entirely subject to plaintiff's claim and title, and is wholly 
 invalid'and without right as against the appropriation of said 
 water by plaintiff, states a cause of action. And it is not 
 necessary, in order to maintain an action to quiet title to a 
 water-right, that there should be an actual interference with 
 the plaintiff's right. The assertion of an adverse claim is all 
 that is required.-^ 
 
 § 337. Eiiuity has Power to Determine Extent of Right.— 
 
 A Court of Equity has power to ascertain and determine as 
 between several appropriators of the w^ater of a natural stream 
 the extent of the respective rights of each in the waters 
 therein flowing, to regulate the use thereof in such a way as 
 to maintain equality of rights in the enjoyment of the common 
 
 ISee ante Section 317 and an- Co., 77 Cal. 399; Peregoy vs. Sel- 
 
 thorities cited. lick, 79 Cal. 568; 21 Pac. Rep. 966; 
 
 2 Ibid. See Combs vs. Agricul- Harris vs. Harrison, 93 Cal. 676; 
 
 tural Ditch Co., 17 Colo. 196; 28 29 Pac. Rep. 325; Pacific Yacht 
 
 Pac. Rep. 966, and authorities. Club vs. Sausalito Bay W. Co. 
 
 SvStandard vs. Round Valley W. (Cal.), 33 Pac. Rep. 322.
 
 §3^7J LEGAL REMEDIES. 529 
 
 property, and to enjoin a subsequent appropriator from inter- 
 fering with the rights of the prior appropriators as ascertained 
 and established by the Court.' 
 
 The Court has power to prescribe the method to be used to 
 measure the water.-' But it was held by the Supreme Court 
 of Oregon that equity will not adjudge a question of priority 
 of title of a corporation to rights and franchises for irrigation 
 purposes in order to enable it to issue bonds to continue and 
 complete the work on a presumption of possible intent of de- 
 fendants to disturb the same, there having been no overt act 
 or disturbance, the corporation not having diverted the water 
 nor done any work comparatively of construction.-'' 
 
 iFrey vs. Lowden, 70 Cal. 550; W. Co., 95 Cal. 490; 30 Pac. Rep. 
 
 1 1 Pac. Rep. 83S; Lorenz vs. Jacobs, 577. 
 
 3 Pac. Rep. 659; Combs vs. Slay- 2 Tolman vs. Casey, 15 Ore. 83. 
 
 ton, 19 Ore. 99; 26 Pac. Rep. 661; 13 Pac. Rep. 669. 
 
 Riverside Water Co. vs. Gage, 89 3 Umatilla Ir. Co. vs. Umatilla 
 
 Cal. 410; 26 Pac. Rep. 889; Alham- Imp. Co., 22 Ore. 366; 30 Pac. Rep. 
 
 bra A. & W. Co. vs. Richardson 30.
 
 PART TWO. 
 
 SIAIE m TERRITORIAL LAWS, 
 
 CHAPTER XII. 
 Laws Governing Irrigation in California. 
 
 I. IRRIGATION IN GENERAI.. 
 Section.— 
 
 338. Contents of Part Second, also 
 
 of present chapter. 
 
 339. Irrigation in California. 
 
 340. Irrigation laws of California. 
 
 — In general. 
 II. Sf ATUTORY 1,AWS ADOPTED BY 
 CIVIL CODE OF CAI.IFORNIA. 
 
 341. Rights to water may be ac- 
 quired by appropriation. 
 
 Appropriation must be for 
 
 beneficial use. 
 Point of diversion may be 
 
 changed. 
 Water may be turned into 
 
 and conveyed by natural 
 
 channels. 
 First in time, first in right. 
 
 346. Rule as to notice of appro- 
 
 priation. 
 
 347. Diligence in diverting water. 
 
 348. Completion defined. — Doc- 
 
 trine of relation. 
 
 349. Forfeiture.— Rights of pres- 
 
 ent claimants. — Duty of re- 
 corder. 
 
 342. 
 343- 
 344. 
 
 545- 
 
 Section. — 
 
 350. Rights of riparian proprie- 
 
 tors. 
 
 351. Summary of above rules. 
 
 352. An Act to promote irrigation. 
 
 353. An Act to fix the rates at 
 
 which water shall be sold. 
 
 III. REGULATION AND CONTROL 
 
 OF DITCH COMPANIES. 
 
 354. Appropriated water a public 
 
 use. 
 
 355. Same. — Powers and duties of 
 
 county supervisors. 
 
 356. Eminent domain. 
 
 357. — Same. — Authorities constru- 
 ing code. 
 
 IV. CALIFORNIA IRRIGATION DIS- 
 
 TRICT LAW. 
 
 358. The " Wright Law." 
 
 359. Organization of irrigation dis- 
 
 tricts. 
 
 360. Petition to Board of Super- 
 
 visors. — What to contain. — 
 Lands that must be in- 
 cluded.— Notice of election. 
 — Ballots what to contain.
 
 IRRIGATION IN CALIFORNIA. 
 
 531 
 
 Section.— 
 
 361. Election.— Statute of limita- 
 
 tion. — Lands to be in only 
 one district. — Election pre- 
 cincts. — Number of direct- 
 ors. 
 
 362. Time for election and officers 
 
 to be elected. 
 
 363. District elections. — Posting 
 
 of notices. — Duties of elec- 
 tion board. — Time of vot- 
 ing. — Manner of certifying 
 to returns. — Canvassing re- 
 turns. 
 
 364. Organization. — Powers and 
 
 duties of the board. — Ratio 
 of distribution of water. 
 
 365. Meetings of board.— Acquisi- 
 
 tions of land and water 
 rights. — Dams and reser- 
 voirs. 
 
 366. Title to property acquired.— 
 
 Powers of board in suits at 
 law or in equity. 
 
 367. Issuance of bonds.— Special 
 
 elections for.— Bonds how 
 paid. — Assessments. 
 
 368. Board to sell bonds. 
 
 369. Bonds how to be paid. 
 
 370. Assessment of real property. 
 
 371. Levying of assessments to 
 
 pay interest on bonds. 
 
 372. Lien of assessment. 
 
 373. Collection of assessments, 
 
 how made.— Delinquent as- 
 sessments. 
 
 374. Sale of property.— Collector's 
 
 certificate. 
 
 375. Time and manner in which 
 
 property may be redeemed. 
 
 376. Deeds.— Validity of sale.— 
 
 Time and manner of settle- 
 ment. 
 
 377. Payment of coupons, pay 
 
 ment and redemption 
 bonds. 
 
 of 
 
 Section.— 
 
 378. Contracts for construction of 
 
 ditches and canals. 
 
 379. Payment of claims. — Pay- 
 
 ments from construction 
 fund. 
 
 380. Powers of board. 
 
 381. Salary of directors.— Officers 
 
 not to be interested in con- 
 tracts.- Special elections. 
 
 352. Limit of power of board to 
 
 incur indebtedness. 
 
 353. Apportionment of water. — 
 
 Duty of directors. 
 
 384. Act not to effect navigation 
 
 or mining industry. 
 
 385. Act not to effect existing laws 
 
 or rights acquired. 
 
 386. Reduction of bonded in- 
 
 debtedness, election there- 
 for. 
 
 387. An Act to provide for the 
 
 leasing of water for mechan- 
 ical purposes by irrigation 
 districts. 
 
 388. Disorganization and abandon- 
 
 ment by irrigation districts. 
 
 V. CONSTRUCTION OF CAI.IHORNIA 
 IRRIGATION DISTRICT LAW. 
 
 389. Nature of irrigation districts 
 
 as organized under the Act. 
 
 390. Constitutionality of the 
 
 " Wright Law." 
 
 391. Same.— Authorities. 
 
 392. Proceedings for confirmation 
 
 of organization. 
 
 393. Proceedings for confirnuilioii 
 
 of bonds. 
 •^9.1. Proceedings to inchnle and 
 exclude territory. 
 
 395. Same.— Continued. 
 
 396. Dissolution of irrigation dis- 
 
 tricts.
 
 532 IRRIGATION IN CALIFORNIA. [<^ 338, 339 
 
 I. Irrigfitioii in General. 
 
 § 338. Contents of Part Second, also of Present Chap- 
 ter. — Part Second of this volume will be devoted to a synopsis 
 and abstract of the statutory laws in force in the various 
 States and Territories governing water rights in their re- 
 spective jurisdictions; and to a discussion of the decisions of 
 the highest Courts construing those statutory enactments. 
 
 The present chapter will be devoted to the State of Cali- 
 fornia and the rules and regulations governing water rights 
 in that State. 
 
 § 339. Irrigation in California. — We shall devote con- 
 siderable space to the discussion of the subject of irrigation 
 in California, first, because the laws of that State are looked 
 upon as an example and followed as a model (a precedent to 
 a great extent) b}^ the laws of all the other States and Terri- 
 tories of the arid region; and second, because the State of 
 California, constituting a large and important part of the field 
 where the art of irrigation is practiced, is also the great 
 model for the rest of the arid region regarding the practical 
 development of its water supply, and in the use of water as 
 applied to the purpose of irrigation. Reports upon the con- 
 dition of that State show that California is utilizing all of 
 her water resources and employing all the methods peculiar 
 to other localities. Irrigators are using surface waters from 
 the streams, drainage water, sewage water, water from sub- 
 terranean courses, water from artesian wells, from tunnels 
 run into mountain sides, and water impounded in reser- 
 voirs filled by large or small drainage areas. The present 
 California idea is that water is gold, and it is hunted and 
 appropriated with as much ardor as the precious metal itself 
 was in the earlier times. California is not only ahead in 
 the development of her water supply and the number, size 
 and boldness of design of her irrigation works, but that 
 State is also superior to all other States and Territories of 
 the arid west in her method of applying and utilizing the 
 water. She is making great advancement in this depart- 
 ment of her development, and reducing to an exact science
 
 §339,340J IRRIGATION IN <!ALIKORNIA. 533 
 
 the amount of water that can be applied to a tract of land at 
 certain intervals with the best results both in quantity and 
 quality of crops, and thus rapidly doing away with the waste- 
 ful methods of the past. This advancement was rendered 
 possible in that State by the existing extremes— the econom- 
 ical uses of water rendered necessary by scanty supply and a 
 dense population in some localities; and in others its lavish 
 use made easy by the presence of a great volume of water 
 ready for diversion upon the land needing irrigation. 
 
 It IS .safe to .say that California owes the larger portion of 
 the prominence which it occupies to-day to the results of irri- 
 gation. The localities where irrigation has been practiced 
 the longest and most extensively have gained the widest repu- 
 tation outside of the State. Almost every step taken in 
 advance in California's prosperity since the subsidence of 
 the first great rush for gold has been anticipated by new and 
 more extensive irrigation developments. It is no exaggera- 
 tion to say that were it not for irrigation the fame of Cali- 
 fornia would be confined to the product of her mines, and 
 she would not have more than half her present population. 
 Without irrigation the major portion of the State, which is 
 to-day thickly populated and in the highest degree productive, 
 would still be in its original barren condition. 
 
 §340. Irrigation Laws of Csiiiforiiia. -In (iiMU'ial.— The 
 
 methods of practicing the art of irrigation in California are 
 many and diverse. We can also say the same of the 
 laws regulating and controlling its practice. Its laws permit 
 the acquisition and retention of water-rights by means of all 
 the known systems, which in turn are regulated and controlled 
 by almost every principle of law that applies to that subject. 
 One can acquire title to water-rights by means of the prin- 
 ciple of prior appropriation, whereby he diverts the water 
 from its natural channel and apj^lies it to irrigating the soil or 
 to some other beneficial purpose. The riparian proprietor is 
 protected in his rights in and to the waters of the stream or 
 lake flowing over or adjoining his land, and greater license is 
 allowed him than was permitted under a strict construction 
 of the comnKjM law rules in his being perjnitted to divert a
 
 534 IRRIGATION IN CALIFORNIA. [§ 340, 341 
 
 reasonable amount of water for the purpose of irrigation. 
 Rights acquired under the civil, Spanish and Mexican laws, 
 before California was transferred to the United States, are 
 protected to the fullest extent. Also at different times 
 statutory enactments have been passed by the legislature 
 regulating and controlling the uses of water. And last by 
 statutory enactments in 1887, the "District System," familiarly 
 known as the " Wright Law," was created, which is without 
 doubt the most famous irrigation law in the United States. 
 
 II. Statutory Ljuvs Adopted by Civil ('ode of California. 
 
 § 341. Rights to Water Jiuiy be Acquired by Appropria- 
 tion. — On the first of January, 1873, the Civil Code of Cali- 
 fornia went into effect and contained the following provisions 
 for the acquisition of water-rights, which we will take up and 
 discuss singly. 
 
 " Sec. 1410. The right to the use of running water flowing 
 in a river or stream or down a canon or ravine may be ac- 
 quired by appropriation." 
 
 This section contains a mere statutory declaration of the 
 rule which had been previously settled by the Courts to be 
 the law concerning the appropriation of water from streams 
 in the State. ^ In the absence of legislation upon the sub- 
 ject in the early history of the State it became necessary for 
 those claiming rights by virtue of an appropriation to depend 
 wholly upon the Courts in case of any controversy regarding 
 them.2 And, fortunately for those claiming such rights, the 
 Courts, by a long line of decisions, before any direct statutory 
 enactments upon the subject, under the peculiar condition of 
 the country and needs and necessities of the people, held 
 that rights to the water might be acquired by prior appro- 
 priation.^ 
 
 I As we have seen in Chapter growing out of the mining in- 
 
 IV of this Volume, the law of dustry, which for a long time was 
 
 private appropriation of water, the principle industry in the State 
 
 peculiar to States and Territories of California. 
 
 of the arid west, took its begin- 2 See ante Chapter IV Sec. 107. 
 
 ning from the very necessities 3 See Hoffman vs. Stone, 7 Cal.
 
 §342,343] IRRKiATION IN CALIFORNIA. 535 
 
 § 342. Appropriation must be for BtMieficial I*urpose.— 
 
 "Sec. 141 1. The appropriation must be for sonic useful or 
 beneficial purpose, and when the appropriator or his successor 
 in interest ceases to use it for such a purpose the right ceases." 
 
 The doctrine of this section has also been established to 
 mean that the beneficial purpose may be irrigation, mining, 
 milling, manufacturing, agricultural, horticultural, domestic, 
 municipal or any other useful or beneficial object; but there 
 must be some actual positive beneficial purpose existing at 
 the time or contemplated in the future as the object for which 
 the water is to be utilized; otherwise no prior and exclusive 
 right to water can be acquired, no matter how elaborate and 
 complete may be the physical structures by which the appro- 
 priation is efifected.^ 
 
 § 343. Point of Divei*sion may be thanj^ed.— 
 
 " Sec. 141 2. The person entitled to the use may change the 
 place of diversion if others are not injured by such change, 
 and may extend the ditch, flume, pipe or aqueduct by which 
 the diversion is made to places beyond that where the first use 
 was made."- 
 
 49; See "Arid Region Doctrine" l See McKinney vs. Smith, 21 
 
 Ante Chapter IV. Cal. 464, and authorities cited. 
 
 As to rights of appropriators in .\nte Sections i5"-i53- 
 
 water generally, see ante Chap- In the case of Barrows vs. Fox, 
 
 ters VII & VIII. 98 Cal. 63, it was held that the 
 
 The Section above quoted has extent of an appropriation of 
 
 been construed to mean that per- water is limited, not by the quan- 
 
 colating waters collected or tity of water diverted, but by the 
 
 gathered in a stream running in a (juantity which is or which maybe 
 
 defined channel constitutes prop- applied by the appropriator to a 
 
 erty or incidents of property beneficial use; and as to any sur- 
 
 which may be acquired by grant, plus the riparian proprietor below 
 
 express or implied or by appro- the point of diversion has a right 
 
 priation; and when rights in such to demand that it should How in 
 
 percolating waters are acquired the stream as it had l)ecn ac- 
 
 the owner cannot be divested customed to How. 
 
 thereof by the wrongful acts of 2 Sec ante Section 248 and 
 
 another. Cross vs. Kitts, 69 Cal. authorities cited. Also sec Deer- 
 
 217. See also Watterson vs. Sal- ing's Civil Code of California, 
 
 dunbehere, 35 I'ac. Rep. .132- ^ec. 1112, ..n<l authorities cited.
 
 536 IRRIGATION IN CALIFORNIA. [§343-345 
 
 The authorities hold that an appropriator may increase the 
 amount of water used so long as the rights of others are not 
 interfered with.' A person entitled to divert a given quan- 
 tity of water from a stream may take it at stny point on said 
 stream and may change the point of diversion at pleasure, 
 provided the- rights of others be not injuriously affected. Or 
 in other words the right to divert a certain quantity of w^ater 
 having been once acquired the manner and place of taking it 
 cannot be questioned by those not injured thereby. ^ 
 
 § 344. Water may be Turned into and Conveyed by Nat- 
 ural Channels.— 
 
 " Sec. 1413. The water appropriated may be turned into 
 the channel of another stream and mingled with its waters 
 and then reclaimed; but in reclaiming it the water already 
 appropriated by another must not be diminished." 
 
 The using of a natural stream for a ditch is a very common 
 practice in California; and it is sanctioned by the above statute 
 and the decisions of its Courts.'" 
 
 § 345. First in Time, First in Right.— 
 
 "Sec. 1414. As between appropriators the one first in time 
 is the first in right." 
 
 This rule is, as we have seen in our previous discussions, 
 the great basis by which the rights of appropriators are de- 
 termined. The waters of a stream which are not embraced 
 in the amount of an appropriator's claim may be appropriated 
 by others either above or below him; and among the suc- 
 cessive appropriators on the stream each is in the position of 
 a prior one to all who are subsequent to himself.* The sur- 
 
 1 Ibid. indefinite and uncertain to sustain 
 
 Kidd vs. Laird, 15 Cal. 161; the judgment restraining the di- 
 
 Butte T. & M. Co. vs. Morgan, 19 version. Stanford vs. Felt, 71 
 
 CaL 609; Junkens vs. Bergen, 67 CaL 249. 
 
 Cal. 267. See ante Section 246. 
 
 3 In an action to restrain the di- * See ante Section 173. 
 
 version of water from a certain The surplus water of a stream 
 
 creek the findings on the issue as after a prior appropriation may 
 
 to whether the water, after its be taken by another appropria- 
 
 diversion was returned to the bed tion, and the second appropriator 
 
 of the creek or not, were held too will have a paramount right to
 
 §345,346] IRRIGATION IN CALIFORNIA. r)37 
 
 plus water may be appropriated by t)thers, ami iiki\ .iii>i- 
 either from an appropriation of a part of the water contiiuiously 
 or an intermittant appropriation of the whole or part of the 
 water at stated intervals. The rule a.s to the rights of an 
 appropriator of the surplus are applicable alike to either 
 case.^ And those who hold prior rights above or below can 
 in no way change or extend the use of the water appropriated 
 by them to the prejudice of the subsequent appropriator, but 
 they are limited to the rights enjoyed by them when he se- 
 cured his own. The amount of water wliich a prior appro- 
 priator is entitled to use— that is, the extent of the right orig- 
 inally acquired by him — is a question of fact for the jury. "^ 
 Yet the right of the first appropriator is not determined by a 
 comparison of the value of the water to him and the subse- 
 quent locators.^* Where different persons separately appro- 
 priate the waters of a stream, and are severally nsing the 
 same under certain regulations as to the time and manner of 
 such use, they are tenants in common, and each of them may 
 maintain an action to enjoin a trespasser from diverting any 
 portion of the water thus appropriated.^ 
 
 §340. Rule as to Notico ol" Appiop'is'^'^*" ~- 
 
 "Sec. 1415. A person desiring to appropriate water nuist 
 post a notice in writing in a conspicuous place at the point ot 
 intended diversion, stating therein: 
 
 "I. That he claims the water there flowing t<j the extent 
 of (giving the number) inches, measured under a four-inch 
 pressure. 
 
 " 2. The purposes for which he chiims il, and llie phiee ol 
 
 intended use. 
 
 use all the waters which are not ' Kytle Creek \V. Co. vs. I'enlew. 
 
 required for the special jiurposes 65 Cal. .UJ. See also subject Ten- 
 
 of a prior appropriator. McKiii- ants in Common, ante Chapter 
 
 ney vs. Smith, 21 Cal. 374- 1>^. Sections y>i-y^b. See also on 
 
 ISniith vs. O'Hara. 4.-^ Cal. 37>- Keiitral construction of the Sec 
 
 2 Nevada W. Co. vs. l>owell. .it «'"". Hrown vs. .Mullin. O5 Cal. 89; 
 Q^] jog Juiikans vs. UerKin. (.7 Cal. 267; 
 
 3 Weaver vs. Knreka Lake Co . Lcdu vs. .Jim Vet Wa. 67 Cal. 346; 
 J5 eal. 271. I'rey vs. Lowd.-n, 7" Cal. sso.
 
 538 IRRIGATION IN CALIFORNIA. [§ 346-348 
 
 " 3. The means by which he intends to divert it, and the 
 size of the flume, ditch, pipe or aqueduct in which he in- 
 tends to divert it. 
 
 "A copy of the notice must, within ten days after the 
 notice is posted, be recorded in the office of the recorder of 
 the county in which it is posted." 
 
 No particular form of notice is required, and all that is 
 necessary is that it should be sufficient to put a prudent man 
 on inquiry,^ and to this end its language must be liberally 
 construed.^ 
 
 § 347. Diligence in Diverting Water. — 
 
 ' ' Sec. 1416. Within sixty daj's after the notice is posted the 
 claimant must commence the excavation or the construction of 
 the works in which he intends to divert the water and must 
 prosecute the work diligently and uninterruptedly to comple- 
 tion, unless temporarily interrupted by snow or rain." 
 
 After the notice of intention to appropriate the water is 
 given the works by which the appropriation is to be effected 
 must be actually commenced, and then must be prosecuted 
 with all due and reasonable diligence until completed in 
 order to perfect the exclusive right to the use of water which 
 is obtained through a valid appropriation.^ Whether the work 
 has been begun and prosecuted with diligence is a question 
 of fact for the jury, to be determined by all of the circum- 
 stances of each particular case.^ 
 
 § 348. Completion Defined. — Doctrine of Relation. — 
 
 " Sec. 141 7. By ' completion ' is meant conducting the waters 
 to the place of intended use." 
 
 1 Kimball vs. Gearliart, 12 Cal. stream, as provided by the civil 
 27; ante Section 157-158 and an- code, section 1415, and proceeds, 
 thorities cited. as required by statute to perfect 
 
 2 Osgood vs. El Dorado Water his rights, was held to be the rule 
 Co., 56 Cal. 571, 579. in the case of Wells vs. Mantes, 
 
 A person by actual diversion 34 Pac. Rep. 324. 
 
 and appropriation of the water of 3 Osgood vs. El Dorado Water 
 
 a stream acquires the right to its Co., 56 Cal. 571, 581. 
 
 use as against a claimant who sub- ■! Ibid. See Ante Sections 160- 
 
 sequently posts notices on such 161.
 
 §348-350] IHKKiATION IN i\\LlF(»K.NI.\. 539 
 
 " Sec. 1418. By compliance wnii the above ruk-s the claim- 
 ant's right to the use of the water relates back to the time 
 when the notice was posted." 
 
 The adoption of this section settled all controversies in the 
 State as to what point or step the rights of an appropriator 
 related in the necessary series of acts required to complete 
 an appropriation.' 
 
 §349. Forfeiture.— Ki!i:h<s of rrescnt Claiiiiant. -Duty 
 of Recorder. — 
 
 " Sec. 1419. 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." 
 
 "Sec. 1420. Persons who have heretofore claimed the right 
 to water and who have not constructed works in which to di- 
 vert it and who have not diverted nor applied it to some use- 
 ful purpose must, after this title takes effect, and within 
 twenty days thereafter, proceed as in this title provided, or 
 their right ceases." 
 
 " Sec. 1421. The Recorder of each county must keep a book, 
 in which he must record the notices provided for in this 
 title." 
 
 § 350. Ui«;hts of Itiparian l^'oprietoix. — 
 
 " Sec. 1422. The rights of riparian proprietors are not 
 affected bj- the provisions of this title." 
 
 The above section was repealed by an Act of the LeK'^l'i- 
 ture, approved March 15, 1887.^ 
 
 Sections i and 2 of the Act are as follows : 
 
 "Sec. I. Section fourteen hundred and twenty-two of title 
 eight of part four of division second of an act entitled ' An 
 Act to establish a civil code,' ajjpnned March the twenty- 
 first, eighteen hundred and seventy-two, is hereby repealed; 
 provided, that the repeal of this section shall not in any 7itiy in- 
 terfere 7uith any rights already vested. 
 
 " Sec. 2. This act shall take effect from and alter its pas- 
 sage." 
 
 l.See doctrine of rtlalioii Anli -Sot- Sl;itiiti-s iSS;, j), ilj. 
 
 Section 167.
 
 540 IRRIGATION IN CALIFORNIA. [§ 350 
 
 From the above it is evident that prior and up to the date 
 of the repealing act riparian rights existed and still exist in 
 California where those rights were acquired prior to the re- 
 peal of section 1422.' 
 
 Subsequent acts of the legislature cannot authorize officers 
 to enter upon private water courses and to disturb the own- 
 ers thereof in their use and enjoyment.^ 
 
 In a very recent case decided by the Supreme Court of Cali- 
 fornia it was held that the common law rules as to riparian 
 rights are so far modified that an upper riparian proprietor 
 has the right to a reasonable use of the water of a natural 
 stream for irrigating the riparian land where irrigation is 
 necessary, although such use may appreciably diminish the 
 flow down to the lower riparian proprietor; but he does not 
 have the right to absorb all the water of the stream so as to 
 allow none to flow down to the lower riparian proprietor. 
 And it was also held in the same case that the question as to 
 what was a reasonable use of the waters of a natural stream 
 for irrigating the land of a riparian proprietor is a question of 
 fact, depending upon the circumstances appearing in each 
 particular case.-^ 
 
 1 Riparian proprietors have a Cal. 255; Learned vs. Tangeman, 
 
 usufruct in the waters of a stream 65 CaL 334; Creighton vs. Kaweah 
 
 as it passes their lands. Pope vs. Canal & Ir. Co., 67 Cal. 221; Hein- 
 
 Kinman, 54 Cal. 3; Hale vs. Mc- len vs. Fresno Canal & Ir. Co., 
 
 Lea, 53 Cal. 578; Hanson vs. Mc- 68 Cal. 35; Alhambra Addition W. 
 
 Cue, 42 Cal. 303; Ellis vs. Tone, Co. vs. Richardson, 72 Cal. 598. 
 
 58 Cal. 289; Anaheim W. Co. 3 Harris vs. Harrison, 98 Cal. 676; 
 
 vs. Semi-Tropic W. Co., 64 Cal. 29 Pac. Rep. 325. 
 
 185. It was held in the recent case 
 
 SCharnock vs. Rose, 7oCal. 189; of Healy vs. Woodruff, 97 CaL 
 
 As to general rights of riparian 264, that an appropriator of water 
 
 proprietors in California see Swift on the public lands does not b_r 
 
 vs. Goodrich, 70 Cal. 103; Barnes becoming a riparian owner lose 
 
 vs. Marshall, 68 Cal. 569; Weider- his right to acquire more of the 
 
 kind vs. Tuolumne W. Co., 65 water by a subsequent appropria- 
 
 Cal. 431; Bliss vs. Johnson, 76 tion or enlargement of his ditch, 
 
 Cal. 597; Montgomery vs. Lock, but that he may take all of the 
 
 71 Cal. 75; Heilbron vs. Fowler water of the stream if he is the 
 
 Switch Canal Co., 75 Cal. 246; first or prior appropriator and 
 
 People vs. Gold Run D. & M. Co., there is no other riparian owner 
 
 66 Cal. 138; Lux vs. Haggin, 69 at the time of the appropriation or
 
 §351,352] IRRIGATION IN <A M I'l •KNIA. 541 
 
 § 351. Siimmar.v of Ahox- Kuh-s. -As will be seen iromau 
 examination of the above sections, they are very general and 
 simply embody the mles in statutory language, which the 
 Courts, long prior to their enactment, had decided to be neces- 
 sary for the appropriation of water from natural streams as 
 arising from the needs and necessities of tlie people and tor 
 the greatest development of the country. Their language 
 being general the rules laid down are not restricted to any 
 one class of streams, and hence must be construed as apply- 
 ing to all. The rules that we have laid down in a previous 
 chapter^ upon the subject of appropriation ot the water of 
 streams upon the public domain are applicable under the 
 foregoing sections. The language of the statute is more defi- 
 nite than the rules laid down by the decisions of the Courts. 
 As, take for example, the decisions say that a person attempt- 
 ing to make an appropriation of the waters of a stream must, 
 after he has posted his notice, within a reasonable time, com- 
 mence the constructiow of his works for the diversion; while 
 the statute limits the time to commence the omstniction to 
 sixty days after having posted his notice. 
 
 § 352. An Act to Promote lrrii;alioii.— In addition to the 
 above general provisions of the Civil Code the legislature of 
 California from time to time has enacted special laws upon the 
 subject of irrigation, and among these laws was one approved 
 April I, 1872,2 entitled, "An Act to Promote Irrigation," 
 and the object of this law is best described in the first section 
 of the Act which is as follows: 
 
 "Sec. I. Whenever the owners of any body of lands sus- 
 ceptible of one mode of irrigation or drainage desire to irrigate 
 or drain the same they may present to the board of supervisors 
 of the county in which the lands or the greater jjortion 
 thereof are situated, at a regular meeting of the board, a i)eti- 
 tion setting forth that they cUsin- to adopt measures to irrigate 
 
 enlargement of the ditch, ami ' Atilc fhajjter VI. 
 
 those who subsequently hecoinc - Statutes of iS7i-j. p. ^45. 
 
 riparian owners actjuire no rij^hts DeerinR's Code, V«)lunie 2, p. 269. 
 as against such prior ap])ropri;itor.
 
 542 IRRIGATION IN CALIFORNIA. [§352 
 
 the same, the descriptions of the land by legal subdivision, 
 the number of acres in the whole district and the number of 
 acres in each tract, with the names of the owners thereof and 
 the names of three persons who may desire to serve as trus- 
 tees for the first three months." 
 
 By following the rules laid down in this Act the owners of 
 lands were able to form an association among themselves for 
 irrigation purposes. Rules were laid down for the organiza- 
 tion of the districts and for the by-laws of the association and 
 duties of the officers of the same after its organization. The 
 powers of the officers or trustees were defined as follows: 
 
 " Sec. 8. The board thus formed have power to elect one of 
 their number president thereof and employ engineers to sur- 
 vey, plan, locate and estimate the cost of the works necessary 
 for the irrigation and the water-rights needed and the land 
 needed for right of wa}', including drains, canals, sluices, 
 water-gates, embankments and material for construction and 
 to construct, maintain and keep in repair all works necessarj'^ 
 to the object in view." 
 
 The running expenses were provided for by provisions for 
 assessments upon the members of the association for the pur- 
 pose of defraying the cost of constructing and maintaining the 
 works necessary. And it was also provided that the charges 
 assessed upon any tract of land within the county constituted 
 a lien thereon. There was also a provision for the acquisition 
 of the necessary property as follows: 
 
 " Sec. 21. The trustees may acquire, by purchase, all prop- 
 erty necessary to carry out and maintain the system of irri- 
 gation or drainage provided for. ' ' 
 
 The Act also provided that trustees might acquire rights to 
 water and rights of way in the following manner: 
 
 " Sec. 22. The trustees may acquire by condemnation: 
 
 " I . The right to the use of any running water not already 
 used for culinary or domestic purposes or for irrigating, mill- 
 ing or mining purposes. 
 
 " 2. The right of way for canals, drains, embankments and 
 other work necessary, and may take materials for the con- 
 struction, maintenance and repair thereof from lands outside 
 of as well as within the limits of the district.
 
 [§352,353] IRRIGATION IN CALIFORNIA. 543 
 
 "Sec. 23. The provisions of title VII, part III. of the Code 
 of Civil Procedure are applicable to and the condemnation 
 herein provided for must be made thereunder." 
 
 Irrigation or drainage by owners was also provided for as 
 follows: 
 
 "Sec. 24. Whenever any district susceptible of one mode 
 of irrigation or drainage is entirely owned by parties who de- 
 sire to irrigate or drain the same or to manage the irrij;ation 
 or drainage without the inter\-cntion o( trustees or the estab- 
 lishment of by-laws they may file the petition provided for in 
 sections one and two, and must state therein that they intend 
 to undertake the irrigation or drainage on their own responsi- 
 bility." 
 
 The Act also provided that its provisions should not apply 
 to the counties of Fresno, Kern, Tulare and Yolo. 
 
 §353. An Act to Fix the Rutcs hy which Water shall 
 be Sold. — In 1880 the Legislature passed "An Act author- 
 izing the boards of supervisors of counties in which water is 
 sold for the purpose of irrigation to fix the rates at which 
 water shall be sold," ^ which provided as follow: 
 
 "Section i. The boards of supervisors of the several coun- 
 ties of this State in which water is appropriated, funiished 
 and sold, principally for the purposes of irrigation, are here- 
 by authorized and required to fix the maximum rate at which 
 such water shall be furnished and sold, at a meeting to be 
 held in the month of February of each year; * * * pro- 
 vided that nothing in this section shall apply to water fur- 
 nished within the limits of any incorporated city and county, 
 city or town. 
 
 "Sec. 2. Any person, company or corporation collecting 
 rates for water furnished for irrigation in any county of this 
 State in excess of the rates provided in section one of this 
 Act shall forfeit for the public use the franchise and water- 
 works of such person, company or corporation to the county 
 in which such excessive rates were charged. 
 
 "Sec. 3. Upon affidavit being made by any interested party, 
 setting forth that any such company, person or corponition. 
 
 Statute of iHHo, p. 16, 2 Deeritigs Code 271.
 
 544 IRRIGATION IN CALIFORNIA. [§353,354 
 
 has charged rates for water furnished for irrigation purposes 
 in excess of the rates established by the board of supervisors, 
 the said board of supervisors shall cause the district attorney 
 to commence an action in the Superior Court within thirty 
 days from the receipt by them of such affidavit to enforce the 
 forfeiture of the franchise and the water-works of such person, 
 company or corporation. 
 
 " Sec. 5. No person, company or corporation selling water 
 for irrigation shall be permitted to exercise any control as to 
 the use of the water after its delivery to the purchaser." 
 
 III. Regulation and Control of Ditch Companies. 
 
 § 854. Appropriated Water a Public Use.— On March 12, 
 1885, there was approved "An Act to regulate and control 
 the sale, rental and distribution of appropriated water in this 
 State, other than in any city, city and county or town therein, 
 and to secure the rights of way for the conveyance of such 
 water to the places of use," which provided as follows:^ 
 
 " Sec. I. The use of all water now appropriated or that may 
 hereafter be appropriated for irrigation, sale, rental or distri- 
 bution is a public use, and the right to collect rates or com- 
 pensation for use of such water is a franchise, and except 
 when so furnished to any city, city and county or town or the 
 inhabitants thereof, shall be regulated and controlled in the 
 counties of this State by the several boards of supervisors 
 thereof in the manner prescribed in this Act. 
 
 " Sec. 2. The several boards of supervisors of this State, on 
 petition and notice as provided in section three of this Act, 
 are hereby authorized and required to fix and regulate the 
 maximum rates at which any person, company, association or 
 corporation, having or to have appropriated water for sale, 
 rental or distribution, in each of said counties, may and shall 
 sell, rent or distribute the same." 
 
 Section three provided substantially as follows: That 
 whenever a petition of not less than twenty-five taxpayers of 
 any county in the State shall in writing petition the board of 
 supervisors thereof to regulate and control the rates and com- 
 
 iStat. 1885, p. 95; 2 Deering272.
 
 §354.355] IRRIGATION IN CALIFORNIA. 515 
 
 pensation to be charged by any person or company specified 
 in the petition the clerk of said board shall immediately pub- 
 lish said petition with a notice of time and place of hearing, 
 " which shall impart notice to all persons, companies, asso- 
 ciations and corporations mentioned in such petition and all 
 persons interested in the matters of such petition and notice- 
 Such board may also cause citations to issue to any person or 
 persons within such county to attend and give evidence at the 
 hearing of such petition and may compel attendance by at- 
 tachment." 
 
 §355. Siinie. — Powers and Duties of('()imt.vSui)('i'visoi*s.— 
 
 Section four of said Act contains provisions for the supervis- 
 ors to estimate the value of the property, and their annual 
 reasonable expenses for repairs, management and operating 
 works; "and for the purpose of such ascertainment may re- 
 quire the attendance of such persons to give evidence and the 
 production of papers, books and accounts, and may compel 
 the attendance of such persons and the production of papers, 
 books and accounts, by attachments. If within their respective 
 counties." 
 
 Section five of the Act provides that the board of supervis- 
 ors may also establish different rates and compensation for 
 water so to be furnished for the several different uses, such as 
 mining, irrigating, mechanical, manufacturing and domestic, 
 for which such water shall be supplied to the inhabitants, but 
 such rates as to each class shall be equal and uniform. Said 
 board of supervisors in fixing rates shall, as near as may be, 
 so adjust them that the net annual receipts and profits thereof 
 to the said persons, companies, associations and corporations, 
 so furnishing such water to such inhabitants shall be not less 
 than six nor more than eighteen per cent, upon the said value 
 of the canals, ditches, flumes, chutes and all other property 
 actually used and useful to the appropriation and furnishing 
 of such water. * * * " The said rates, when .so fixed by 
 such board, shall be binding and conclusive for not less than 
 one year next after their establishment and until established 
 anew or abrogated by such board of supervisors as hereinafter 
 provided. And until such rates shall be so established or
 
 546 IRRIGATION IN CALIFORNIA. [§ 355, 356 
 
 after they shall have been abrogated by such board of super- 
 visors, as in this Act provided, the actual rates established 
 and collected by each of the persons, companies, associations 
 and corporations now furnishing, or that shall hereafter fur- 
 nish, appropriated waters for sale, rental or distribution to the 
 inhabitants of any of the counties of this State shall be deemed 
 and accepted as the legally established rates thereof. ' ' 
 
 Section six provides that the rates if found to be unsatis- 
 factory might be changed by the board. 
 
 The Act also provided for a record of the rates established; 
 that no person or company could charge rates exceeding those 
 established and fixed by the board; and the liability of persons 
 or companies to a recovery of the whole rate collected and actual 
 damages where the charge was in excess of the rate fixed . And 
 another peculiar feature of the Act was a provision that the 
 company should be compelled to sell water upon a tender of the 
 rates established. The text upon this subject reads as follows: 
 
 " Sec. TO. Every person, company, association and cor- 
 poration having in any county in the State (other than in any 
 city, city and county or town therein) appropriated waters 
 for sale, rental or distribution to the inhabitants of such 
 county, upon demand thereof and tender in money of such 
 established water rates, shall be obliged to sell, rent or dis- 
 tribute such water to such inhabitants at the established rates 
 regulated and fixed therefor, as in this Act provided, whether 
 so fixed by the board of supervisors or otherwise, to the ex- 
 tent of the actual supply of such appropriated waters of such 
 person, company, association or corporation for such purposes. 
 If any person, company, association or corporation having 
 water for such use shall refuse compliance with such demand, 
 or shall neglect, for the period of five days after such demand, 
 to comply therewith to the extent of his or its reasonable 
 ability so to do, he or it shall be liable in damages to the ex- 
 tent of the actual injury sustained by the person or party mak- 
 ing such demand and tender, to be recovered with costs." 
 
 § 356. Eminent Domain.— " Section ii. Whenever any 
 person, company, association or corporation shall have ac- 
 quired the right to appropriate water or shall have acquired
 
 §356,357] IRRIGATION IN CALIFORNIA. .'17 
 
 the right to appropriate such water in this State, such 
 person, company, association or corporation may proceed to 
 condemn the lands and premises necessary to such right-of- 
 way under the provisions of Title VI I ^ of Part III. of the 
 Code of Civil Procedure of this State, and amendments made 
 and to be made thereto: and all the provisions of said code, so 
 far as the same can be made applicable, relating to the con- 
 demnation and taking of property for public uses shall be ap- 
 plicable to the provisions of this Act." 
 
 §357. Same. — Authorities (Oiistriiiiii; ('«Kle. — Section 
 
 1238 of the Code of Civil Procedure of California provides 
 as follows: " Subject to the provisions of this title the right 
 of eminent domain may be exercised in iK-half of the follow- 
 ing public uses: * * * canals, ditches, flumes, aqueducts 
 and pipes for public transportation supplying mines and farm- 
 ing neighborhoods with water and draining and reclaiming 
 lands, and for floating logs and lumber on streams not navi- 
 gable." 
 
 In construing the above section the Supreme Court of Cali- 
 fornia in the case of Lux vs. Haggin^ held: that the riparian 
 owner's property in the water of a stream may (on payment 
 of due compensation to him) be taken to supply "farming 
 neighborhoods" with water. And Mr. Justice McKinstry, 
 in rendering the opinion of the Court upon this subject, said: 
 "We are not prepared to say that the supply of water to 
 ' farming neighborhoods ' for irrigation (and the Code evi- 
 dently means for irrigation) may not be for public use. In- 
 deed, in view of the climate and arid soil in parts of the State 
 (for this object climate and soil may properly be considered) 
 it is safe to say that the supply for such use may be that which 
 the Legislature has decided it to be— a public use. The judg- 
 ment of the Legislature that it is such ouglit not, therefore, 
 to be disturbed l)y the Courts. 
 
 " It is apparent that in deciding whether a use was public 
 the Legislature was not limited 1)> the mere number of per- 
 .sons to be immediately benefitted as opposed to those from 
 
 1 69 Cal. 30.J, 309; 10 Pac. Rep. 697.
 
 548 IRRIGATION IN CALIFORNIA. [§ 357 
 
 whom property is taken. It must happen that a public use 
 (as of a particular wagon or railroad) will rarelj- be directly 
 enjoyed by all the denizens of the State, or of a county or 
 city; and rarely- that all within the smallest political sub- 
 division can as a ffftt immediately enjoy every public use. 
 Nor need the enjoyment of a public use be biconditional. A 
 citizen of a municipality to which water has been brought by 
 a person or corporation which, as agent of the government 
 has exercised the power of eminent domain, can demand 
 water only on pajanent of the established rate and on com- 
 pliance with reasonable rules and regulations. 
 
 "And while the Court will hold the use private where it 
 appears that the government or public ca7inot have any inter- 
 est in it, the Legislature, in determining the expediency of 
 declaring a use public, may no doubt properly take into con- 
 sideration all the advantages to follow from such action, as 
 the advancement of agriculture, the encouragement of mining 
 and the arts, and the general though indirect benefits derived 
 to the people at large from the dedication. * * * 
 
 "The words 'farming neighborhoods' are somewhat in- 
 definite; the idea sought to be conveyed b}' them is more 
 readily conceived than put into accurate language. Of course 
 ' farming neighborhood ' implies more than one farm; but it 
 would be difl&cult to saj- that any certain number is essential 
 to constitute such a neighborhood. The vicinage may be 
 nearer or more distant, reference being had to the populous- 
 ness 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 con- 
 duct 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. 
 
 " It must always be borne in mind that under the codes no
 
 §357] lUKlGATioN IN . v i n* •!; \ i A. 549 
 
 man (^or set of men ) can take anulln.r s properix i'>r ins ou-u 
 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 communi- 
 ties, farming neighborhood or farming neighborhoods, to 
 which he conducts it, the consumers being required to pay 
 reasonable rates and being subjected to reasonable regula- 
 tions. And whether the quantity sought to be condemned is 
 reasonably necessary to supply the public use in a neighbor- 
 hood or neighborhoods must be determined by the Court in 
 which the proceedings are brought for condemnation oJ the 
 private right. 
 
 " In proceedings brought to secure the appropriation «>f pri- 
 vate property to a public use, as in all other legal pn^ceed- 
 ings, a pretense cannot be set up as a fact — a sham for a 
 reality. The facts, it must be presumed, will always be fairly 
 determined in each particular case. * * * it may be inti- 
 mated that the Court should avoid too narrow a view of the 
 important question involved. It may be suggested that judges 
 in this State should rise to the appreciation of the fact that 
 the physical conditions here existing require an 'appropriator' 
 to be authorized to deprive, without indemnification, all the 
 lower riparian proprietors, however numerous, on the course 
 of a non-navigable stream of every natural advantage con- 
 ferred on their lands by the running water. .X ' public 
 policy ' has been appealed to, which has not found its expres- 
 sion in the statutes of the- State, but which rests apparently 
 on the political maxim ' the greatest good to the greatest 
 number,' on the claim that by permitting such deprivation 
 of the enjoyment of the stream by the riparian proprietors 
 more persons or a larger extent of territory will be benefitted 
 by the waters. The proposition is simply that l)y imperative 
 necessity the right to take or appropriate water should be 
 held paramount to every other right with whiih it may o>ine 
 in contact." 
 
 Judge Cooley upon this subject says: " The (luestioii. what 
 is a public use, is always a question of law. Deference will 
 be paid to the legislative judgment, as expressed iti enact-
 
 550 
 
 IRRIGATION IN CALIFORNIA. [§ 357, 358 
 
 ments providing for tlie appropriation of property, but it will 
 not be conclusive." ^ 
 
 lY. Calil'oruia Irrigatiou District Law. 
 
 § 358. " Wright Law." — Probably the most famous and ela- 
 borate statutory law in existence upon this subject is that 
 of California authorizing the formation of public corporations 
 called " Irrigation Districts." This law is familiarly known 
 
 1 Cooley's Const. Lim. 536, see 
 also § 532; see also St. Helena vs. 
 Forbes, 62 Cal. 182; Gardner vs. 
 Newberg, 2 John's Ch. 162; 7 Am. 
 Dec. 536; see also Beekman vs. 
 Railroad, 3 Paige, 45-73; Wilson 
 vs. Blackbird Creek Marsh Co., 2 
 Peters, 245; Railroad Co. vs. Stock- 
 ton, 41 Cal. 147; Aliso W. Co. vs. 
 Baker, 95 Cal. 268; 30 Pac. Rep. 
 537; Lake Pleasanton W. Co. vs. 
 Contra Costa Q. Co., 67 Cal. 659; 
 Amador B. M. Co. vs. Davit, 73 
 Cal. 482; 15 Pac. Rep. 74; Hodgdon 
 vs. Southern Pac. Ry. Co., 75 Cal. 
 642. 
 
 See also the recent case of Lind- 
 say Irrigation Co. vs. William 
 Mehrtens et al., 97 Cal. 676, where 
 it was held that Section 1238 of 
 the Code of Civil Procedure giv- 
 ing the right of eminent domain 
 for the construction of canals and 
 ditches for supplying farming 
 neighborhoods with water is a 
 legislative declaration that the use 
 is a public use and the declaration 
 must be regarded as falling within 
 the scope of legislative duty in 
 providing for the public welfare. 
 
 It was also held in the same case 
 that the term " farming neighbor- 
 hood," as used in the code provi- 
 sion, is an indefinite expression, 
 and whether it can be applied to 
 any particular tract of land must 
 be determined by the evidence; 
 
 and the term "public use" is 
 also an expression of indefinite 
 signification, and its application 
 to the facts of any particular case 
 is to be determined from the evi- 
 dence. Also that a "farming 
 neighborhood" is a region in 
 which there are several tracts of 
 farming land with proximity of 
 location, and which can be re- 
 garded as a whole with reference 
 to some common interests, al- 
 though they are distinct in 
 boundaries and held in individual 
 proprietorship. Its extent need 
 not be characterized by fixed 
 boundaries, nor is its existence de- 
 termined by any definite number 
 of proprietors, and while a tract 
 of land, though large in extent, 
 might if held in different proprie- 
 torship constitute a neighbor- 
 hood, yet it would not if it were 
 held in single ownership. It was 
 not necessary in order to render 
 the suppljdng of water to a farm- 
 ing neighborhood a public use that 
 the entire public shall enjoy the 
 use, or even that it be capable 
 thereof, but the use must be 
 capable of enjoyment by all who 
 may be within the neighborhood, 
 and there must be within that 
 neighborhood so great a number 
 of the entire public as to destroy 
 its character as a private use.
 
 §358] IRRIGATION IN CALIFORNIA. 551 
 
 as the "Wright Law;" and the purpose of its enactment asset 
 forth in the title of the Act is as follows: "An Act to pro- 
 vide for the organization and government of irrigation dis- 
 tricts, and to provide for the acquisition of water and other 
 property-, and for the distribution of water thereby for irriga- 
 tion purposes." ' 
 
 Owing to the thickly populated condition of the State of 
 California and its necessities that State has evolved an ad- 
 ministrative policy which, while based upon the principle of 
 State or community ownership of natural waters, provides 
 also for the ownership by the people interested of all the works 
 needed in irrigation and distribution. It is a voluntary mat- 
 ter initiated by action through the polls by the people desir- 
 ing to form a district. 
 
 And as the California district law has been copied by various 
 States throughout the arid region and has been made the 
 basis of all irrigation district laws, with the single exception 
 of the law of Utah Territory, it seems advisable to give a 
 complete abstract of the law as it stands amended, even at 
 the expense of using considerable space. We will incorporate 
 the amendments in the body of the law. so as to give it as it 
 stands to-day, indicating in the notes when the amendments 
 were made and where they can be found. 
 
 l.\ctof March 7, 1887; Statute entire supplenieiital .\ct was 
 
 1887, page 29; Vol. 5, Deering's anieiided by an .\ct approved 
 
 Code, page 285-294. March 25, 1893; Stat. 1893, page 
 
 The original "Wright Law" 516. 
 
 has been amended from time to Act approved March 16, 1889; 
 
 time by subsequent Acts of the Stat. 1S89, j)age 212; 5 Deering, 299. 
 
 Legislature, both as to the original .\ct ai)proved March 10, 1891; 
 
 sections and by supplemental Slat. 1 89 1, page 53. 
 
 enactments. The following are .\ct approved March 20, 1S91; 
 
 references to the respective Slat. 1891, page 142. 
 
 amendatory and supplemental .\ct approved March 20, 1891; 
 
 Acts: Stat. 1891, page 147. 
 
 Act approved Feb. 16, 18S9; Slat. Act approved March 31, 1891; 
 
 1889, page 15; 5 Deering, 294. Stat. 1891, page 244. 
 
 Act approved Feb. 16, 1889; Stat. Act ai)proved March 11, 1893; 
 
 1889, page 15; 5 Deering, 295. Stat. 1893, page 175. 
 
 Act approved Feb. 16, 1889; Slat. Act approved March 23, 1893; 
 
 1889, page 21; 5 Deering, 297. This Stat. 1893. page 276.
 
 552 IRRIGATION IX CALIFORNIA. [§359,360 
 
 § 359. Organization of Irrigation Districts. — " Section i. 
 Whenever fift}- or a majority of the holders of title or evi- 
 dence of title to lands susceptible of one mode of irrigation 
 from a common source, and b}^ the same systems of works de- 
 sire to provide for the irrigation of the same, they may pro- 
 pose the organization of an irrigation district, under the 
 provisions of this Act, and when so organized such districts 
 shall have the powers conferred, or that may hereafter be 
 conferred, by the law of such irrigation districts. The equal- 
 ized county assessment rolls, next preceding the presentation 
 of a petition for the organization of an irrigation district 
 under the provisions of this Act, shall be sufficient evidence 
 of title for the purposes of this Act."' 
 
 § 3(>0. Petition to Board of Supervisors. — What to Con- 
 tain. — Lands that must be Included. — Notice of Election. 
 — Ballots what to Contain. — Section 2 of said Act as 
 amended reads as follows: 
 
 "Sec. 2. A petition shall first be presented to the Board 
 of Supervisors of the county in which the lands, or the great- 
 est portion thereof, are situated, signed by the required num- 
 ber of holders of title or evidence of title, of such proposed 
 district evidenced as above provided, which petition shall set 
 forth and particularly describe the proposed boundaries of 
 such district, and shall pray that the same shall be organized 
 under the provisions of this Act. The petitioners must accom- 
 pany the petition with a good and sufficient bond to be ap- 
 proved by the said Board of Supervisors, in double the amount 
 of the probable cost of organizing such district, conditioned 
 that the bondsmen will pay all the said costs in case said 
 organization shall not be effected. Such petition shall be 
 presented at a regular meeting of said board, and shall be 
 published at least two weeks before the time at which the 
 same is to be presented in some newspaper printed and pub- 
 Act approved March 23, 1893; Act approved March 25, 1893; 
 Stat. 1893, page 295. Stat. 1893, page 520. 
 
 Act approved March 25, 1893; lAs amended by Act approved 
 
 Stat. 1893, page 516. March 20, 1891; Stat. 1891, page 
 
 142, Sec. I.
 
 §360] 
 
 IRRIGATION IN CALIFORNIA. 
 
 ir>3 
 
 lished in the county where said petition is presented, together 
 with a notice stating the time of the meeting at which the 
 same will be presented, and if any portion of said proposed 
 district lie within another county, or counties, then said 
 petition or notice shall be published in a newspaper published 
 in each of said counties. When such petition is presented 
 the said Board of Supervisors shall hear the same, and may 
 adjourn such hearing from time to time not exceeding four 
 weeks in all; and on the final hearing may make such changes 
 in the proposed boundary as they may find to be proper and 
 shall establish and define such boundaries; provided, that said 
 board shall not modify said boundaries so as to except trom 
 the operation of this Act any territory within the boundaries 
 of the district proposed by said petitioners which is susceptible 
 of irrigation by the same system of works applicable to the 
 other lands in such proposed district: nor shall any lands 
 which will not, in the judgment of said board, be benefitted 
 by irrigation by said system be included within such district; 
 provided, that any person whose lands are susceptible of irri- 
 gation from the same source may in the discretion of the 
 board, upon application of the owner to said board, have such 
 lands included in said district. • Said board shall also make 
 
 1 On February- i6, 18S9, an .\ct 
 ■was approved, amendatory and 
 supplemental to the Act approved 
 March 7, 1887, which provided for 
 a change of the boundaries of irri- 
 gation districts by including other 
 lands therein. See Stat. 1S89, 
 page 18; 5 Deering, page 295. 
 Section i of which Act provided: 
 That the l>oundaries of any irri- 
 gation districts now or hereafter 
 organized under the provisions of 
 the Act approved March 7, 1887, 
 "maybe changed in the manner 
 herein prescribed, but such change 
 of the boundaries of a district 
 shall not inijjair or affect its or- 
 ganization, or its rights in or to 
 property, or any of its rights or 
 
 privileges of whatsoever kind ur 
 nature; nor shall it affect, impair 
 or discharge any contract, obliga- 
 tion, lien or charge for or upon 
 which it was or might become 
 liable or chargeable hail such 
 change of its bounilaries not been 
 made." 
 
 The Act provides thai the hold- 
 ers of title may petition for cliange 
 of boundaries as follows: 
 
 " Sec. 2. The holder or liolders 
 of title, or eviilence of title, rep- 
 resenting one-half or u'ore i>f any 
 body of lands ailjacciit t<» the 
 boundary of an irrigation district, 
 which are contiguous, iind which 
 taken together constitute one 
 tract of land, may tile willi the
 
 554 
 
 IRRIGATION IN CALIFORNIA. 
 
 [§360 
 
 an order dividing said district into five divisions, as nearly- 
 equal in size as may be practical, which shall be numbered 
 first, second, third, fourth and fifth, and one director, who 
 shall be a freeholder in the division and an elector and resi- 
 dent of the district, shall be elected by each division; pro- 
 
 Board of Directors of said district 
 a petition in writing praying that 
 the boundaries of said district 
 may be so changed as to include 
 therein said lands. The petition 
 shall describe the boundaries of 
 said parcel or tract of land, and 
 shall also describe the boundaries 
 of the several parcels owned by 
 the petitioners if the petitioners 
 be the owners respectively of dis- 
 tinct parcels, but such descriptions 
 need not be more particular than 
 they are required to be when such 
 lands are entered by the county 
 assessor in the assessment book. 
 Such petition must contain the as- 
 sent of the petitioners to the in- 
 clusion within said district of the 
 parcels or tracts of land described 
 in the petition, and of which said 
 petition alleges they are respect- 
 ively the owners. And it must be 
 acknowledged in the same manner 
 that conveyances of land are le- 
 quired to be acknowledged." 
 
 The Act also provided for the 
 publication of the petition, the 
 hearing of the same and also that 
 the petitioners may be assessed as 
 a condition precedent to the grant- 
 ing of the same; that the petition- 
 ers shall severally pay to such dis- 
 trict such sum as said petitioners 
 would have been required to pay 
 to such districts as assessments 
 had such land been included in 
 such districts at the time the same 
 was originally formed. The Act 
 also provided that upon the hear- 
 
 ing, if the Board of Directors shall 
 not deem it for the best interest 
 of the district that a change of its 
 boundaries be made so as to in- 
 clude the land mentioned in the 
 petition, the petition may be re- 
 jected; on the other hand, if the 
 board deem it for the best interest 
 that the boundaries be changed, it 
 may order the change so as to in- 
 clude therein the lands mentioned 
 in said petition or some part 
 thereof. Provided that no person 
 interested in said district shall 
 show cause in writing why the 
 proposed change should not be 
 made. But if any person inter- 
 ested in said district shall show 
 cause why such boundaries should 
 not be changed the Act provides 
 for an election to determine 
 whether the boundaries shall be 
 changed or not. Upon change of 
 boundaries of a district being 
 made a copy of the order of the 
 Board of Directors ordering such 
 change shall be filed for record in 
 the recorder's office in each 
 county within which are situated 
 any of the lands of the district, 
 and thereupon the district shall 
 be and remain an irrigation dis- 
 trict as fully and to every intent 
 and purpose as if the lands which 
 are included in the district by the 
 change of boundaries had been 
 included therein at the original 
 organization of the district. 
 
 Also on February i6, 1889, was 
 passed an Act amendatory of and
 
 §360] 
 
 IRlilUATION IX fALIFOUXlA. 
 
 vided, that if a majority of the holders of title or evidence of 
 title, evidenced as above provided, petition for the formation 
 of a district, the Board of Supervisors may, if so requested in 
 the petition, order that there may be either three or five di- 
 rectors, as said board may order, for such district, ami that 
 they may be elected by the district at large. Said Hoard of 
 Supervisors shall then give notice of an election to be held 
 in such proposed district for the purpose of determining 
 whether or not the same shall be organized under the provi- 
 sions of this Act. Such notice shall describe the boundaries 
 so established, and shall designate a name for such proposed 
 district, and said notice shall be published for at least three 
 weeks prior to such election in a newspaper published within 
 
 supplemental to the ."^ct approved 
 March 7, 1S87, providing for the 
 exclusion of certain lands within 
 any such irrigation districts. See 
 Stat. 1889, p. 21; 5 Deering, 297. 
 This Act was also amended by an 
 Act approved March 25, 1893 (see 
 Stat. 1893, page 516), and the sub- 
 stance of which .\ct as amended is 
 as follows: 
 
 Section i provides that tracts 
 of land which were included 
 within the boundaries of an irri- 
 gation district at or after its or- 
 ganization may be excluded there- 
 from. 
 
 Sec. 2 provides that the owners 
 of lands included within the dis- 
 trict may jointly or severally file 
 with the Board of Directors of the 
 district a petition praying that 
 such tracts may be excluded from 
 said district, and stating the 
 grounds and reasons upon which 
 it is claimed that such lands should 
 be excluded. 
 
 Sees. 3 and 4 provide lliat 
 notices of a hearing of a jjctilion 
 must be published, and the time 
 must be specified in the notice at 
 
 which all per.sons interested shall 
 be recjuired to show cause why the 
 change of the boundaries of the 
 district as proposed in said peti- 
 tion shall not be made. The Hoard 
 of Directors at the time ami place 
 mentioned in the notice shall pro- 
 ceed to hear the petition and all 
 evidence or proof that may or 
 shall be introduced by or on be- 
 half of the petitioners, and all ob- 
 jections to such petition that may 
 be presented in writing. The 
 failuie of any person interested in 
 said district to show cause in writ- 
 ing why said tract should not be 
 excluded from the district shall be 
 deemed as an assent by him to the 
 exclusion of such tract. 
 
 Sep. 5 i)rovides that it shall be 
 the duty f)f the board, if the evi- 
 dence fail to sustain the ])etition. 
 to order that the jjetition be ile- 
 nie<i; but on the other hand, if the 
 allegations of the petition are 
 ]iroven, it shall be the <hity of the 
 board to onlcr that the lands men- 
 tioned be exilude<l from said <lis- 
 tricl.
 
 556 IRRIGATION IN CALIFORNIA. [i$ 360, 361 
 
 said county; and if any portion of such proposed district lie 
 within another county or counties, then said notice shall be 
 published in a newspaper published within each of said coun- 
 ties. Such notice shall require the electors to cast ballots, 
 which shall contain the words 'Irrigation District — Yes,' 
 or ' Irrigation District — No,' or words equivalent thereto, and 
 also the names of persons to be voted for to fill the various 
 elective offices hereinafter prescribed. No person shall be 
 entitled to vote at any election held under the provisions of 
 this Act unless he shall possess all the qualifications required 
 of electors under the general election laws of this State." ' 
 
 § 3G1. Election.— Statute of Limitjitions.— Lands to be 
 in only One District.— Election Precincts —Number of 
 Directors. — Sec. 3. This section provides for the holding of 
 the election mentioned above as nearly as practicable in ac- 
 cordance with the general laws of the St2ite; prozn'ded, that no 
 particular form of ballot shall be required. It also provides 
 that the Board of Supervisors, after such an election has been 
 held, shall meet and proceed to canvass the votes cast thereat, 
 and if upon such canvass it appear that two-thirds of all the 
 votes cast are " Irrigation District — Yes," the board shall by 
 an order entered on its minutes declare such territory duly 
 organized as an irrigation district, and shall also declare the 
 persons receiving respectively the highest number of votes for 
 such offices to be duly elected to such offices. The section 
 also provides that no action shall be commenced or main- 
 tained, or defence made, affecting the validit}'^ of the organiza- 
 tion, unless the same shall have been commenced or made 
 within two years after the making and entering of said order. 
 It also provides that a copj^ of such order must be imme- 
 diately filed for record in the office of the county recorder of 
 each count}' in which said lands are situated; and from and 
 after the date of such filing the organization of such district 
 shall be complete. It also provides for dividing the district 
 into election precincts, and that the number of directors of 
 such district shall be either three or five.^ 
 
 1 As amended by Act approved 2 As amended by Act approved 
 
 March 20, 1891; Stat. 1891, page March 20, 1891; Stat. 1891, page 
 142, Sec. 2. 143, Sec. 3.
 
 ^362,363] iKUitJATiON ix ('alifoknia. 557 
 
 § 3G'2. Time lor Elei-lion, ami OlluTr*. to Uv Ehuleil. 
 
 Sec. 4 of said Act as amendetl provides for the following: An 
 election shall be held in each district every two years at which 
 an Assessor, a Collector, and a Treasurer and a Board of Di- 
 rectors for the district shall be elected. The section provides 
 that the officers elected shall take and subscribe to the official 
 oath and file the same in the office of the Hoard of Directors. 
 It also provides that the Assessor shall execute an official 
 bond in the sum of $5,000, and the Collector in the sum of 
 $20,000, the District Treasurer in the sum of 550,000. and 
 each member of the Board of Directors in the sum of 55.000, 
 which said bond shall be approved by the Judge of the Su- 
 perior Court of the county where such organization iseffi.>cted, 
 and shall be recorded in the office of the County Recorder 
 thereof and filed with the Secretary of the board.' 
 
 §363. District Elections.— Post i 111: of Notices. l>ul it's 
 of Election IJoard.- Time of Votini:. MaiMier of Ceitify- 
 ing to Ketunis.— ("anvassiiiir lletiinis. -Sections 5 to 9, in- 
 clusive, provide for the posting of election notices in three 
 public places in each election precinct of any district, ior the 
 time and place of holding the election; for the appointment 
 of one inspector and twojudges, who shall constitute a Board 
 of Election for such precinct. Also that the inspector is the 
 chairman of the election board and may administer all oaths, 
 appoint judges and clerks, if during the progress of the elec- 
 tion any judge or clerk should cease to act; and the general 
 duties of the Board of Election for the general conduct of the 
 same. Also provisions are made that the elections shall be 
 conducted as nearly as possible in accordance with tlje pro- 
 visions of the statute for the conduct of the general election; 
 and the manner of certifying and canvassing the returns. 
 The canvass must be made in public and by opening the 
 returns, and estimating the vote of the di.strict for each per- 
 son voted for and declaring the result thereof. 
 
 Sec. 10 of said Act as amended i)rovides for the slateinenl 
 of the result of the election and lliat the Hoard of Ivlectors 
 
 1 As anieiiclcd by Act approved .March 20, iS.^i. .St.it. iS^ji. p. lU, Sec. 4.
 
 558 IRRIGATION IX CALIFORNIA. [§363-365 
 
 must declare elected the person having the highest number 
 of votes given for each office. The Secretary of the board 
 must then make out and deliver to such person a certificate of 
 election.^ 
 
 § 364. Organization. — Powers and Duties of the fioard. — 
 Ratio of Distribution of Water. — "Sec. ii. On the first 
 Tuesday in March next following their election, the Board of 
 Directors shall meet and organize as a board, elect a Presi- 
 dent from their number and appoint a Secretary, who shall 
 each hold office during the pleasure of the board. The board 
 shall have the power and it shall be their duty to manage and 
 conduct the business and affairs of the district, make and 
 execute all necessary contracts, employ and appoint such 
 agents, officers and employes as may be required, and prescribe 
 their duties; establish equitable by-laws, rules and regulations 
 for the distribution and use of water among the owners of 
 said lands and generally to perform all such acts as shall be 
 necessary to fully carry out the purposes of this Act. The 
 said by-laws, rules and regulations must be printed in con- 
 venient form for distribution in the district. And it is 
 hereby expressly provided that all waters distributed for irri- 
 gation purposes shall be apportioned ratably to each land 
 owner upon the basis of the ratio which the last assessment 
 of such owner for district purposes within said district bears 
 to the whole sum assessed upon the district; provided, that any 
 land owner may assign the right to the whole or any portion 
 of the waters so apportioned to him." ^ 
 
 § 365. Meetings of the Doard. — Acquisition of Lands and 
 Water Rights. — Dams and Reservoirs. — Sec. 12 of the Act 
 as amended provides as follows: That the Board of Directors 
 shall hold a regular monthly meeting in their office, and such 
 special meetings as may be required for the transaction of 
 business; also that all meetings must be public, and three 
 
 1 As amended by Act approved 2 As amended by Act approved 
 
 Feb. i6, 1889; Stat. 1889, page 15; March 20, 1891; Stat. 1891, page 
 5 Deering, 294. 145, Sec. 5.
 
 §365,366] IRRIGATION IN CALIFORNIA. r>59 
 
 members shall constitute a quorvim; hut <>n all (lucstions re- 
 quiring a vote there shall be a concurrence of at least three 
 members of the board. All records "t>f the board shall be 
 open to the inspection of any elector during business hours. 
 The power given to the board to acquire property for the 
 purposes of the Act is as follows: " The board and its agents 
 and employes shall have the right to enter upon any land to 
 make surveys, and may locate the necessary irrigation works 
 and the line for any canal or canals, and the necessary 
 branches for the same, on any lands which may be deemed 
 best for such location. Said board shall also have the right 
 to acquire by purchase or condemnation or other legal means 
 all lands and water and -water rig /its and other property neces- 
 sary for the construction, use, supply, maintainance, repair 
 and improvements of said canal or canals and works, includ- 
 ing canals and works constructed and being constructed by 
 private owners, lands for reser\'oirs for the storage of needful 
 waters, and all necessary appurtenances. In case of purchase 
 the bonds of the district hereinafter provided for may be used 
 at their par value in payment; and in ca.se of condenniation 
 the board shall proceed in the name of the di.strict, under pro- 
 visions of Title 7, Part 3, of the Code of Civil Procedure. 
 Said board may also construct the necessary dams, reservoirs 
 and works for the collection of water for said district, and do 
 any and every lawful act necessary to be done that sufficient 
 water may be furnished to each land owner in said district 
 for irrigation purposes. The use of all water required for 
 irrigation of the lands of any district formed under the pro- 
 visions of the Act, together with the rights-of-way for canals 
 and ditches, sites for reservoirs, and all other property re- 
 quired in fully carrying out the provisions of this Act, is 
 heieby declared to be a public use, subject to the regulations 
 and control of tlie State, in the manner prescribed by law." > 
 
 § 3()(). Title U) l*r(»|><'ilv .Vnniiml. Powers of IJoard in 
 
 Suits sit Law or in Eqiiit.v.- " Scr. i.v Tlie k-Kal title to 
 all property acquired under the provisions of this Act shall 
 
 1 As amen<le<l l.y Acl approvc-.l Maul. 2u, iHc^i; Slat. i8yi. pn^c 145. 
 Sec. 6.
 
 560 IRRIGATION IX CALIFORNIA. [§366,367 
 
 immediatel}^ and by operation of law vest in such' irrigation 
 district, and shall be held by such district in trust for, and is 
 hereby dedicated and set apart to the uses and purposes set 
 forth in this Act. And said board is hereby authorized and 
 empowered to hold, use, acquire, manage, occupy and possess 
 said property as herein provided." 
 
 "Sec. 14. The said board is herebj^ authorized and em- 
 powered to take conveyances or other assurances for all prop- 
 erty acquired bj^ it under the provisions of this Act in the 
 name of such irrigation district, to and for the uses and pur- 
 poses herein expressed, and to institute and maintain any 
 and all actions and proceedings, suits at law or in equity, 
 necessary or proper in order to fully carry out the provisions 
 of this Act, or to enforce, maintain, protect or preserve any 
 and all rights, privileges and immunities created by this Act 
 or acquired in pursuance thereof. And in all Courts, actions, 
 suits or proceedings the said board may sue, appear and de- 
 fend, in person or b}' attorneys, in the name of such irrigation 
 districts." 
 
 § 367. Issuance of Bonds. — Speeijil Election For. — Bonds 
 how to be Paid. — Assessments. — Sec. 15 as amended pro- 
 vides that whenever the construction fund has been exhausted 
 by expenditures authorized in the Act, and the board deem it 
 necessary or expedient to raise additional monej' for said 
 purposes, they may estimate and determine the amount of 
 money necessary to be raised, and call a special election at 
 which shall be submitted the question whether or not the 
 bonds of said district in the amount as determined shall be 
 issued. Notices of such election must be given, specifying 
 the time of holding the election and the amount proposed to 
 be issued. At such election the ballots shall contain the 
 words, "Bonds — Yes," or "Bonds — No," or. words equiva- 
 lent thereto. If a majority of the votes cast are in favor of 
 the bonds the Board of Directors shall cause bonds in said 
 amount to be issued; but if the majorit}^ of the votes cast are 
 against the issuance of bonds the result of such election shall 
 be so declared and entered of record; and whenever thereafter 
 the board in its judgment deem it for the best interest of the
 
 ^367.368] lUKUiATION in rALIKoUNIA. ."iC)! 
 
 district that the question of the issuance of bonds shall again 
 be submitted to the electors it may submit such questions in 
 the same manner as at such previous election. The bonds 
 shall be payable in gold coin of the United States in ten 
 series; the first series payable at the expiration of eleven 
 years, and the last at the expiration of twenty years, and the 
 bonds shall bear interest at the rate of six per cent, per an- 
 num, payable semi-annually. The denomination of the bonds 
 shall be of not less than one hundred dollars, nor more than 
 five hundred dollars each, and shall be negotiable in form. 
 Special assessments are provided for as follows: " In case 
 the money raised by sale of all bonds issued be insufficient for 
 the completion of the plan of canal and works adopted and 
 additional bonds be not voted, it shall be the duty of the 
 Board of Directors to provide for the completion of said plan 
 by levy of assessments therefor. It shall be lawful for any 
 district which has heretofore issued bonds under the law then 
 in force to issue in place thereof an equal amount of bonds in 
 accordance with this amendment, and to sell the same or any 
 part thereof, as hereinafter provided, or exchange the same 
 or any part thereof with the holders of such previously issued 
 bonds which may be outstanding upon such terms as may be 
 agreed upon between the Board of Directors of the district 
 and the holders of such outstanding bonds; provided, that 
 said board shall not exchange any such bonds for less amount 
 in par value of the bonds received. All of such old issue, in 
 place of which new bonds are issued, shall be destroyed when- 
 ever lawfully in possession of said Imard." ' 
 
 §368. Board to Sell Bomls.— " Sec. i6. The board may 
 .sell said bonds from time to time in such quantities as may be 
 necessary and most advantageous to raise money for the con- 
 struction of said canals and works, the acquisition of said 
 property and rights and otherwi.se to fully carry out the object 
 and purposes of this Act." 
 
 The section also provides that notice of the sale of the bunds 
 is to be given by publication in a daily newspaper published 
 
 lAs amen.led by Act approv.-.l March 20. iSc^i, Slal. iS.,i. pa^c- i.»7. 
 Sec. I.
 
 562 
 
 IRRIGATION IX CALIFORNIA. 
 
 [§368 
 
 in each of the cities of San Francisco, Sacramento and lyos 
 Angeles, and in any other newspaper at their discretion. 
 Sealed proposals will be received by the board at their office 
 for the purchase of the bonds, and the sale thereof shall be 
 awarded to the highest responsible bidder; but said board 
 shall in no event sell any of the said bonds for less than 
 ninety per cent, of the face value thereof." ^ 
 
 1 An Act supplemental to the 
 Act of March 7, 1887, was ap- 
 proved March 16, 1889, to provide 
 for the examination, approval and 
 confirmation of proceedings for 
 the issue and sale of bonds issued 
 under the provisions of said Act. 
 See Stat. i88g, p. 212; 5 Deering, 
 299. 
 
 Section i of said supplemental 
 Act provides that the Board of 
 Directors of an irrigation district 
 "may commence a special pro- 
 ceeding in and by which the pro- 
 ceedings of said board of said dis- 
 trict providing for and authoriz- 
 ing the issue and sale of the bonds 
 of said district, whether said 
 bonds or any of them have or 
 have not then been sold, may be 
 judicially examined, approved and 
 confirmed." 
 
 " Sec. 2. The Board of Directors 
 of the irrigation district shall file 
 in the Superior Court of the 
 county in which the lands of the 
 district, or some portion thereof, 
 are situated, a petition praying in 
 effect that the proceedings afore- 
 said may be examined, approved 
 and confirmed by the Court. The 
 petition shall state the facts show- 
 ing the proceedings had for the 
 issue and sale of said bonds; and 
 shall state generally that the irri- 
 gation district was duly organized, 
 and that the first Board of Di- 
 
 rectors was duly elected; but the 
 petition need not state the facts 
 showing such organization of the 
 district or the election of said first 
 Board of Directors." 
 
 The Act provides that the Court 
 shall set the time for the hearing 
 of said petition; and that notice 
 shall be published of the hearing 
 in the same manner and for the 
 same length of time; that a notice 
 of a special election provided for 
 by said Act to determine whether 
 the bonds of said district shall be 
 issued is required to be given and 
 published. It also provides that 
 interested parties may demur to 
 or answer said petition. Upon the 
 hearing of such special proceed- 
 ings the Court shall have power 
 and jurisdiction to determine the 
 legality and validity of, and ap- 
 prove and confirm each and all, 
 the proceedings for the organiza- 
 tion of said district under the pro- 
 visions of said Act, from and in- 
 cluding the petition for the or- 
 ganization of the district, and all 
 other proceedings which maj^ af- 
 fect the legality or validity of said 
 bonds, and the order for the sale, 
 and the sale thereof. It also pro- 
 vides that an appeal from the 
 order from the judgment ma)- be 
 taken by the party aggrieved. 
 
 See Post Sections 392, 393 as to 
 construction of statute.
 
 §369,370] IRRIGATION IN ('ALIKoKNIA. 563 
 
 §360. Bonds H()>Y to he l*jii<l.— ' Sec 17. Said Ik)iic1> 
 and the interest thereon shall be paid by revenue derived 
 from an annual assessment upon the real property of the dis- 
 trict; and all the real property shall be and remain liable to 
 be assessed for such payments as hereinafter provided. And 
 as additional security for the payment of all said bonds and 
 interest thereon the Board of Directors shall have power to 
 pledge by mortgage, trust deed, or otherwise, all property of 
 the district situate within or without the district, whether 
 real, personal or mixed, of whatsoever kind, including all its 
 rights and privileges held or possessed at the time of the issue 
 of said bonds, or which may hereafter be acquired under the 
 provisions of this Act." ^ 
 
 § 370. Assessineiit of Rt^al rroporty.— Sec. 18 of said Act 
 provides for the assessment of all the real property in the 
 district at its cash valuation. The duties of the Assessor are 
 also prescribed for making the assessment, the description of 
 the property and other data that must be entered in the As- 
 sessor's books. And the last of the section provides "any 
 property which may have escaped the payments of any 
 assessments for any year shall, in addition to the assessment 
 for the then current year, be assessed for such year with the 
 same effect, and with the same penalties as are provided tor 
 such current year." - 
 
 Sec. 19. This section provides for the appointment ot as 
 many deputy assessors as will enable the Assessor to comi)lete 
 his work within the time prescribed. 
 
 Sec. 20 provides that the assessment must be coini)lele(l 
 on or before the first Monday in August of each year. 
 
 Sec. 21 prescribes the powers and duties of the Board of 
 
 Board of Directors of Irr. Dis- i .\s amended by Act approved 
 
 trict vs. Tregea, 88 Cal. 334; 26 March 11, 1893; see Stat. iS<,v p. 
 
 Pac. Rep. 237; Crall vs. Board of 175- 
 
 Directors Poso Irr. District, 87 -'As amended by Act appiove«l 
 
 Cal. 140; 26 Pac. Rep. 797; also see March 31, 1891; see Stut. iHyi. p. 
 
 In Re Bonds of Madera Irrigation 24.^, Sec. I. 
 District, 92 Cal. 296; 28 Pac. Rep. 
 272.
 
 564 IRRIGATION IN CALIFORNIA. [^ 370-373 
 
 Directors sitting as a Board of Equalization; and that the 
 board may change the valuation as ma}' seem just. 
 
 § 371. Levying of Assessments to Pay Interest on Bonds. 
 
 — " Sec. 22. The Board of Directors shall then levy an assess- 
 ment sufficient to raise the annual interest on the outstanding 
 bonds, and at the expiration of ten years after the issuing of 
 bonds of any issue must increase said assessment to an amount 
 sufficient to raise a sum sufficient to pay the principle of the 
 outstanding bonds as they mature." When collected the 
 assessment shall be paid into the district treasury, and shall 
 constitute a special fund, to be called the " Bond Fund of 
 
 Irrigation District." 
 
 Provisions are also made in case of the neglect or refusal of 
 the Board of Directors to cause such assessment and levy to 
 be made that the assessment of the property made by the 
 County Assessor shall be adopted, and shall te the basis of 
 assessments for the district. And in case of the neglect or re- 
 fusal of the Treasurer of the district to perform the duties im- 
 posed by law then the Tax Collector and Treasurer of the 
 county must respectively perform such duties, and shall be 
 accountable therefor upon their official bond, as in other 
 cases. ^ 
 
 §372. Lien of Assessment. — "Sec. 23. The assessment 
 upon real property is a lien against the property assessed from 
 and after the first Monday in March for any year, and the lien 
 for the bonds of any issue shall be a preferred lien to that for 
 any subsequent issue, and such lien is not removed until the 
 assessments are paid or the property sold for the payment 
 thereof." 2 
 
 § 373. Collection of Assessments how Made. — Delinquent 
 Assessments. — Sec. 24 provides that on or before the first 
 day of November of each year the Secretary must deliver the 
 assessment books to the Collector of the district, who shall 
 publish a notice that said assessments are due and payable 
 
 1 As amended by Act approved 3 As amended by Act approved 
 
 March 20, 1891; see vStat. 1891. p. March 20, 1891; Stat. 1S91, p. 149, 
 149, Sec. 2. Sec. 3.
 
 §37;3.:>74; IKKIliATlOX IN OALIFOHXIA. .">«5 
 
 and will become delinquent at six o'clock l\ M. on tlic last 
 Monday in December next thereafter. The section also pro- 
 vides for the time and place of collection of the assessments; 
 and also, " On the last Monday in December at six o'clock 
 P. M. of each year all unpaid assessments are delintjuent, and 
 thereafter the Collector must collect thereon for tht- use of the 
 district an addition of five per cent." • 
 
 Sec. 25 provides for the publication of the deliiuiueni iisi, 
 designating the time and place of the sale of the proi)erty for 
 the payment of the assessment, with accrued costs. It also 
 provides that the time of sale must not be less than twenty- 
 one nor more than twenty -eight days from the first pub- 
 lication.^ 
 
 Sec. 26 provides that the Collector must collect, in addi- 
 tion to the assessments due on the assessment lists and five 
 per cent, added, fifty cents on each lot assessed. Also, that 
 on the date fixed for the sale, or some subseijuent day to 
 which the Collector maj' postpone it. he must commence the 
 sale of property advertised and continue the same until com- 
 pleted, but the sale must be completed within three weeks 
 from the first day fixed. ^ 
 
 §374. Sale of Property. — Collector's Certilinile— Sec. 27 
 
 provides that " The owner or person in possession of any 
 real estate offered for sale for assessments due thereon may 
 designate in writing to the collector, prior to the .sale, what 
 portion of property he wishes sold, if less than the whole; " 
 if no such designation is made then the Collector must sell 
 the smallest portion of the interest and ])ay the assessments 
 and costs due. But in case there is no purchaser in gi^od 
 faith for the property when it is offered for sale the wiiole 
 amount of the property assessed shall be struck offto the irri- 
 gation district.' 
 
 1 As amended by Act approved :<.\s.iineiide<l by Act approved 
 
 March 31, 1891; Stal. 1S91, p. 245. Marcb 31, 1S91; st-c Stat. iS<,i. p. 
 
 Sec. 2. 246, Sec. 4. 
 
 2! As amended by Act .-ii)])roved ' .\s atnentlcd \>y .\cl approved 
 
 March 31, 1891; see Stat. 1891, p. leb. 16, 1889; sec SUil. 18S9, p. 15. 
 
 245, vSec. 3. See recent case of Sec. 3; 5 DccrinK. 204. 
 Decker vs. Terry, 35 PacRej). 1017.
 
 566 IRRIGATION IN CALIFORNIA. [§374-376 
 
 Sec. 28 provides what the Collector's certificate to the 
 purchaser of the land shall contain. And "On filing the cer- 
 tificate with such County Recorder the lien of the assessments 
 vests in the purchaser and is only divested by the payment to 
 him, or the Collector for his use, of the purchase-money and 
 two per cent, per month from the day of the sale until re- 
 demption." 
 
 § 375. Time and Manner in which Property may he Re- 
 deemed. — Sec. 29 provides "A redemption of the property 
 sold may be made by the owner or any party in interests with- 
 in twelve months from the date of the purchase. * * * 
 If the property is not redeemed within twelve months from 
 the sale the Collector or his successor in office must make to 
 the purchaser or his assignee a deed to the property." 
 
 This section was supplemented by an Act approved March 
 10, 1891,^ which provided that in all cases where property has 
 been sold for delinquent assessments, under the provisions of 
 the Act of March 7, 1887, and an irrigation district has 
 become the purchaser, and has not disposed of the same, the 
 person whose estate has been sold, or his successors in in- 
 terest, may redeem such property by paying to the Treasurer 
 of the district wherein the property is situated the amount of 
 the assessments due thereon at the time of the sale, with in- 
 terest thereon at the rate of two per cent, per month; and also 
 all assessments that were a lien upon the property at the time 
 the assessments became delinquent; and also for each year 
 since the sale for which assessments had not been paid and 
 also all costs and expenses and fifty per cent, penaltj'-, which 
 may have accrued by reason of such delinquency and sale, 
 and the cost and expenses of redemption as herein specified. 
 The Act also provides for the contents of the certificate of 
 redemption and the Treasurer's receipt. 
 
 §376. Deeds.— Validity of Sale.— Time and Manner of 
 Settlement. — Sec. 30 provides that the matter recited in the 
 certificate of sale must be recited in the deed, and that the 
 deed conveys to the grantee the absolute title to the lands 
 described therein free of all incumbrances. 
 
 1 See Stat. 1B91, p. 53.
 
 § 376-378J IRRiaATIOX IN CALIKMHNIA. 507 
 
 Sec. 31 provides that the certificate of the Collector is 
 prima Jacie evidence of the assessment, the property assessed. 
 the delinquency, the amounts of assessments due and unpaid', 
 and that all forms of law in relation to the assessments have 
 been complied with. 
 
 Sec. 32. That no misnomer of the owner or other mistake 
 relating to the ownership of the property affects the sale or 
 renders it void or voidable. 
 
 Sec. T,2> provides the time and manner of settlement the 
 Collector must make with the Secretary of th. Hoard. 
 
 §377. Payment of ('oiipoiis.— Payment ami Kodeiiiptioii 
 of Bonds.— Sec. 34. Provides that upon preseiitatii.n of the 
 coupons due to the treasurer he shall pay the same from the 
 bond fund. And it also provides that whenever, after ten 
 years from the issuance of the bonds, the fund shall amount 
 to $10,000, the treasurer may pay such an amount of said 
 bonds not due as the money in said fund will redeem at the 
 lowest value at which they may be offered for liquidation. It 
 also provides for the advertising for sealed proposals for the 
 redemption of the bonds, and the lowest bid for said bonds 
 must I. e accepted, />;w7V/^^. that no bond shall be redeemed 
 at a rate above par. 
 
 § 37s. Contracts for Constrnction of Ditches and Canals.— 
 
 " Sec. 35. After adopting a plan of said canal or canals, stor- 
 age reservoirs and works, the Board of Directors shall give 
 notice, by publication thereof, not less than twenty days in 
 one newspaper published in each of the counties composing 
 the district (provided a newspaper is published therein), and 
 in such other newspapers as they may deem advisable, calling 
 for bids for the construction of such work of any portion 
 thereof; if less than the whole work is advertised then the 
 portion so advertised must be particularly described in such 
 notice. Said notice shall set forth that plans and specifica- 
 tions can be seen at the office of the board, and that the 
 board will receive sealed proposals therefor, and that the con- 
 tract will be let to the lowest responsible bidder, stating the 
 time and place for opening said proposals, which, at the time
 
 568 IRRIGATION m CALIFORNIA. [§378,379 
 
 and place appointed, shall be opened in public, and as soon 
 as convenient thereafter the board shall let said work, either 
 in portions or as a whole, to the lowest responsible bidder; or 
 they may reject any or all bids and readvertise for proposals, 
 or may proceed to construct the work under their own super- 
 intendence. Contracts for the purchase of material shall be 
 awarded to the lowest responsible bidder. Any person or 
 persons to whom the contract may be awarded shall enter 
 into a bond with good and sufficient sureties, to be approved 
 by the board, payable to said district for its use, for twenty- 
 five percent, of the amount of the contract price, conditioned 
 for the faithful performance of said contract. The work shall 
 be done under the direction and to the satisfaction of the 
 engineer and be approved by the board. "^ 
 
 § 371). Payiueiits of ('laiiiis. — Payments from Construc- 
 tion Fund. — Sec. 36. Provides, " No claim shall be paid by 
 the treasurer until allowed by the board, and only upon a 
 warrant signed by the president and countersigned bj^ the 
 secretary." But the section provides that the board may 
 draw from time to time from the construction fund and de- 
 posit in the county treasurj' of the count}- where the ofl&ce 
 of the board is situated an 3^ sum in excess of $25,000. The 
 county treasurer to pay out the same or any portion thereof 
 to the treasurer of said district and only upon order of the 
 board . 
 
 " Sec. 37. The cost and expense of purchasing and acquir- 
 ing property and constructing the works and improvements 
 herein provided for shall be wholl}^ paid out of the construc- 
 tion fund. For the purpose of defraying the expenses of the 
 organization of the district and of the care, operation, manage- 
 ment, repair and improvement of such portions of said canal 
 and works as are completed and in use, including salaries of 
 of&cers and emploj'^es, the board may either fix rates of tolls 
 and charges and collect the same from all persons using said 
 canal for irrigation and other purposes, or the^^ may provide 
 
 1 As amended by an Act approved March 20, 1891; see Stat. 1891, p. 
 146, Sec. 7.
 
 §379-381] IRRIGATION IN CALIKOUNIA. :»69 
 
 for the paymeut of said expenditures by a levy of xssessraents 
 therefor or by both said tolls and assessments; if by the latter 
 method such levy shall be made on the completion and equali- 
 zation of the assessment roll, and the board shall have the 
 same powers and functions for the purposes of said levy as 
 are now possessed by the boards of supervisors in this State. 
 The procedure for the collection of assessments by such levy, 
 shall in all respects conform to the provisions of this Act re- 
 lating; to the payment of principal and interest of bonds herein 
 provided for." 
 
 § SSO. Powers of the Hoard.— " Sec. >s. The Board of 
 Directors shall have the power to construct the said works 
 across any stream of water, water course, street, avenue, 
 highwa}', railway, canal, ditch or flume which the route of 
 arid canal or canals may intersect or cross, in such maimer as 
 to afford security for life and property: but said board shall 
 restore the same, when so crossed or intersected, to its former 
 state as near as may be or in a sufficient manner not to have 
 impaired unnecessarily its usefulness, and every company 
 whose railroad shall have been intersected or crossed by said 
 works shall unite with said board in forming said intersec- 
 tions and crossings and grant the privileges aforesaid; and if 
 such railroad company and said board or the owners and con- 
 trollers of the said property, thing or franchise so to be 
 crossed, cannot agree upon the amount to be paid therefor, or 
 the points or the manner of said crossings or intersections, the 
 same shall be ascertained and determined in all respects as is 
 herein provided in respect to the taking of land. The right 
 of way is hereby given, dedicated and set ai)art, to locate, 
 construct and maintain said works over and llirough any ol 
 the lands which are now or may be the jjrojK-rty o( tliis State: 
 and also there is given, dedicated and set apart for the uses 
 and purposes aforesaid, all waters and water-ri),dits belon^'ing 
 to this State within the district." 
 
 ^:iSl. Siihir.v of Dim-lors. Olllnis Not lo hv Iiilere^tod 
 in Coiiiracts.- Special Elections. Sec yj. Trovido im the 
 salary and i)er diem of tlu- dirtitors and other oflicer^.
 
 570 IRRIGATIOX IN OALIFORXIA. [§ 381-383 
 
 " Sec. 40. No director or any other officer named in this 
 Act shall in any manner be interested, directly or indirectly, 
 in any contract awarded or to be awarded by the board or in 
 the profits to be derived therefrom; and for any violation of 
 this provision such officer shall be deemed guilty of a misde- 
 meanor, and such conviction shall work a forfeiture of his 
 office and he shall be punished by a fine not exceeding five 
 hundred dollars or by imprisonment in the county jail not ex- 
 ceeding six months or by both such fine and imprisonment." 
 
 Sec. 41. Provides "The Board of Directors may, at any 
 time, when in their judgment it may be advisable, call a 
 special election and submit to the qualified electors of the dis- 
 trict the question whether or not a special assessment shall be 
 levied for the purpose of raising money to be applied to any 
 of the purposes provided in this Act." Specific rules are 
 then laid down for the conduct of the election. 
 
 § 382. Limit of Power of Board to Incur Indebtedness.— 
 
 " Sec. 42. The Board of Directors or other officers of the dis- 
 trict shall have no power to incur any debt or liability what- 
 ever, either by issuing bonds or otherwise, in excess of the 
 express provisions of this Act; and any debt or liability in- 
 curred in excess of such express provisions shall be and re- 
 main absolutely void, except that for the purpose of organiza- 
 tion or for any of the purposes of this Act, the Board of Di- 
 rectors may, before the collection of the first assessment, 
 incur an indebtedness not exceeding in the aggregate the 
 sum of two thousand dollars, and may cause warrants of the 
 district to issue thereof, bearing interest at seven per cent, 
 per annum. "^ 
 
 § 383. Apportionment of Water.— Duty of Directors.— 
 
 " Sec. 43. In case the volume of water in any stream or river 
 shall not be sufficient to supply the continual wants of the 
 entire country through which it passes and susceptible of ir- 
 rigation therefrom, then it shall be the duty of the water 
 commissioners constituted as hereinafter provided to apportion 
 
 lAs amended bj^ Act approved March 20, 1S91; Stat. 1891, p. 147, 
 Sec. 8.
 
 ^383-386] IKKItiATIoN IN CALIFORNIA. 571 
 
 in a just and equitable proportion a certain amount of said 
 water upon certain or alternate weekly days to different local- 
 ities, as they may in their judgment think best for the interest 
 of all parties concerned and with due regard to the legal and 
 equitable rights of all. Said water commissioners shall 
 consist of the chairman of the Board of Directors of each of 
 the districts affected." 
 
 " Sec. 44. It shall be the duty of the Board of Directors to 
 keep the water flowing through the ditches under their con- 
 trol to the full capacity of such ditches in times of high 
 water." 
 
 ^SS4. Act Not to Effect Xavijjration or Miniiii; Imlustr.v.— 
 
 " Sec. 45. Navigation shall never in anywise be impaired by 
 the operation of this Act, nor shall any vested interest in or 
 to any mining water-rights or ditches or in or to any water- 
 rights, or reservoirs or dams now used by the owners or pos- 
 sessors thereof, in connection with any mining industry «>r by 
 persons purchasing or renting the use thereof, or in or to any 
 other property now used directly or indirectly in carrying on 
 or promoting the mining industry, ever be affected by or 
 taken under its provisions, save and except that rights ot way 
 may be acquired over the same." 
 
 §:^S5. Act Not to Effect Existiiiu: Laws or Kiu'lits Ac- 
 quired.— " Sec. 46. Noneof the provisions of this Act shall be 
 construed as repealing or in any wise modifying the provisions 
 of any other Act relating to the subject of irrigation or water 
 commissioners. Nothing herein contained shall be deemed 
 to authorize any person or persons to divert the waters ot any 
 river, creek, stream, canal or ditch from its channel to the 
 detriment of any person or persons having any interest ni 
 such river, creek, stream, canal or ditch or the waters therein, 
 unless previous compensation be ascertained and paid there- 
 for, under the laws of this State authorizing the takitig of 
 private property for public uses." 
 
 § 38(>. Kcdiiclioii of IJomlcd Indcldediiess. Election 
 Therefor.— An Act sui)plenRnlal t<» ilu- Act «.f March 7. 1H.S7, 
 providing for rt-ducing tlu- b .i.d.-<l in<lebte<lness of any irriga-
 
 572 IRRIGATION IX CALIFORNIA. [^386,387 
 
 tion district was approved on March 23, 1893.^ The Act 
 provides that whenever the Board of Directors of an irrigation 
 district organized under and pursuant to the provisions of the 
 original Act, " Shall determine that the authorized bonded 
 indebtedness of such irrigation district is greater than such 
 district is liable to need to complete its system as planned, 
 and there be no outstanding bond, the Board of Directors may 
 call a special election upon a proposition to reduce such 
 bonded indebtedness to such sum as the board may determine 
 to be sufficient for such purpose." The Act also provides, 
 that an election shall be held for the purpose in the same 
 manner as other elections held under the provisions of the Act- 
 Specific rules are laid down for the conduct of the election, 
 canvass of the votes and supplementary proceedings, and 
 tor obtaining the assent of the bondholders in case there be 
 an}' outstanding bonds of the districts. 
 
 § 387. Aft to Provide for the Leasiiii? of Water for Me- 
 chauiciil Purposes by Irrigatiiii? Districts. — Also an Act to 
 provide for the leasing and disposition of water for generation 
 of power for mechanical purposes b)' irrigation districts was 
 approved on March 23, 1893.- The Act provides that when- 
 ever an irrigation district may have opportunity to utilize the 
 water owned or controlled by it for mechanical purposes, not 
 inconsistent with the provisions of the Act, the Board of Di- 
 rectors may lease the same. It also provides that notice of 
 intention to lease the waters ma}- be published, calling for 
 bids, and also stating that the lease will be let to the highest 
 responsible bidder, stating the time and place of opening said 
 proposals. It also provides that the board shall let said lease 
 in portions or as a whole to the highest responsible bidder. 
 The rental accruing upon said lease ma}' vary from year to 
 year, as shall be specified in the lease and shall be payable 
 semi-annually. All moneys collected for rental shall be paid 
 into the treasury and be used in the manner provided in 
 Section 34 of the original iVct. 
 
 Sec. 5 of the Act provides that: "The board shall have 
 power, as in this Act provided, to execute a lease for any 
 
 1 Stat. 1893, p. 275. -Stat. 1S93, p. 295.
 
 §387,388] IHKUiATIoN l.\ .AI.IF.MIXIA. .-,7;5 
 
 period not exceeding fifty years, h .11 .uin una- ur- iciita.N 
 shall not be paid on the days hereinbefore mentioned the 
 amount of such rental then due shall be doubled and if not 
 paid within ninety days thereafter the said lease shall be for- 
 feited to said district, together witli any and all works con- 
 structed, owned, used or controlled by said lessee." 
 
 Sec. 6 provides that: "Upon the letting of any lease a^, in 
 this Act provided, the board may require the lessee to execute 
 a bond for the payment of the rental and proper performance 
 of the said lease or give such other evidt n. of g(K)d faith as 
 in their judgment may be necessary." 
 
 §388. Disori^aiiiziitioii ami Aljaiulouiuciit 1>\ lrrii;alioii 
 Districts. — Another Act supplemental to the Act of March 
 
 7, 1887, providing for the abandonment of operations by irri- 
 gation districts and for their disorganization upon the dis- 
 charge of all outstanding obligations, and dividing irrigation 
 districts into classes was approved March 25, iSy^v' The Act 
 provides that for its purposes irrigation districts are divided 
 into three classes based upon the amount of acreage in each 
 district respectively. Also that whenever a petition is pres- 
 ented to the Board of Directors of an irrigation district, 
 signed by a majorit}- of the assessment ])ayers within said 
 district, asking for the abandonment (jf further operations bv 
 the district, the Board of Directors of said district shall call 
 a special election at which the question of such abandonment 
 of further operations by the district shall be submitted. The 
 Act prescribes specific rules for the conduct of the election, 
 form of ballots to be used to be voted at said election: also that 
 no further bonds shall be issued; that the (juestion (»f abatulou- 
 ment shall not be submitted oftener than once in two years: 
 that the directors shall sell and dispose of all of the property 
 as soon after such vote to abandon such operation as it can be 
 done without sacrifice; that the property of the district 
 shall be advertised for sale and shall be sold; that the j>roi)erl\ 
 may be sold for part cash and j)art deferred i)ayment bearing 
 interest at the legal rate; that the sale shall not eflect or im- 
 pair the lien of any outstanding bonds of said district. The 
 
 1 Sec Slat. |H(^,",, ;>. .S20.
 
 574 IRRIGATION IN CALIFORNIA. [^388,389 
 
 money received for the propert5^ after paying the expenses of 
 the district, salaries of the officers and all other bona fide 
 debts of the district, shall be applied to the redemption of 
 the outstanding bonded indebtedness of the district or in- 
 vested as provided in Sec. 34 of the Wright law. That upon 
 final abandonment, whenever all the property of such irriga- 
 tion district shall have been disposed of, and all obligations 
 thereof shall have been paid and thirty days shall have 
 expired after such vote, the directors of the district shall file 
 in the Superior Court of the county a petition setting forth 
 the facts and praying that a decree be made and entered dis- 
 organizing said district. The Act also provides that all 
 books, papers and records are to be delivered to the Clerk of 
 the Court; and it is the duty of the Court, on filing the 
 petition, to order a copy to be published stating the time of 
 the hearing. At or before the time of the hearing of the 
 petition any person may show cause, if any he have, why the 
 said petition should not be granted. If upon the hearing the 
 facts set up in the petition are proven it shall be the duty of 
 the Court to make findings in accordance with such allegations 
 and proof, and to enter a judgment and decree disorganizing 
 the district. 
 
 V. Construction of California Irris^ation District Law. 
 
 % 3S9. Natnre of Irrigation Districts as Organized Under 
 the Act. — It is held by the Supreme Court of California that 
 the Legislature may by general laws authorize the inhabitants 
 of any district, under such restrictions and with such prelimi- 
 nary steps as it may deem proper, to organize themselves into 
 a public corporation for governmental purposes, and such cor- 
 porations need not be required to be formed in the same 
 manner or provided with the same powers as municipal cor- 
 porations of a different class. Also it is held that an irriga- 
 tion district organized under the Wright Act becomes a public 
 corporation, and its officers become public officers of the 
 State .^ And Mr. Justice Harrison in the opinion said, in the 
 
 lln re Bonds of Madera Irrigation District, 92 Cal. 296, 318; 28 Pac. 
 Rep. 675-
 
 §389] IRKIGATION IN <ALI FuKN 1 A. T)?.') 
 
 case of 111 Re Bonds of Madera Irrigation District, supra: 
 " Inasmuch as there is no restriction upon the power of the 
 Legislature to authorize the formation of such corporations 
 for an}- public purpose whatever, and as when organized they 
 are but mere agencies of the State in local goveniment, with- 
 out any powers except such as the Legislature may confer 
 upon them, and are at all times subject to a revocation of such 
 power, it was evidently the purpose of the framers of the 
 Constitution to leave in the hands of the Legislature full 
 discretion in reference to their organization 
 
 " In the present case the Legislature has chosen to author- 
 ize the creation of a public corporation in the manner and 
 with the forms specified in the Act under discussion. * * • 
 That an irrigation district organized under the Act in question 
 becomes a public corporation is evident from an examination 
 of the mode of its organization, the purpose for which it is 
 organized and the powers conferred upon it. It can l)e or- 
 ganized only at the instance of the Hoard of Supervisors of 
 the county — the legislative body of one of tlie constitutional 
 subdivisions of the State; its organization can be etTeeted only 
 upon the vote of the qualified electors within its boundaries; 
 its ofi&cers are chosen under the sanction and with the formali- 
 ties required at all public elections in the State — the officers 
 of such election being required to act under the sanction of 
 an oath, and being authorized to administer oaths when re- 
 quired for the purpose of conducting the election; and theoffi- 
 cers, when elected, l)eing required to execute official bonds to 
 the State of California, approved by a judge of the Superior 
 Court. The district officers thus become public officers of 
 the State. When organized the district can aetjuirc, either by 
 purchase or condemnation, all property necessary for the con- 
 struction of its works, and may construct thereon canals and 
 other irrigation improvements, and all property so actjuired is 
 to be held by the district in trust and is dedicated for the u.se 
 and purposes set forth in the Act, and is declared to be a public 
 use, subject to the regulation and control of the Slate. For 
 the purpose of meeting the cost of acquiring thi» properly 
 the district is authorized, upon the vote of the majoiily of its 
 electors, to issue its bonds, and these bonds and the interest
 
 576 IRRIGATION IN CALIFORNIA. [§ 389 
 
 thereon are to be paid by revenues derived under the power 
 of taxation, and for which all the real property in the district 
 is to be assessed. Under this power of taxation — one of the 
 highest attributes of sovereignty — the title of the delinquent 
 owner to the real estate assessed may be divested by sale, and 
 power is conferred upon the Board of Directors to establish 
 equitable bj'-laws, rules and regulations for the distribution 
 and use of water among the owners of said lands, and gener- 
 ally to perform all such acts as shall be necessary to fulh' 
 carry out the purposes of the Act. Here are found the essen- 
 tial elements of a public corporation, none of which pertain 
 to a private corporation. The property held by the corpora- 
 tion is in trust for the public and subject to the control of the 
 State. Its officers are public officers, chosen by the electors 
 of the district, and invested with public duties. Its object 
 is for the good of the public and to promote the prosperity 
 and welfare of the public. ' When a corporation is composed 
 exclusively of officers of the government, having no personal 
 interest in it or with its concerns, and only acting as organs 
 of the State in effecting a great public improvement, it is a 
 public corporation.' (Angell and Ames on Corporations, 
 Sec. 32.) ' A municipal corporation proper is created mainly 
 for the interest, advantage and convenience of the locality 
 and of its people. The primarj^ idea is an agency to regulate 
 and administer the interior concerns of the locality in matters 
 peculiar to the place incorporated and not common to the 
 State or people at large.' (15 Am. & Eng. Ency. of Ivaw, 
 954.) ' Public corporations are such as are created for the 
 discharge of public duties in the administration of civil gov- 
 ernment.' (Eawson's Rights and Remedies, Sec. 332.) " 
 
 The decision thus held that an irrigation district organized 
 under the Act was "a public corporation," as distinguished 
 from private corporations, in the broad sense of the term, and 
 that the district was not confined to a strict and more narrow 
 limits of "municipal corporations." ^ 
 
 1 " A municipal corporation, in inhabitants of a city or town for 
 
 its strict and proper sense, is the the purposes of local government 
 
 body politic and corporate consti- thereof. Municipal corporations 
 
 tuted by the incorporation of the as they exist in this country are
 
 .^ 390] 
 
 lUKHiATlo.N IN CALIFORNIA. 
 
 §3yi>. Coustilutioiiiilit.v ol" llio - Wriixlil l.iw " The 
 " Wright Law " has been repeatedly declared by the Supreme 
 Court of California to be constitutional, althoui^h it has been 
 attacked from nearly every possible point. 
 
 One of the first cases wherein the constitutionality ot the 
 Act was involved was that of the Turlock Irrigation District 
 vs. Williams, decided on May 31, 18SS,' where the Court 
 held that: The Act relative to condemnation of private prop- 
 erty, land, water, etc., for the uses prescribed therein was 
 constitutional. And Mr. Justice Foot, in rendering the 
 opinion of the Court, said: " The provisions of the Act rela- 
 tive to the condemnation of private property, lands, water, 
 etc., for the uses prescribed therein are in harmony with the 
 constitution and State laws, and in strict consonance with the 
 views of the Supreme Court in the case of Lux vs. Haggin."- 
 
 In the case of Crall vs. The Board of Directors of Poso 
 Irrigation District,-^ the Supreme Court also held that the 
 Wright Law providing for the organization of irrigation dis- 
 tricts was constitutional. And Mr. Justice Belcher, iii ren- 
 dering the opinion of the Court upon the subject, said: 
 "There can be no longer any question that the Wright Act 
 
 bodies politic and corporate of 
 the general character above 
 described, established by law 
 partly as an agency of the State to 
 assist in the civil government of 
 the country, but chiefly to regu- 
 late and admiiiisler the local or 
 internal affairs of the city, town 
 or district which is incorporated." 
 Dillon's Municipal Corporations, 
 Vol. I, § 19 {9^>)- 
 
 See also Central Irv. Co. vs. De 
 Lappa, 79 Cal. 351; 21 I'ac. Rep. 
 825, where it was held that irriga- 
 tion districts are public ccrpora- 
 tions to the same extent as re- 
 clamation districts. 
 
 Also in the case of Turlock Irr. 
 Co. vs. Williams, 76 Cal. 360; iS 
 Pac. Rep. 379, it was held that the 
 
 irrigation districts provi<led for in 
 the Act are quasi public corpora-' 
 tions in the sense that the pur- 
 poses for which they are to be or- 
 ganized is for the public benefit. 
 
 As to reclamation <listricts see 
 Dean vs. Davis, 51 Cal. 410, 41 1; 
 People vs. Rec. District, 53 Cal. 
 318; People vs. Willinms, 56 Cal. 
 647; Hoke vs. Perdue, 62 Cnl. 546; 
 Peoj)le vs. Larue, 67 Cnl. 52S. 
 
 lUit sec Board of Directors .Mid 
 die Kittitas Irr. District vs. Pi-ter 
 son, 4 Wash. 147; 99 I'ac Kej). 
 995: post Section 423. 
 
 1 76 Cal. 360; i8 Pnc. Rep. 370. 
 
 -69 Cal. 302-305; see Ante Ser 
 tion 357- 
 
 HS7 Cal. Ljn; 2(> Par. Kcp. 79')
 
 578 IRRIGATION IN CALIFORNIA. [§390,391 
 
 is constitutional, and that irrigation districts organized under 
 its provisions, like reclamation districts, are public corpor- 
 ations." ^ 
 
 In the case of Board of Directors of Modesto Irrigation 
 District vs. Tregea,^ the Supreme Court held that: The iden- 
 tity of the irrigation district is not destroyed by the exclusion 
 of part of the land therefrom; and if at the time of the ex- 
 clusion the district had no indebtedness, and no person after 
 the notite objected to the exclusion, there was no basis for 
 any claim of injustice or violation of any constitutional right. 
 And Mr. Chief Justice Beatty, in rendering the opinion of the 
 Court upon the subject of the constitutionality of the law, 
 said: " We construe the law to mean that the board may in- 
 clude in the boundaries of the district all lands which in their 
 natural state would be benefited by irrigation and that are 
 susceptible of irrigation on one system, regardless of the fact 
 that buildings or other structures may have been erected here 
 and there upon small tracts, which are hereby rendered unfit 
 for cultivation, at the same time that their value for other 
 purposes may have been greatly enhanced. So construed we 
 can see no objections to the law upon constitutional grounds 
 or grounds of expediency." 
 
 § 391. Same.— Authorities.— In the exceedingly well-con- 
 sidered case of In the matter of the bonds of the Madera 
 Irrigation District =^ the constitutionality of the Act was 
 attacked upon a number of distinct grounds: 
 
 I St. That the law was repugnant to the Fourteenth Amend- 
 ment to the Constitution of the United States and of Sections 
 13 and 14 of Article I. of the Constitution of California, in 
 this, that it provides for the taxation of lands of private indi- 
 viduals in limited districts for the benefit of lands of the 
 State and the United States. 
 
 2nd. That the law was unconstitutional because the method 
 of assessments provided for is upon the ad valor urn system, 
 
 1 Citing Turlock Irr. District vs. 2 88 Cal. 334; 26 Pac. Rep. 237. 
 
 Williams, 76 Cal 360; Central Irr. ^92 Cal. 296; 28 Pac. Rep. 675. 
 
 District vs. De Lappa, 79 CaL 351.
 
 §391] IRRIGATION IN CALIt\)RXIA. aTU 
 
 and does not take into consideration the benefits to be con- 
 ferred upon taxable lands. 
 
 3rd. The Act is uaconstitutioual because under pretense of 
 furnishing irrigation facilities for agricultural lands it allows 
 towns, villages and cities to be included in irrigation districts. 
 
 4th. That if the Court should conclude that it was com- 
 petent for the legislature to establish over any given piece of 
 territory in this State as many different corporations as there 
 are separate public wants, yet the legislature is prohibited by 
 the constitution from enacting a law under which any munici- 
 pal corporation may, by a bare majority vote, incur any in- 
 debtedness exceeding in any year the income and revenue 
 provided for it for such year. 
 
 5th. That the Act was unconstitutional because no notice 
 or opportunity for a hearing is given to the land owners. 
 
 6th. That the legislature had no constitutional power to 
 pass the Act. 
 
 7th. That the Act was unconstitutional because it provides 
 for issuing bonds and making assessments to assist in specu- 
 lation and provides no limit to expenses; and in that respect it 
 takes private property without compensation or due process of 
 law and denies to the owners the equal protection of the laws. 
 
 8th. That it was unconstitutional, as being in contravention 
 of Sections 4 and 6 of Article XI. of the Constitution of Cal- 
 ifornia, as it authorizes the creation of municipal corporations 
 contrary to the system of municipal government provided for. 
 
 9th. That the Act was unconstitutional, in that it is special 
 legislation and in violation of subdivisions 10, 11, 2^, 2S and 
 33 of Section 25 of Article IV. of the constitution. 
 
 loth. That the Act was an unconstitutional delegation of 
 the power of the legislature in that it considered tin- districts 
 as municipal corporations. 
 
 nth. Tliat the Act is in violation ol Section 5, Aiiieie XI. 
 of the Constitution of California, as the first section of the 
 Act provides for a petition to the Board of Supervisors of the 
 county in which the land "or the greatest portion thereof" 
 
 is situated. 
 
 1 2th. That the Act was unconstitutional because it exacts 
 from the taxpayer more than the cost of the improvement.
 
 580 IRRIGATION IN CALIFORNIA. [§ 391, 392 
 
 Upon all of these points the Supreme Court held that the 
 Wright Act is within the power of the legislature to enact; 
 and that its provisions -for the organization, management and 
 control of such districts, and those regulating the mode of 
 assessments upon the lands therein with which to meet the 
 bonds authorized by the Act are constitutional and valid. ^ 
 
 § 303. Proceedings for Coiifirnijitioii of Orgauiztition. — 
 
 In the case of Crall vs. Board of Directors of Poso Irrigation 
 District," the Court held that a special proceeding by the 
 directors of an irrigation district brought under the Act sup- 
 plemental to the Wright Act,^ providing for special proceed- 
 ings in the Superior Court for the confirmation of the 
 organization of the district and of the issue and sale of bonds, 
 is in the nature of a proceeding in rem to determine the status 
 of the district and its power to issue valid bonds. 
 
 Also it was held In re Madera Irrigation District^ that in a 
 proceeding for confirmation of the organization of an irriga- 
 tion district, where the organization is controverted by the 
 answer, it is necessary for the directors of the district to make 
 proofs to the Court, under the ordinary rules of evidence, that 
 a petition was presented to the supervisors, signed by fifty or 
 a majority of the freeholders owning land within the pro- 
 posed district; and that the execution of such petition cannot 
 be proved by recital in the records of the Board of Supervisors, 
 nor can the petition itself be properly received in evidence 
 without proof of its execution and that the signers were 
 freeholders of the district. 
 
 iSee the very exhaustive opin- not subject to the constitutional 
 
 ioa by Harrison, Judge. provisions respecting taxation, but 
 
 Also see case of Tregea vs. Ow- may be levied upon all real prop- 
 ens, 94 Cal. 317; 29 Pac. Rep. 143, erty within the district without 
 where the Court held: That an as- deducting from the value of such 
 sessment levied under the provi- property any mortgages existing 
 sions of the Wright Act upon the thereon. 
 
 property within an irrigation dis- 287 Cal. 140; 26 Pac. Rep. 797. 
 
 trict, organized thereunder, al- 3. See ante Sec. 368 note; Stat, 
 
 though referable to the power of 1889, p. 212; 5 Deering, 299. 
 taxation, is a distinct tax, and is 4 ga Cal. 296; 289 Pac. Rep. 675.
 
 §392,393] IRRIGATION IN CALIFORNIA. 581 
 
 In the case of Palmdale Irrigation District vs. Rathkc' it 
 was held that the supplemental Act of March i6, iSSy, supra, 
 relatinij to proceedings for the determination of the validity 
 of an irrigation district, requires an appeal from thejudgmeut 
 to be taken within ten days after entering of judgment, and 
 that an appeal taken from such judgment more than ten days 
 after the entry of the judgment is not in time an'd will be 
 dismissed. 
 
 § 393. Prot'eetliiii; for tlu» ('(nifinu:itiou of Bonils. — In 
 
 the case of Crall vs. Board of Directors i>i Poso Irrigation 
 District^ it was held that the special proceedings by the 
 directors of an irrigation district brought under the Act sup- 
 plemental to the Wright Act,-* providing for the special pro- 
 ceedings in the Superior Court for the confirmation of the 
 organization of the district and for the issue and sale of bonds 
 is in the nature of a proceeding m rem to determine its power 
 to issue valid bonds and the status of the district. In such 
 proceeding constructive service of process by publicali«)n and 
 posting, as prescribed by the Wright Act, is sufficient to give 
 the Court jurisdiction of the subject matter and of the par- 
 ties, and its judgment is valid and binding as against them 
 and all the world upon all questions involved in the case until 
 reversed on appeal or set aside by some direct proceedings in- 
 stituted for that purpose. 
 
 It was held in the case of Board of Directors of Modesta 
 Irrigation District vs. Tregea^ that in proceedings of this 
 nature for the judicial confirmation of the validity of bonds 
 of irrigation districts the publication as prescribed in the 
 Act of a notice of a filing of a petition is suflTicient to give 
 the Superior Court jurisdiction to render a judgment binding 
 upon the lands of the district and their owners, allirming the 
 regularity of the organization of the irrigation district and 
 the legality and validity of its orders for the issuance of its 
 bonds. The notice required to be published under the Act 
 is to be cfjiistrued and :iidt.(l bv refcreun- to tlu- stalntr. and 
 
 I91 Cal.53S; 27 Tac Kc-p. 7Sv Stat. iHSy, p. iia; S DrcrinK, 299. 
 
 287 Cal. 140; 26 I'ac. Kc-p. 797. < KS Cnl, .^24: 2r> I'lir. Kcp. 337 
 
 3 vSee ante Section 36.S note;
 
 582 IRRIGATION IN CALIFORNIA. [§393-395 
 
 is sufficient if it states the filing of the petition and the sub- 
 stance of the prayer thereof and in other respects conforms to 
 the statute. The proceeding under the statute is in rem, its 
 object being to establish the validity of the bonds as against 
 the irrigation districts and all persons interested therein; and 
 if the statute has been strictly complied with the judgment 
 will bind not only the parties appearing but all the world, 
 notwithstanding the fact that there has been no personal 
 service upon the land owners whose lands will be assessed for 
 the payment of the bonds. ^ 
 
 § 391. Proceeding to Include and Exclude Territory.— 
 
 It was held in the case of Board of Directors of The Modesto 
 Irrigation District vs. Tregea,^ that a city or town may be 
 included in an irrigation di:->trict if it be determined by the 
 supervisors that the lands comprising the city or town would 
 be benefited by irrigation.-'' The Board of Supervisors may 
 include in the boundaries of an irrigation district all lands 
 which in their natural state would be benefited by irrigation 
 and are susceptible of irrigation by one system, regardless of 
 the fact that buildings or other structures have been erected 
 upon small lots, which are thereby rendered unfit for cultiva- 
 tion. The decision of the Board of Supervisors upon the 
 question of fact as to what lands will or will not be benefited 
 by irrigation is final and conclusive and cannot be reviewed 
 by the Courts, although upon matters affecting their juris- 
 diction their orders may be open to review.'* 
 
 § 395. Same. — Continued. — Upon the subject of including 
 cities and towns in irrigation districts and taxing the prop- 
 erty within those municipal organizations to aid in the sup- 
 port of the irrigation district, Mr. Chief Justice Beatty, in the 
 case of Modesta Irr. Co. vs. Tregea, supra, said : " It ap- 
 
 lln re bonds of Madera Irriga- ^See Stat. 1889, p. 18; 5 Deering, 
 tion District, 92 Cal. 296; 28 Pac. 295; and Stat. 1889, p. 21; 5 Deer- 
 Rep. 272; Central Irrigation Dis- ing, 297, and Ante Section 360, 
 trictvs. De Lappe, 79 Cal. 351; 21 and note. 
 Pac. Rep. 825. 4 Ibid. 
 
 2 88 Cal. 334; 26 Pac. Rep. 237.
 
 §395] IRRIGATION IN CALIFORNIA. 
 
 583 
 
 pears from the record that the district as originally organized 
 contained about one hundred and eight thousand acres of 
 land, including the city of Modesta. a town covering about 
 two thousand acres, and having about three thousand inhab- 
 itants and about six hundred dwelling houses, besides shops. 
 stores, etc. 
 
 " One proposition of the appellants seems to be that the mere 
 fact of the corporate existence of a town or city, though sit- 
 uate in the midst of a district susceptible of irrigation by one 
 system, necessarily deprives the Board of Supervisors of the 
 county of the power to include any of the lands within the 
 corporate limits of such city or town in an irrigation district. 
 We say this seems to be a proposition of the appellant, be- 
 cause, although it is not expressly stated in terms, it appears 
 to be necessary to sustain his contention, for if it lies within 
 the discretion of the board to include in an irrigation district 
 any part of the lands of a town or city upon the ground that 
 in their judgment such part will be benefited by irrigation 
 under the system proposed, and if the jutlgnient of the board 
 upon the question of benefits is conclusive of the fact — as we 
 shall show that it is — there is no ground upon which a Court 
 can say that an order including all the lands of a city or town 
 in such district is void. 
 
 " The idea of a city or town is of course associated with the 
 existence of streets to a greater or less extent lined with shops 
 and stores, as well as of dwelling houses, but it is also a 
 notorious fact that in many of the towns and cities of Cali- 
 fornia there are gardens and orchards inside the corporate 
 boundaries requiring irrigation. It is equally notorious that 
 in many districts lying outside tlie c(jrporate limits of any 
 city or town there are not only roads and highways, but 
 dwelling houses, outhouses, warehouses antl shops. With 
 respect to those things which determine the usefulness of irri- 
 gation, there is only a difference of degree between town and 
 country. The advantages of irrigation to a town like River- 
 side, in San Bernardino county, for instance, no one could 
 deny, and the differences between such a town and those places 
 where irrigation would be as manifestly out of place are not 
 marked by any hard and fast lines which wouhl enable a Court
 
 584 IRRIGATION IN CALIFORNIA. [^395,396 
 
 to lay down a rule of discrimination. The question whether in 
 any particular case a town will as a whole be benefited directly 
 by the application of water for irrigation is in its nature, and 
 under existing conditions must remain, a question of fact to be 
 decided by that tribunal to whose discretion it has been com- 
 mitted by the legislature. It is very certain that the legisla- 
 ture intended that cities and towns should in proper cases be in- 
 cluded in irrigation districts, for the Act expressly provides 
 for the assessment and taxation according to their value, not 
 only of city and town lots, but also the improvements there- 
 on.^ And this feature of the law was made an argument 
 against its constitutionality in the case of Turlock Irrigation 
 District vs. Williams, 76 Cal. 360, in which its constitution- 
 ality was affirmed. Such having been the intention of the 
 legislature as is clearly apparent, and it being equally clear 
 and notorious as a matter of fact that there are cities and 
 towns which not only may be benefited by irrigation, but 
 actually have in profitable use extensive systems for irrigating 
 land within their corporate limits." 
 
 § 395. Dissolution of Irrigation Districts.— Although the 
 legislature has recently passed an Act providing for the mode 
 of procedure for the abandonment of operations by irrigating 
 districts and for their disorganization,^ it is held that the 
 Courts have no power by judicial decree to di-ssolve a public 
 corporation of this kind, as formed under the Act of 1877, be- 
 cause of non-user. And action cannot be maintained to dis- 
 solve such a corporation, since in the absence of law specially 
 conferring it Courts are without power to dissolve a public 
 corporation on such grounds. In the very recent case of the 
 people vs. Selma Irrigation District,^ the Court said upon this 
 subject : " The law under which the defendant was created 
 makes no provision for a judicial sentence dissolving a cor- 
 poration formed thereunder because of misuse of its Iranchise 
 or for a failure to accomplish the purpose of its organization, 
 
 1 Stat. 1887, p. 37, Sees. 18 etserj. -igS Cal. 206; 32 Pac. Rep. 1047, 
 
 2 See Stat. 1893, p. 520; Ante 1048. 
 Section 388.
 
 §396] IRRIGATION IN CALIFORNIA. TiSTi 
 
 nor has our attention been called to any statute authorizing 
 such a decree; and as. in the absence of a law specially con- 
 ferring it, the Courts are without power to dissolve a public 
 corporation for a misuser or non-user of corporate power this 
 action cannot be maintained."
 
 CHAPTER XIII. 
 Nevada. 
 
 I. SUBJECT TREATED IN GEN- 
 
 ERAI^. 
 Section.— 
 
 397. Particular features of State. 
 39S. Irrigation in the State. 
 
 II. GENERAL STATUTORY ENACT- 
 MENTS. 
 
 399. Legislative Act of March 3, 
 
 1866. 
 
 400. Rights of way. — Condemna- 
 
 tion proceedings. — Ditches 
 already constructed. 
 
 401. Act of March 9, 1889. — Recla- 
 
 mation districts. 
 
 402. Same. — Board of Reclamation 
 
 Commissioners. — State di- 
 vided into districts. — Duty 
 of Surveyor General. 
 
 403. Same. — Duties and powers of 
 
 the Board. 
 
 Section — 
 
 404. Same. -Rent of water. -Bonds 
 
 to be issued. 
 
 405. An Act regulating the use of 
 
 water for irrigation and 
 other purposes. 
 
 406. Jurisdiction of District Court. 
 
 Statement to be filed with 
 County Recorder. 
 
 407. Waters of State to be de- 
 
 clared public property. 
 
 408. Judicial proceedings to deter- 
 
 mine priority of rights. 
 
 409. Storage reservoirs. — Preven- 
 
 tion of waste. 
 
 III. IRRIGATION DISTRICT LAWS. 
 
 410. District Law of 1891. 
 
 411. Condemnation of water rights 
 
 not permitted. 
 
 412. Common law in State. -Ripar- 
 
 ian rights. 
 
 I. Subject Treated in (xeneral. 
 
 § 31)7. Particular Features of State.— The State of Nevada 
 lies almost wholly within the " Great Basin" region, which 
 also extends on the east beyond Nevada, and includes nearly 
 one-half of the Territory of Utah, as well as small portions 
 of Idaho and Wyoming. The Great Basin, as the name im- 
 plies, comprises a vast area, characterized by the fact that 
 within its rim are no streams contributing water to the ocean.
 
 §397,398] NKVAi.A. 587 
 
 All of the precipitation falliiiij within the irregular lines 
 bounding it must at some time lib evaporated atid again 
 returned to the atmosphere. However, the drop of rain 
 which has fallen within the Basin may join other drops, be- 
 coming a rivulet and later form part of a creek or large river, 
 and then carried into -some large lake; from this lake it can 
 escape to join the ocean only by taking the form of aqueous 
 vapor and floating away with the wind. An alnu)St innumer- 
 able array of smaller mountain ranges, trending north and 
 south, fill the Great Basin, and diversify its surface by their 
 bare and rugged peaks. Streams issue from some of these, 
 but after a short course down the mountain side and through 
 the long and narrow valley empty into saline lakes, or sink 
 in the broader valleys between the ranges. Over hundreds, 
 or even thousands, of square miles of lower mountains and 
 desert plains there may not be a drop of water found during 
 the greater part of the year. And on some of these vast 
 plains for years the rain does not fall. 
 
 Owing to the large area of the State of Nevada and its 
 small and scattered water supply derived largely from springs, 
 the ranches or farms are at considerable distance from each 
 other, except on the western border. Wherever a spring ap- 
 pears in the broad barren valleys of the State some ranchman 
 has bought or has taken up a small tract of land, sufficient 
 to cover the source of the water, and owning this he can 
 practically control thousands, or hundreds of thousands, of 
 acres of grazing lands. The three rivers, the Trnckee. Car- 
 son and Walker, together with the Humbolt, which flows 
 from the center of the Basin towards the western edge, com- 
 prise practically the water supply of the State. There are 
 other small streams and many springs, but none of them ol 
 great importance. The development of the agricultural re- 
 sources of the State, therefore, depends up<m the careful con- 
 ser^'ation and storage of the waters of these rivers ahA their 
 utilization to the greatest possible .vt. nt 
 
 § 89S. IrritjaUoii in Uu' Slato.-li i^ evident from an in- 
 spection of the statistics of the rainfall that there is no such 
 thing as farming without irrigation in Nevada. The only
 
 588 NEVADA. [§ 398 
 
 exception to this rule is perhaps in the case of small areas on 
 low grounds near perennial streams, the seepage from which 
 is sufficient to moisten, the sub-soil, and thus crops are pro- 
 duced without the artificial application of water. The distri- 
 bution of rain throughout the year is of no practical assist- 
 ance to the needs of agriculture, since the greater part of it 
 falls through the winter months. Taking the monthly aver- 
 ages of thirteen stations in Nevada for a period of at least 
 eighteen years, as published by the Signal Service, it appears 
 that the average annual rainfall for these localities was a little 
 over 6. i inches. The distribution of this rain by months is best 
 shown by the following percentages: Taking all of these thir- 
 teen stations during January 15.8 per cent, of the total amount 
 for the year fell; during February, 13.0 per cent.; March, 10.2; 
 April, 9.6; May, 9.0; June, 5.8; July, 2.5; August, 1.8; Sep- 
 tember, 2.5; October, 6.8; November, 9.0; December, 14.0. 
 So taking the months from November to March inclusive 
 62.0 per cent, of the total rainfall for the year fell, that is to 
 say, 3.78 inches fell. In the seven months from April to 
 October the average precipitation for the eighteen years was 
 only 2.32 inches. 
 
 Owing to the multiplicity of small ditches deriving water 
 from the same stream there constantly arises in the State of 
 Nevada conflicts between irrigators as to the distribution of 
 water, especially during the season while the supply is scanty. 
 Disputes of this character are settled sometimes by private 
 agreements, but more often by recourse to the Courts. The 
 expense of law suits for the maintenance of water rights is a 
 heavy burden to the farmer, and there is widespread com- 
 plaint of the insecurity of property. As the land is absolutely 
 worthless without water the whole value of it depends upon 
 an unimpeachable claim to sufficient water to irrigate it. If 
 this claim is liable to be constantly called in question the value 
 of the property must fluctuate correspondingly, and as the 
 practice of irrigation increases and there is greater demand 
 for water this is more likely to occur. Why this insecurity has 
 been allowed to exist, and why the water resources of the 
 rivers of Nevada have been allowed to go to waste are ques- 
 tions which naturally occur to every observer. There are
 
 §398-400] NEVADA. :,h9 
 
 reservoir sites throughout tlic State in abuiulaiice. plenty of 
 flood water to fill them, and vast tracts of fertile lands ncoding 
 water. Why are not these waters stored, thus makin«; jHis- 
 sihle the development of large additional tracts ? The an 
 swer to these questions seems to lie in the fact that irrigation 
 has grown up in that State without any order or system, and 
 that each man or group of irrigators takes all the water to be 
 had and cares little for the needs of others. The chief inter 
 est of the State has been in mines, and until very recentlv 
 little attention has been given to the development of agricul- 
 ture so that wasteful systems of water distribution have 
 grown up and fastened themselves upon the community, and 
 the people are slow to adopt new laws for radical improve- 
 ments. 
 
 II. (ieiieral Stsitutor.v Enact iiicnts. 
 
 §31)1). Legislative Act of March :{. 1S(H;. o:i March 3. 
 1866, an Act was approved entitled, " An Act to allow any 
 person or persons to divert the watei of any river or stream. 
 and run the same through any ditch or flume, and to provide 
 for the right of way through the lands of others." ' 
 
 Section i provides that any person or persons ilesiring t«i 
 construct and maintain a ditch or flume within any one or 
 more of the counties of that State shall make, sign and 
 acknowledge, before some officer entitled to take acknowledg- 
 ment of deeds, a certificate specifying, first, the name h\ 
 which the ditch or flume shall be known, ami second, the 
 names of the places which shall constitute the termini of the 
 ditch or flume. The certificate must also be accompanied 
 with a plat of the proposed ditch. The work of eonstructing 
 such ditch or flume shall be commenced within thirty days of 
 the time of making the certificate above mentioned and shall 
 be continued with all reasonable dispatch until (-(iinpleted. 
 
 5? -too. Rights of Way. ( oiKhMiiniitioii I'rorrciliiigs.— 
 Ditches Already Coiistrncted. — Sec 2 i)rovi<les that where 
 lands cannot be obtained by the consent f)f tin- nw lur thereof 
 
 1 Stat. ih66, p. 202; r.iii. Stil. iS;\s. |>. mh.
 
 590 ' NEVADA. [§400,401 
 
 so much ot the same as may be necessary for the construction 
 of the ditch may be appropriated for the same after making 
 compensation therefor. The section then provides that each 
 party shall select one appraiser, and the two so selected shall 
 select a third. In case the owner of the land shall fail for 
 the period of five days to select an appraiser then it shall be 
 the duty of the appraiser selected by the person proposing to 
 construct the ditch to select a second, and the two so selected 
 shall select a third. And it then provides that the appraisers 
 selected shall meet and appraise the land sought to be appro- 
 priated; and if the ditch owner shall tender to the owner of 
 the land the appraised value he is entitled to proceed with the 
 construction of the ditch or flume over the lands so ap- 
 praised, notwithstanding such tender may be refused. The 
 section then provides that an appeal may be taken to the 
 District Court at any time within ten days after such appraise- 
 ment.^ 
 
 ' ' Sec. 3. Nothing in this Act contained shall be so construed 
 as to interfere with any prior existing claim or right." 
 
 Sec. 4 provides that the Act was to apply to ditches and 
 flumes already constructed in case of enlargement or exten- 
 sion of the same.^ 
 
 HOI. Act of March 9, 1889.— Ilecliiiniition j)istricts.— 
 
 There were no general provisions ol any importance from the 
 time of the enactment above mentioned until the Act which 
 was approved March 9, 1889, entitled " An Act to provide 
 for the storage of water to encourage milling, mining and 
 
 i As amended bj' Act approved Court held that the Act of March 
 
 March 5, 1869; Stat. 1869, p. 169; 5, 1869, as amending the Act of 
 
 Gen. Stat. 1885, p. 108, Sec. 2. 1866, applies only to cases where 
 
 2 As to general construction of persons are desirous of construct- 
 
 the statute see Vansickle vs. ing a ditch or flume through or 
 
 Haints, 7 Nev. 249; Dalton vs. over the lands of another, and to 
 
 Bowker, 8 Nev. 190; Hosier vs. provide for such right of entry 
 
 Caldwell, 7 Nev. 363; Lake vs. upon such lands for the purpose 
 
 Tolles, 8 Nev. 285; Brown vs. of surveying such ditch or flume, 
 
 Ashlej', i6 Nev. 311; Strait et al and to declare how such lands 
 
 vs. Brown et al, 16 Nev. 317. might be condemned where the 
 
 In the case of Barnes vs. Sa- same could not be obtained by the 
 
 bron, 10 Nev. 217, the Supreme consent of the owner.
 
 §401,402] NEVADA. 51)1 
 
 internal improvements, and to reclaim the arable desert lands 
 and develop the agricultural resources of the State of Nevada, 
 and to provide funds for the payment of the same." ' 
 
 The objects of this Act are described in the preamble of 
 the same, which is as follows: " lV/irr<ras, The State of Ne- 
 vada has received from the general Government a grant of 
 2,000,000 acres of land, in lieu of the sixteenth and thirty- 
 sixth sections previously granted to the State of Nevada, the 
 proceeds from the sale of which are to be placed to the credit 
 of the school fund of this State; And -whereas. Under the Act 
 of Congress approved Sep. 4, 1841, and aii Act approved 
 March 21, 1864, a grant of 500,000 acres of land was made to 
 the State of Nevada for internal improvements; And -whereas. 
 The selection of said lands are not confined to any particular 
 section of- unappropriated land; And -whereas, The greater 
 portion of unappropriated lands in the State of Nevada is 
 known to be desert, waste and actually valueless, and without 
 sale unless water for the purpose of irrigation can be brought 
 upon them and the land properly and systematically irrigated, 
 crops of all kinds cannot be successfully raised; And -whereas. 
 The permanent settlement, growth, wealth and independence 
 of the State and people, as well as the sale of school hinds, 
 depend upon the reclamation of these desert lands; now, 
 therefore," etc. 
 
 .H02. Siimc— Hoiinl ol" KiMlaiiiation ( oimnis^ioniTs.— 
 State Divided Into Districts.— Diit.v of Surv.'.yor (it'iioral.— 
 
 Section i provides that a Board of Reclamation C )mmissioners 
 was thereby created, to consist of four members to be known 
 as the " Board of Reclamation and Internal Improvement," 
 for the storage of water and reclamation of arable desert land 
 in the State. The section also named the commissioners who 
 were to hold the position for the term of two and four years 
 or until the election of their successors. The section divided 
 
 1 See Stat. 1889, p. 102. va.la. t<. provi.le for the slon.KC 
 
 See Act of March 6, l8Hy, Mai. ami dislribulioii of water, aii.l the 
 
 1889, p. 63, entitled " An Act to issuance of boiuU for tin- payment 
 
 authorize the Boanl of Connnis- of tlu- same." 
 
 .sioners of Churchill County, Nc-
 
 592 NEVADA. [g 402, 403 
 
 the State into seven " Internal Improvement and Reclamation 
 Districts," and provided for the election of the Commissioners. 
 
 Sec. 2 provides that the Board shall procure information 
 and statistics in regard to all public lands within the State 
 and the waters running therein, and the possibilities of re- 
 claiming the land by conducting the unappropriated waters 
 thereon, and report the result to each session of the legislature. 
 
 Sec. 3 provides that the Board should ascertain the most 
 practical methods of utilizing the waters, either for milling, 
 mining, manufacturing or agricultural purposes. 
 
 Sec. 4 provides that it is the duty of the Surveyor Gen- 
 eral to furnish the Board maps, profiles and estimates, to de- 
 termine the cheapest and most economical and valuable routes 
 for canals, reservoirs and other improvements for irrigation 
 and other purposes. 
 
 §403. Same. — Duties uiid Powers of the Board.— Sec- 
 tion 5 provides that the Board shall have the power to divide 
 the State into districts and appoint a Superintendent for each 
 district, whose duty it shall be to superintend the building, 
 construction and maintenance of the canal, dams and other 
 works within his district. 
 
 Sec. 6 provides that the work of building and constructing 
 any and all works shall be done by contract, and the contract 
 to be let to the lowest responsible bidder. 
 
 Sec. 7. The Baard of CDmraissioners are authorized to em- 
 ploy a competent civil engineer, whose duty shall be to ascer- 
 tain the number of ditches in each reclamation district and 
 the capacity of the same. 
 
 Sec. 1 1 provides that whenever ten or more persons inter- 
 ested in irrigation ditches in auj' district petition for the 
 issuance of bonds for reclamation purposes the Board shall at 
 the next general election submit the question to the voters of 
 said district, and if carried the Board shall issue and di-spose 
 of the bonds, under such rules and regulations as they may 
 adopt, and the proceeds shall be placed to the reclamation 
 fund of the district. 
 
 The Act also provides for the advertisement for bids upon 
 the work to be done, the awarding of contracts, how payments
 
 §403,-404] NEVADA. 
 
 yn 
 
 shall be made upon the same, to fix a day for the completion 
 of the works, aud for the settlement for the same. 
 
 The Act also provided that the Hoard was authorized to 
 construct a canal, ditch or other works at, from or upon the 
 most desirable or practical point upon any river or water way 
 in the State for the purpose of milliuij or irrigating the arable 
 lands in the accessible vicinity of such .selected river or water 
 way. The total cost of said canal, ditch or works should not 
 exceed the sum of $100,000. 
 
 The Act also provided that it was unlawful lor any member 
 of the Board to be interested directly or indirectly in any 
 contract for the construction of any of the works. 
 
 §404. Same.— Rent of Water.— Hoiids (o he Issueil.— 
 
 " Sec. 20. The annual rent of water within the scope of any 
 canal, ditch or work created and built by the Board of Recla- 
 mation shall be one dollar per acre per year, said rental of 
 water shall be held as a lien against said lands " 
 
 Sec. 21 provides that the annual rent of water shall be col- 
 lected in the same manner and by the same officers as taxes; 
 and it also provided that all lands sold by the State under the 
 provisions of the Act .shall be supplied with the necessary 
 water for reclamation, whenever in the jud<;ment of the Board 
 it is practicable to do so. 
 
 " Sec. 23. The money herein appropriated shall be taken 
 from the State school fund and placed to the credit of the 
 reclamation fund herein created, and in its place shall be 
 deposited one hundred bonds of one thousand dollars each, 
 bearing interest at the rate of four per cent, per annum. 
 Said bonds shall run for twenty years, but sliall be redeem- 
 able by the State at its pleasure after two years." It also 
 provided the specific form for the bonds, lu^w they shouM be 
 executed, and when the interest should be paid. 
 
 " Sec. 24. There shall be levied and collected for the fiscal 
 year commencing January i, A. D., 1.S91, and annually there- 
 after, an ad valorem tax of two cents on each one hundied 
 dollars of all the taxable projjcrly in the State, aud all sunjs 
 derived from this tax shall go into the reclamation interest
 
 594 NEVADA. [§404-406 
 
 and sinking fund for the payment of the interest and redemp- 
 tion of bonds herein authorized by this Act." 
 
 §405. An Act Regulating the Use of VV^ater for Irri- 
 gation and Other Purposes. — On the 9th of March, 1889, 
 there was another Act approved, entitled " An Act to regu- 
 late the use of water for irrigation and other purposes; for 
 settling the priority of rights thereto, and to punish the unlaw- 
 ful interference with such rights; to provide for the condem- 
 nation of land for reservoirs; for recording claims to water 
 rights; and the appointment and duties of Water Commis- 
 sioners." ^ 
 
 The Act provides that the lands now irrigated in the State, 
 or which may hereafter be irrigated, were thereby divided 
 into seven " Irrigation Districts." Also that the Governor 
 was to appoint one Water Commissioner for each district. It 
 was made the duty of the Water Commissioners to divide the 
 water in the natural lakes or streams in their districts among 
 the several ditches, taking water from the same according to 
 the prior rights of each respectively. 
 
 It also provides that every person who shall wilfully open, 
 close or interfere with any head-gate or vvater-box without 
 authority shall be guilty of a misdemeanor, and on conviction 
 thereof shall be fined in any sum not exceeding $500 or im- 
 prisonment in the county jail for a period not exceeding six 
 months, or both such fine and imprisonment. Power was 
 given the Water Commissioners to arrest an}' person or per- 
 sons so ofiending. 
 
 Sec. 7 provides that said Commissioners shall not begin 
 their work until they have been called by three or more ow- 
 ners or managers controlling ditches in their several districts 
 by application in writing, stating that there was a necessity 
 for their action. 
 
 § 406. Jurisdiction of District Court. — Statement to he 
 Filed with County Recorder. — The Act provides that in all 
 questions of law and questions of right growing out of or in 
 any way involved or connected therewith, jurisdiction was 
 
 iSiat. 1SS9, p. 107.
 
 §406,407] NEVADA. ni)5 
 
 thereby vested in the several District Courts of the State. It 
 also provides, in order that all parties might be protected in 
 their natural right to the use of waters, that every person, 
 association or corporation owning or claiming any interest in 
 any ditch, canal or reservoir shall file with the County Re- 
 corder of their count}' a statement of their claim under oath. 
 setting forth all the particular facts relative to their claim. 
 
 The Act also provides that thereafterwards any person or 
 compan}' constructing or extending any ditch and intending 
 to use and appropriate any water from any natural stream 
 shall file with tiie County Recorder of that county before 
 the commencement of the construction of the work a state- 
 ment containing all the facts concerning the works and the 
 water to be appropriated; and from the time of filing any such 
 statement water suflScient to fill such ditch or ditches shall be 
 deemed and judged appropriated; ''provided, that nothing 
 herein contained shall be permitted to interfere with a prior 
 right to said water or to any part thereof; nnd provided f'lirther, 
 that such person or persons or corporations shall within sixty 
 days next ensuing the filing of such statement begin the ac- 
 tual construction of such ditch or ditches, and shall prosecute 
 the work of the construction thereof diligently and con- 
 tinuously to its completion; and provided further, that tlie be- 
 ginning of all necessary survey of such ditch or ditches shall 
 be construed as the beginning of said work of construction." 
 
 § 407. Waters of Stale Declared to l>e Pnhlic Properly.— 
 
 "Sec. 13. The water of every natural stream not heretofore 
 appropriated within this State is hereby declared to be the 
 property of the public, and the same is dedicated to the use of 
 the people, subject to appropriation as herein i)r(n'ided. The 
 provisions of this Act shall apply to all cases where the water 
 of natural streams or lakes is appropriated for beneficial i)ur- 
 poses, whether the water be conducted through ditches, canals, 
 flumes or tunnels, and shall apply also to cases where for irri- 
 gation purposes the water is stored in reservoirs, and the 
 owner or owners of any ditch, canal, flume or tniuiel through 
 which the water is conducted for irrigation purposes, and also 
 the owners of reservoirs may conduct the water therefrom into
 
 596 NEVADA. [§407-409 
 
 and along any of the natural streams of the State, but not so 
 as to raise the waters thereof above high water mark, and may 
 take the same out again at anj^ point desired; but due allow- 
 ance shall be made for evaporation and seepage, the amount 
 to be determined by the water commissioners of the proper 
 district; subject to review and determination by the Court 
 having jurisdiction over priorities in such distrtct." 
 
 § 408. Judicial Proceedings to Determine Priority of 
 Rights. — The Act also provides that whenever any appro- 
 priator shall desire a determination of the priorities of right 
 to the use of waters from the source from which several ap- 
 propriators draw the same they shall present to the District 
 Court a petition for an adjudication of priority of rights be- 
 tween several ditches in that district. And it is the duty of 
 the Court to hear all the evidence that may be offered by or 
 on behalf of any person, association or corporation interested 
 in such watercourse, and adjudicate and determine the mat- 
 ters put in evidence and enter a decree in accordance with the 
 findings of fact. And the parties interested may receive from 
 the clerk a certificate under the seal of the Court showing the 
 date and amount of appropriations adjudged in favor of any 
 ditch, as determined by said Court with reference to priority 
 to which the same may be entitled. And the holder of the 
 certificate shall exhibit the same to the water commissioner 
 of his district, which shall be the warrant of authority to him 
 for regulating the flow of the water in relation to such ditch 
 or canal. Provisions are also made that any person feeling 
 aggrieved may appeal from the District Court to the Supreme 
 Court of the State, and specific rules are laid down for the 
 procedure upon such appeal. 
 
 § 409. Storage Reservoirs. — Prevention of Waste.— " Sec. 
 25. Persons desiring to construct and maintain reservoirs for 
 the purpose of storing water shall have the right to take from 
 any of the natural streams of the State and store away any 
 unappropriated water not needed for immediate use for 
 domestic, irrigation or other beneficial purposes; to construct 
 and maintain ditches, canals, flumes and tunnels in the same
 
 §409-411] NEVADA. 597 
 
 manner provided by law for the condemnation of lands for 
 right of way for ditches." 
 
 Sec. 2g. Provides that the commissioners shall so divide, 
 regulate and control the use of water of all streams in such 
 manner, as nearly as may be, as will prevent unnecessary waste 
 of water; and that to that end he shall so shut and fasten the 
 head-gate or gates of all ditches that no more water may 
 flow into the ditch than is actually required and will be used 
 for the purpose for which such water was appropriated. 
 
 III. Irriijation District Luw. 
 
 §410. District Lmv of 1S91.— On March 23, 1891, there 
 was approved: " An Act to provide for the organization and 
 government of irrigation and water storage districts and to 
 provide for the acquisition of water and other property and 
 for the distribution of water thereby for irrigation purposes. "> 
 This Act is to a great extent copied from the California Dis- 
 trict Law of 1887 as originally passed and including the 
 amendments thereto of 1889.- 
 
 Sec. 12 of the Act provides for the condemnation of lands 
 or rights of way for canals and reservoirs, but it contains the 
 following proviso relative to the acquisition of water-rights by 
 condemnation proceedings: " Provided, that nothing con- 
 tained in this section shall authorize any interference with or 
 condemnation of any canal or water-right the right to which 
 has vested prior to the organization of any district under the 
 provisions of this Act." 
 
 § 411. I'ondcMinatioii of >Vatcr-Uii.'hts Not rcrmitted.— 
 
 The proviso contained in section 12, quoted above, in many 
 cases renders powerless any effort of those attempting to 
 organize an irrigation district under the provisions of the Act 
 to successfully accomplish the objects for which it is to be 
 organized. The Census Bulletin upon irrigation in Nevada 
 
 IStat. iSgi.p. 106. 294; California SUI. 1SS9. p. 18; 
 
 2 See Ante Chapter XII, Sections 5 Deerin^. 295; Cahfornia Mat. 
 
 as8 et seq; California Stat. iSSj.p. 18S9, p. 21; 5 DccrinK. 297: Cali- 
 
 29; 5 DeerinK P- 287, California for.iia Stat. 1.SS9. p. 212; 5 Dccr- 
 
 Stat. 1889, p. 15; 5 DecrinK, p- in^'. 2w-
 
 598 NEVADA. [§411,412 
 
 issued February 15, 1892, says on page 12: "On nearly 
 every stream more water is claimed than is available." This 
 was also true at the time the Act under discussion was enacted, 
 on March 23, 1891. This proviso has also caused much dis- 
 satisfaction among the people of the State, and in many cases 
 has prevented the satisfactor}^ organization of irrigation dis- 
 tricts. Under the law as it now stands all vested water-rights 
 must be purchased with the consent of the owner thereof and 
 at his price. A great stumbling block in the way of progress 
 and the workings of the law is this proviso, from the fact that 
 nearly all the waters available for irrigation within the State 
 are claimed by individual appropriation. 
 
 § 412. Coniinoii Law in State Riparian Rights. — Up to 
 
 very recently it was held in Nevada that the comm )n law of 
 riparian rights, as understood by the Courts of England and 
 those of the Eastern States, were applicable in that State. 
 But a decision of the Supreme Court of that State in 1889, ^^- 
 cided : That the term ' ' Common Eaw of Englfxnd ' ' was em- 
 ployed in the statute adopting it in the sense it is generally 
 understood in this countr5% and the intention of the legislature 
 of that State was to adopt only so much of it as was applicable 
 to the condition of the State and the needs and conditions of 
 the people; and it was further held that the common law 
 doctrine of riparian rights was unsuited to the condition of 
 that State. 1 
 
 1 Reno Smelting M. & R. Works Adams, 19 Nev. 78; 6 Pac. Rep. 
 vs. Stevenson, 20 Nev. 269; 21 242. 
 Pac. Rep. 317; see also Jones vs.
 
 chapti-:r xi\-. 
 
 Washiuirtoi). 
 
 I. SUBJECT TREATED IN | Section. 
 
 GENEKAL. i 4I9- Same. — roualtics. 
 
 Section.— I ,^ , , 
 
 .^ r> i- 1 r .^ r .^. . 420. bame.— LoiKlfinnatioii. 
 
 413. Particular features of btate. | 
 
 414- Irrigation in State. ' 421. vSatne.— Ditch companies 
 
 deemed public carriers. — 
 ri. GENERAi. STATUTORY ENACT- Proceedings for adjudica- 
 
 tion of water rights. 
 
 III. IRRIGATION DISTRICT I,A\V. 
 422. Act of March 20, 1S90. 
 
 MENTS. 
 
 415. Right to appropriate water 
 
 for manifold purposes. 
 
 416. Same. — Water how appropri- 
 
 r^lQ^\ 423. Same. — Constitutionality of 
 
 417. Riglit to appropriate water irrigation district law. 
 
 for irrigation. 424- Unit of measurement of 
 
 41S. Same.— General rights pro- water. — Riparian proprie- 
 
 vided by the Act. l"""^- 
 
 I. SiibjiHtt Treated in (General. 
 
 § 4:13. Particular S-Yatures of State.— The vStatc of Wash- 
 ington is similar to Oregon in climate and topography. The 
 Cascade range, which trends in a direction nearly north and 
 south at a distance of about one hundred and filly miles from 
 the ocean, forms the most conspicuous feature of surface re- 
 lief. This range divides the State into two great parts, differ- 
 ing greatly in climate and agricultural capabilities. On the 
 western side of the range the annual precipitation is heavy 
 and a dense forest covers the mountains and smaller hills, 
 while east of the mountains the rainfall is much less, and 
 vegetation is comparatively scanty and almost entirely depend- 
 ant upon irrigatifiU. The great jjlains of the Columbia lorm a 
 most striking feature of arid lands. These extend from llie 
 foot hills of the Cascade range eastward to the mountains of 
 Idaho, and from the mountainous or brokm n-ion bilow the
 
 600 WASHINGTON. [§413-415 
 
 border of British Columbia southward across the State. The 
 water supply of these plains is exceedingly small, but in the 
 Columbia River itself there is an amount sufficient for all the 
 needs of irrigation, but unfortunately the river is hundreds 
 of feet below the level of these arable lands, and its w^aters 
 can be taken out only upon a very narrow strip of sandy 
 bottom. The State of Washington affords an interesting 
 field for -the student of irrigation possibilities, and presents 
 sonae results that have attracted considerable attention. Of 
 all the States where irrigation projects are being carried for- 
 ward Washington has one of the greatest available water sup- 
 plies in proportion to the extent of arid land. But this sup- 
 ply is so situated that it requires great enterprises and a large 
 amount of capital to develop it. 
 
 § 414. Irrigation in State. — Fortunately for the State of 
 Washington some crops can be raised without irrigation 
 nearly every year over a great part of these plains. But 
 wherever there is an available water supply the farmers have 
 begun to make use of it for irrigation as an adjunct to the 
 rainfall for watering such plants as are injured by the long 
 summer droughts. It is gradually being recognized that the 
 greatest prosperity can come only by a thorough development 
 of the waters of the State. And, as is usually the casein the 
 earliest attempts of irrigation, at present the diversion is ac- 
 complished by small ditches in which a few farmers have 
 joined together to bring the water from the streams along the 
 lower levels and the river bottoms. From what we have said 
 it is very apparent that the relation of irrigation to agricul- 
 ture is determined largely by convenience and the question 
 of expense. And in most counties throughout the State irri- 
 gation is still in the experimental state, being used to tide 
 over an occasional drought. 
 
 II. (General Statutory Enactments. 
 
 § 415. Right to Appropriate Water for Manifold Par- 
 poses. — On March 9, 1891, the State Legislature passed an Act 
 which has been embodied in the compiled statutes of that 
 
 State. 1 
 
 1 See Hill's Annotated Statutes, Sections 1709-1717.
 
 §415—417] \VAsiii.\(jT<'N. r»(il 
 
 Section 1709 provides tluu : 'The rijjht to the ase of 
 water in any lake, pond or flowin^j stream in this State, or 
 the right to the use of any water flowing in any river, stream 
 or ravine of this State for irrigation, mining or manuficturing 
 purposes, or for supplying cities, towns or villages with water, 
 or for water works, may be acquired by appropriation, and 
 as between appropriations the first in time is the first in right." 
 
 § 41G. Sime. — Water how Appniprialeil. The Act pro- 
 vides that a notice must be posted in a conspicuous place at 
 the point of intended storage or diversion; it also sets forth 
 specifically what the notice must contain, and that it must 
 within ten days after it is posted be filed for record in the 
 office of the County Auditor of the county in which it is 
 posted. The appropriator must commence the construction 
 of the works within three months after the notice is posted if 
 it is intended to store the water. If the use is by diversion 
 he must within six months after the notice is posted comjuencc 
 the construction of the works by which it is intended to divert 
 the water; and it is expressly provided "That such works 
 must be diligently and continuously prosecuted to completion 
 unless temporarily interrupted by the elements." It also 
 provides that by a strict compliance with the above rules the 
 appropriator's rights to the use of tiie waters actually stored 
 or diverted relates back to the time the notice was posted; but 
 a failure to comply with the rules deprives him of the use ot 
 the water as against a subsequent appropriator of the water 
 who faithfully complies with the same. 
 
 The right to the use of water acquired by appropriation 
 may be transferred like other property by deed, and it also 
 provides that the purpose for which water is appropriated ma> 
 be changed. 
 
 i?417. Ri^'ht 1<) Appropriale Water lor lrrii;ation. 
 On March 4, iSgo, there was approved an Act entitled, " An 
 Act providing for the use of water for the purpose of irriga- 
 tion, and providing for the condemnation of the right of way 
 for ditches and to carry water for such purposes." ' 
 
 1 See Hill's Annotated Statutes. rSgi. Sections 1718-1783; St«l. 1889. 
 1890, p. 706.
 
 602 WASHINGTON. [§ 417-418 
 
 " Sec. 1718. Any person is entitled to take from any of the 
 natural streams or lakes in this State water for the purposes 
 of irrigation not heretofore appropriated or subject to rights 
 existing at the time of the adoption of the Constitution of 
 this State, subject to the conditions and regulations imposed 
 b}^ \^\\\ provided, that the use of water at all times shall be 
 deemed a public use and subject to condemnation as may 
 from time to time be provide^ for by the lyegislature of this 
 State."! 
 
 § 418. Same.— (General Riglits Provided by the Act.— 
 
 The Act provides that riparian proprietors shall be entitled 
 to use unappropriated waters. Provisions are made for con- 
 demnation for right of way of ditches and for apportioning 
 the water when the volume in any natural stream shall not 
 be sufficient to suppl}' the continued wants of the entire 
 country through which it passes. Power is given to the 
 judge of the Superior Court of the county to appoint three 
 commissioners, whose duty it shall be to apportion in a just 
 and equitable manner a certain amount of the water upon 
 certain alternate days, as they may think best for the interest 
 of all parties concerned, with due regard to the legal rights of 
 all. The basis of their apportionment is determined upon the 
 volume of water usually flowing in the natural streams; and, 
 in the event of any of the streams being unusually low, the 
 rights of all persons to water out of the said streams are deter- 
 mined in accordance with the reduction of the water in said 
 stream or lake. 
 
 Sec. 1731 provides that all persons on the margin, brink, 
 neighborhood or precinct of any natural stream shall have the 
 
 1 As to the authority given ap- propriated the water of a stream 
 
 propriators to rights in water flowing across the public lands by 
 
 prior to the passage of this Act erecting on his own lands a ditch, 
 
 see Thorp vs. Tenem, i Wash. St- oneacquiring title from the United 
 
 Rep. 566, 570; 20 Pac. Rep. 5SS; States takes subject to such ap- 
 
 Ellis vs. Pomero}' Improvement propriation, and he cannot by ob- 
 
 Co., I Wash. St. 589; 21 Pac. Rep. structions on his own land divert 
 
 27; Geddis vs. Parish, i Wash. vSt. the water from the ditch of the" 
 
 589; 21 Pac. Rep. 314, where it prior appropriator. 
 was held that where one has ap-
 
 §418-420] WAsiiiNuToN. «■.(>:{ 
 
 right to place upon the bank i)t" such stream a wheel, steam 
 pump or other machine for the purpose of raising water to the 
 level required for the use of such water in irrij;atingany land. 
 It provides for condemnation of right of way over land be- 
 tween the point where he takes the water out from the stream 
 and where he desires to use it. 
 
 Sec. 1735 provides that any person entitled to water from 
 any artesian well shall also have the right to condemn a right 
 of way from the well to the place of intended use. 
 
 §419. Same.— Penalties.— Sec. 1739 provides that during 
 the irrigating season it shall not be lawful for any person to 
 run any greater quantity of water through his ditch than is 
 absolutely necessary for irrigating his land. And any person 
 who shall wilfully violate the provisions of this section shall 
 be deemed to be guilty of a misdemeanor, and upon convic- 
 tion thereof shall be fined in an amount not less than ;r;ioo 
 nor more than Si, 000. 
 
 Sec. 1746 provides that any person who shall wilfully open, 
 close, change or interfere with any head-gate. water-l)ox. 
 ditch or dam without authority shall be deemed guilty of a 
 misdemeanor, and upon conviction thereof shall be fined not 
 less than $50 nor more than $500, or imprisoned not less than 
 thirty days nor more than six months, or may be punished by 
 both fine and imprisonment at the discretion of the Court. 
 
 §420. Same.— Comlemnalion.— Sees. 1751 t) 1754 inclu- 
 sive provide specific rules for condemning rights of way for 
 ditches, the appointment of appraisers, their duties, with a 
 proviso that all parties interested shall have a right of api.eal 
 to the Superior Court. 
 
 Sec. 1 76 1 provides that "Any person, association or corpo- 
 rati6n desiring to condemn the riparian rights of persons in 
 any natural stream or lake in this State may do so as follows: 
 Such persons, firm or corporation shall file his. their or its 
 petition in the Superior Court of the county wluMc-in said 
 stream or lake or any part thereof is situated fr<.m wliuh such 
 person, association or corporation desires t(. take the water 
 setting forth the uses that the said person, associalion or cor.
 
 604 WASHi^TGToN. [§420,421 
 
 poration intends to make of said water, the amount of water 
 desired to be taken and the extent of time that said water is 
 intended to be used." 
 
 Specific rules are then laid down for the procedure in con- 
 demnation cases. 
 
 Sec. 1774 provides: "The right of way herein given to 
 condemn the use of water shall not extend any further than 
 the riparian rights of persons to the natural flow of water 
 through their lands upon or abutting said streams or lakes, 
 as the same exists at common law, and is not intended in any 
 manner to allow water to be taken from any person that is used 
 by said person himself for irrigation, or that is needed for that 
 purpose by any such person." 
 
 § 421. Same. — Ditch Compiiiiies Deemed Public Carriers. 
 — Proceedings for Adjudication of Water llights. — Sec. 
 1773 provides that any corporation, person, association or firm 
 owning or controlling a ditch shall be deemed to be a public 
 carrier, and shall at all times be subject to the regulations 
 prescribed by the Legislature from time to time. 
 
 Sees. 1777 to 1782 provide specific rules that whenever any 
 one or more persons, associations or corporations interested 
 as owners of any ditch or canal in any water district shall 
 present to the Superior Court of any county a motion, petition 
 or application in writing, moving or praying said Court to the 
 adjudication of the priorities of rights to the use of waters 
 for irrigation between the several ditches or canals in such 
 district, the Court shall without unnecessary dela}^ proceed 
 in open court and appoint a day for the hearing and for taking 
 the evidence in sUch adjudication; and the Court shall deter- 
 mine the matter put in evidence and cause a decree to be en- 
 tered determining and establishing the several priorities of 
 right by appropriation of water of the several ditches or cstnals 
 in such water districts concerning which testimony shall have 
 been offered. The Act then provides for specific rules for the 
 procedure for such adjudication, the certificate that must be 
 issued to the parties interested and the recording of the same, 
 and the ditches and appropriation to be numbered in the de- 
 cree in the order of the priority'.
 
 § 422, 423 J w A s 1 1 1 N ( i t. . .\ . (iOa 
 
 111. Irriu;ati<ni Distriil La\\. 
 
 !^422. Actof.Harch ',»!>, lSJ>!).-On March 20, 1S90. there 
 was approved: " An Act providing for the organization and 
 government of irrigation districts and sale of lands arising 
 therefrom and declaring an emergency." In general the Act 
 is nearly identical with the California District Law of 1887, 
 including the amendatory and supplementary Acts of 1S89, 
 with of course the necessary changes ])eing snltstitnted.' 
 
 § 423. Slime.— CoJistitutioualit.v ul" llu' lirii;ati«»u Dis- 
 trict Law. — The constitutionality of this district law has 
 been tested in the Courts of Washington in the case of Hoard 
 of Directors of Middle Kittitas Irrigation District vs. Peter- 
 son.^ This was an action in which the Hoard of Directors 
 made an application to the Superior Court for a confirmation 
 of the proceedings of the district for the issuance of bonds. 
 The defendant appeared and answered the petition, the plain- 
 tiff demurred to the answer and the demurrer was overruled, 
 and from the judgment thereof an appeal was taken by the 
 board to the Supreme Court. The judgment of the Court be- 
 low was reversed, with instructions to the Court below to 
 enter a decree approving and confirming the issuance of said 
 bonds. Mr. Justice Hoyt, in rendering the judgment of the 
 Supreme Court in the case, said upon the constitutionality of 
 the Act: " It is conceded that the scope of said Act is such 
 that if it is held that the districts created are such municii)al 
 corporations,'^ said Act must be held to be unconstitutional 
 and void. When any question involving the constitutionality 
 of an Act of the legislature lA presented to a Court for adjudi- 
 cation it calls for the utmost care and consideration of such 
 Court in determining the same, and, if this is true in an ord- 
 
 ISee Hiir.s amiotated Slat. Cal. Slat. i.SSy. jj. 212, 5 Di-i-riii).;. 
 
 Sees. 1784-1829, Stat. 1890, p. 713; 299. 
 
 also see Ante Chapter XII, Sees. 24 WasliiiiKloii 1.J7. .jyl'ai-. Ri-p. 
 
 358-388; California Stat. 887, p. 29; 995. 
 
 5 Deering, p. 287; Cal. Stat. 1889; -'.As ijrcsiribcd wilhin thcnii-aii- 
 
 p. 15; 5 Deering, p. 294; Cal. Stat. inj^ of Sec. 6 of Art. S of Wash- 
 
 18S9, p. 18; 5 Deering, 295; Cal. in^toii. 
 Stat. 1889, p. 21; 5 Deering. 297;
 
 606 WASHINGTON. [§423 
 
 inary case, it is much more so in the one at bar, which pre- 
 sents a question of public policy of the gravest nature — one, 
 in fact, upon which depends to a great extent the prosperity 
 of a very considerable portion of the inhabitants of the State. 
 If the Act in question cannot be sustained by reason of such 
 constitutional provision it is conceded that no Act which 
 would be effective for the purpose can be enacted by the leg- 
 islature until a change is made in the constitution. * * * 
 When Courts assume to pass upon an Act of a legislature and 
 determine whether or not it is constitutional the}^ do not do 
 so for the purpose of setting up their judgment as against that 
 of the legislature. * * * It follows, from these considera- 
 tions, that Courts will never hold a law to be void unless in 
 their opinion it clearly violates some express provision of the 
 constitution. * -i= * With this rule for guidance then we 
 must enter upon the investigation of the question before us. 
 And, in view of such rule, it will be seen that it is not for us 
 to decide whether or not such districts might not reasonably 
 be held to be municipal corporations within the meaning con- 
 tended for, but on the contrary it is our duty to see if there is 
 any reasonable classification of such districts which will place 
 them outside of the inhibition of such section of the constitu- 
 tion. That they are not 'municipal corporations' within the 
 strict and better use ot said term is conceded by respondent, 
 and is. indeed, clear from the authorities; but it is claimed 
 that said section six of article eight has b}^ its language 
 made counties and school districts as well as cities and towns 
 'municipal corporations,' within the meaning of said section, 
 and for that reason the words ' other municipal corporations ' 
 used therein must be held to have a more extended meaning 
 than that usually attaching thereto. This argument seems to 
 us conclusive, and from it we are forced to the conclusion that 
 every public corporation formed by the State for the purpose 
 of carrying out an}^ of the duties which the State owes to any 
 locality, and which by its terms are made alike applicable to 
 all the inhabitants of the district or locality affected thereby, 
 must be held to be included within the ' other municipal cor- 
 porations ' named in this section. * * * It is practically 
 conceded b}- the respondent that these districts constitute pub-
 
 §423,424] WASHINGTON. r,(»7 
 
 lie corporations and not municipal ones. if. untk-r our consti- 
 tution, the words ' public' and 'municipal,' as thus applied, 
 have not been made substantially synonymous. Such words are 
 no doubt used at times as expressing substantially tlic same 
 idea, but it is conceded that in the usual and ordinary sense 
 the word ' public ' is a broader word than the word ' muni- 
 cipal,' and includes not only municipal corporations but others 
 of a public character which are not in the ordinary sense 
 'municipal.' * * * Th^ constitution clearly recogiii/.es 
 the importance of improvements of the kind sought to be 
 furthered by this legislation, and yet to inteq^ret the section 
 under consideration as contended for by the respondent would 
 take from the legislature the power to deal with the subject 
 in any eflfective manner. The improvement contemplated in 
 the creation of the districts is a local one in the interest of 
 property benefited, and has nothing whatever to do with the 
 taxing power; and it is possible that this legislation could be 
 sustained upon the grounds that the bonds proposed to be 
 issued were not a ' debt ' within the meaning of the constitu- 
 tional provisions relating thereto, but were simply evidences 
 of the fact that a special assessment for the improvement of 
 property benefited had been made, and the payment thereof 
 provided for in installments, as stated in said bonds. This 
 would, perhaps, be a strained construction of the legislation; 
 but, rather than to hold the same unconstitutional, it mis^lit 
 be our duty to thus construe it. We are, however, better 
 satisfied to hold that these districts, although undoubtedly 
 ' corporations ' in a certain sense, and perhaps ' public cor- 
 porations,' are not ' municipal corporations' within the mean- 
 ing of said section of the constitution. Such seems to us the 
 reasonable construction of such constitutional jirovision as 
 applied to the Act under consideration, and we should prob- 
 ably sustain the legislation without bringing to its aid the 
 rule of construction above stated." 
 
 §4'24. Unit of MeasurtMiH'iil ol' >Va(n-Kipaiian rropri.-- 
 tors.— On the 26th day of March, iHyo. was approved an Act 
 establishing the unit of measurement of water, which is as 
 follows: " The unit of measure for water for irrigation, niin-
 
 608 WASHINGTON. [^ 424 
 
 ing, milling and mechanical purposes in this State shall be a 
 cubic foot of water per second of time/" 
 
 Washington is one of the States of the arid region that 
 recognizes the rights of riparian proprietors to the natural 
 flow of the water through their lands adjoining the streams or 
 lakes as the same exists at common law. However, right is 
 given to ditch companies to condemn any such riparian rights 
 in and to the water for public uses.- 
 
 •iStat. 1890, p. 9S5; Hill's An. ^ See Hill's auuotated Stat. Sec. 
 
 St. Sec. 1862. 1774, Ante Sec. 420.
 
 CHAPTER XV 
 KaiiS4is. 
 
 I. SUBJECT TREATED IN GEN- 
 ERAL. 
 Section. — 
 
 425. Particular features of State. 
 
 426. Irrigation in the State. 
 
 II. CtENERAL STATUTORY ENACT- 
 MENTS. 
 
 427. An Act concerning irrigation. 
 
 428. Condemnation proceedings. 
 
 hi. an act regulating the ap- 
 propriation and use of 
 water; prohibiting un- 
 lawful USE thereof; 
 
 PROVIDING FOR THE CREA- 
 TION OF IRRIGATION DIS- 
 TRICTS. 
 
 429. Diversion and appropriation 
 
 of water for industrial uses. 
 
 Same. — I^imits and purpose 
 of the law. 
 
 Same. — Subterranean waters. 
 
 Same.— .abandonment.— Con- 
 demnation. 
 433. The right of the useof watt-r. 
 
 430- 
 
 431- 
 432. 
 
 Section.— 
 
 434. Right of way an»l hile for 
 1 works for appropriation and 
 
 ! devoting waters to benefi- 
 
 cial uses. 
 j 435. The construction, mainten- 
 ance and operation of work^ 
 for appropriating and de- 
 voting waters to beneficial 
 uses. 
 I 436. Same. — Artesian wells. 
 I 437. Same. — Co n s t r u c t i o n of 
 works. — Distrib ii t i •> 11 t> f 
 waters. 
 j 43S. Water rates. 
 ' 439. The creation of irrigation 
 districts having certain 
 powers. 
 440. Same. — Bonds. — Purchase of 
 rights. — Constru c t i o n of 
 I works. 
 
 I 441. Interference with works or 
 I water, and ])eiiaUies there- 
 
 I for. 
 
 442. Common law of rij>arian 
 ' rights in State. 
 
 I. Suhjecl Tn'atjMl in (iriicnil. 
 
 §+25. Particular Fcaiun's ol" Slate. Twenty years a^o 
 one-half of the State of Kansas was considered aKricnltnral. 
 the other one-half pastoral; and snccessful a^ricuUnral enter- 
 prises were not expected beyond the one hnndredtli meridian. 
 But in spite of that idea the settler >fradually moved westward.
 
 610 KANSAS. [§ 425, 426 
 
 He had been told that a year of drought and starvation would 
 come; still he pushed on, breaking and subduing the soil and 
 showing by his improvements that he had come to stay; and in 
 spite of his many disappointments he is there yet. The east- 
 ern half of Kansas is within the rain belt and the portion west 
 of the looth meridian is within what is known as the semi- 
 humid region. 
 
 The States of Nebraska and Kansas have so great a similarity 
 in physical conditions and topographical features that they 
 are very frequently discussed together. Their conditions are 
 well known. Like most localities they have their virtues and 
 their failings. These States have a rich and deep soil and an 
 abundance of sunshine. In their eastern half they have suffi- 
 cient natural moisture to raise fair crops. But in the western 
 half natural rainfall is only sufficient to lure the hopeful 
 settler to take up his abode there and to struggle against 
 nature in that unequal contest of dry farming in a semi-humid 
 region. The only crop that has grown surely and abundantly 
 year in and year out in these two States, west of the 99th 
 meridian, is the crop of despair. And of this crop there has 
 been a distressing overproduction in the last few years. Irri- 
 gation is indispensable to the success of agriculture in the 
 western half of Nebraska and Kansas. It is being generally 
 adopted throughout this portion of the States and would 
 greatly enhance the general prosperity if adopted in the east- 
 ern half. Kansas and Nebraska are agricultural States. But 
 the farmer is not the only person who should favor the 
 adoption of irrigation there. It is equally important to 
 merchants, bankers and owners of town property. They have 
 all suffered keenly from failure of crops and they will all be 
 benefited when crops are made sure. A universal practice 
 of the art of irrigation will supply the only element now want- 
 ing to make these two States hold their own against any of 
 the States of the Union. 
 
 § 426. Irrigation in the "State. — Amongst the great 
 sources of water supply in western Kansas is the under- 
 flow or sheet water, which is that vast underground store 
 from which the ordinary wells of the region obtain their
 
 §426,427] KANSAS. r.u 
 
 supply. There are also the natural waters ul the Republican, 
 Smoky Hill, Soloman, Arkansas and Cimarron rivers and a 
 number of smaller streams, besides what is called tlw stored 
 storm waters, which are those waters that are saved by means 
 of enormous catch basins throughout the plains which save 
 the rainfall. These waters can be utilized with very slight 
 cost and an entire immunity from risks of dangerous floods. 
 To utilize the surface waters does not exhaust the supply of 
 those of natural streams to any great extent. These surface 
 waters sink into the sands and course tlieir way towards the 
 sea, generally below the river beds. 
 
 The people of Kansas, finally seeing the great benefits to be 
 derived from the practice of irrigation, have, through their 
 State legislature, adopted for that part of Kansas which lies 
 west of the 99th meridian a very elaborate and even drastic 
 code of control over natural waters, culminating in provisions 
 allowing the formation of irrigation districts, which last pro- 
 visions in a more or less modified form have followed the lines 
 laid down by the State of California in this respect. We will 
 now proceed to discuss the laws of the State upon this subject. 
 
 II. General Statutory Eiiactinents. 
 
 §427. An Act (Joiiceruinj; irrigation.— In iSS6 the legis- 
 lature of Kan=as passed an Act concerning irrigation of which 
 the following is the substance:^ 
 
 Sec. 3516 of said Act is as follows: " The right to the use 
 of running water flowing in a river or stream in this State for 
 the purposes of irrigation may be acquired by appropriation. 
 As between appropriators the one first in time is first in 
 right." 
 
 The following sections provide that the place of diversion 
 may be changed if others are not injured by such change; that 
 a notice of appropriation must be filed and posted in a con- 
 spicuous place at the point of diversion; that within sixty days 
 after the notice is posted the claimants must commence the 
 construction of the works and must prosecute the saim- dil- 
 igently and uninterruptedly until completicjn, unless intcr- 
 
 1 See Gen. Stat. 1S89, Sees. 25t4-3523; Stal. iSSf,. Cli. 115.
 
 612 KANSAS. [§427,428 
 
 rupted by stress of weather; and by " completion " is meant 
 conducting the water to the place of its intended use; also 
 that wlfenever any compan}'^ shall have constructed a canal it 
 is permitted a right of way for that purpose over the unoccu- 
 pied lands of another, for which damages may be awarded, 
 but which damages shall not exceed the value of the land oc- 
 cupied at the date of the construction of the canal. 
 
 §428. Condemuatiou Proceedings. — On March 27, 1889, 
 there took effect: "An Act to enable irrigating ditch and 
 canal companies to condemn the right to take water for irri- 
 gating purposes from any stream in the State of Kansas."^ 
 
 Sec. 3524. Provides: " Anj^ and all irrigating ditch and 
 canal companies which have been heretofore organized or in- 
 corporated, or which may hereafter become organized and in- 
 corporated for the purpose of procuring or furnishing water 
 for the purpose of irrigation, which shall desire to condemn 
 the right to take such water from any stream in the State of 
 Kansas, shall have the right to procure such condemnation 
 for such purpose in the following manner. " 
 
 The Act further provides that a petition must be presented 
 to the judge of the District Court of the county, signed by the 
 company or by its authority, stating the number of miles of 
 ditch built or to be built, and a specific description of the 
 dimensions of the same and describing the stream and the 
 place where the ditch company proposes to take water from 
 such stream and asking the appointment of commissioners to 
 condemn such right. And the judge shall then appoint three 
 disinterested freeholders of such county to make such con- 
 demnation. The commissioners must meet after having given 
 notice, at the time and place specified in said notice, and hear 
 all claims for damages presented to them in writing by any 
 person or persons for the condemnation of the right to take 
 the water; and shall allow and award such damages as shall 
 seem just, reasonable and fair, as compensation to the persons 
 presenting such claims; and after having heard all claims 
 shall make a report to the clerk of the District Court, stating 
 
 iGen. Stat. 1S89, Sec. 3524-3533; Stat. i8Sg, Ch. 165.
 
 §428-430] KANSAS. 613 
 
 the facts of their investigation. The right of appeal is granted 
 from the decision of the commissioners to the District Court. 
 The party making application shall, within sixty days from 
 the filing of such report, file with the county treasurer of the 
 county a certified copy of such report, and shall pay the 
 amount of damages awarded by the commissioners in said re- 
 port, except in cases where an appeal has been taken, 
 
 Sec. 3533 provides that in all cases where the amount of 
 damages awarded has been paid the right of the company to 
 take the amount of water condemned for such purposes shall 
 become absolute, and all persons shall be forever barred from 
 claiming damages or any right to interfere with the taking of 
 such waters except only such as may have appealed; and such 
 persons shall only have the right to contest the amount of 
 damages. 
 
 III. An Act Regulatiiii? tlie Appropriation and Use of 
 Water; Prohibitini;- Unlawfnl Use Thereof; Providing 
 for tlie Creation of Irrigation Districts. 
 
 § 429. Diversion and Appropriation of Water for Indus- 
 trial Uses.— On March lo, 1891, there was approved "An 
 Act providing for and regulating the diversion, appropria- 
 tion, storage and distribution of waters for industrial pur- 
 poses within prescribed limits and of the construction, main- 
 tenance and operation of works therefor; prohibiting unlawful 
 use thereof, or interference therewith; providing for the 
 creation of iri-igation districts having certain powers; fixing 
 penalties for and assigning" jurisdiction of offences hereunder; 
 defining the powers and duties of certain public officers, 
 and for other purposes." The following is an abstract of 
 the law, with quotations of only such portions as seem neces- 
 sary.^ 
 
 § 4:^0. Same.— Limits and Purpose of the Law.— Article 
 I, Section i, provides: " In all that portion of the State of 
 Kansas situated west of the ninety-ninth meridian all natural 
 waters, whether standing or running, and whetlicr surface or 
 subterranean, shall be devoted, first, to purposes of irrigation 
 
 1 See Stat. iSgi, pp. 223-260.
 
 614 KANSAS. [§430-432 
 
 in aid of agriculture, subject to ordinary domestic uses, and 
 secondly, to other industrial purposes, and maj'' be diverted 
 from natural beds, basins or channels for such purposes and 
 nsQs; provided, that no such diversion shall interfere with, 
 diminish or divest any prior vested right of appropriation for 
 the same or a higher purpose than that for which such diver- 
 sion is sought to be made without a due legal condemnation of, 
 and compensation for the same; and natural lakes and ponds 
 of surface water having no outlet shall be deemed parcel of 
 the land whereon the same may be situate, and only the pro- 
 prietor of such lands shall be entitled to draw off or appro- 
 priate the same." 
 
 Sec. 2 provides that the appropriation of water shall be 
 deemed to be accomplished and effectual only as to so much 
 water as shall have been actually applied to beneficial uses 
 within a reasonable time after the commencement of the work 
 by means of which such appropriation is intended to be made.^ 
 
 § 431. Siiiue. — Subterranean Waters. — Sec. 5 provides: 
 " Waters flowing in any well-defined subterranean channels 
 and courses, or flowing or standing in subterranean sheets or 
 lakes, shall be subject to appropriation with the same eflect 
 as water of superficial channels, and no person shall be al- 
 lowed by drains, ditches, fountains, subterranean galleries or 
 other works to collect and divert percolating waters manifestly 
 supplying such subterranean supplies to the prejudice of any 
 prior appropriator thereof. 
 
 " Sec. 6. No person shall be permitted to take or appro- 
 priate the waters of any subterranean supply which naturally 
 discharge into any superficial stream to the prejudice of any 
 prior appropriator of the water of such superficial channel." 
 
 § 432. Same. — Abandonment. — Condemnation. — Article 
 VIII. also provides that any prior right of appropriation shall 
 exist and continue only by the exercise thereof in a lawful 
 manner, and any failure of an appropriator continuously to 
 apply such water to lawful and beneficial purposes, without 
 due and sufficient cause shown for such failure, shall be 
 deemed an abandonment and surrender of such right. 
 
 1 See Stat. 1891, p. 224.
 
 §432-434] KANSAS. 615 
 
 " Sec. 9. Every vested right of prior appropriation or di- 
 version of water for industrial uses shall be subject as to the 
 right of eminent domain, and may be condemned and com- 
 pensated for for public and beneficial uses in the same manner 
 and under the same circumstances as govern the condemna- 
 tion of other private property." 
 
 §433. The Right of the Use of Water.— x\rt id e II., 
 containing six sections, provides that any person having by 
 lease, purchase or agreement, written or oral, procured from 
 any carrier water for the irrigation of lands or other uses, and 
 having actually applied such water to beneficial uses, shall 
 thereafter, upon payment of the reasonable rate prescribed by 
 the County Commissioners, be entitled to continue in the en- 
 joyment of vvater from the works of such carrier to the same 
 amount. It also provides that water may be taken for domestic 
 uses from any natural stream at any public road crossingorat 
 any place upon the lands of others where such lands are unen- 
 closed and uncultivated. 
 
 Any person entitled to the use of waters for irrigation or 
 for any other purpose whatsoever may collect and store up the 
 same for use presently thereafter, and any person transferring, 
 selling, leasing, assigning or bargaining with reference to the 
 transfer, sale, lease or assignment of water, or any right he 
 may have acquired to the use thereof, and any person receiv- 
 ing any money or any other valuable thing whatsoever in con- 
 sideration of the prorating or rotating of water shall be deemed 
 and taken to have abandoned all right to the use or enjoy- 
 ment of such water. 
 
 " Sec. 6. Every right of use of water under this Act shall 
 be subject to the right of eminent domain, and, as public in- 
 terest and economy may require, may be condemned and com- 
 pensated for as any other private right or property." 
 
 § 43i. Right of Way anil Site for Works for Appro- 
 priation and Devoting Waters to Henetirial Uses. — Article 
 3, containing five sections,^ provides that all necessary rights 
 of way and sites for any works for diverting, storing or con- 
 
 1 Stat. i8gi, p. 227.
 
 616 KANSAS. [^434,435 
 
 veying water to be applied to industrial uses shall be allowed 
 on, over and through any lands, and on, over, across and 
 under any ditch, canal, conduit, railroad, street or highway 
 by the nearest and most practical route and method, commen- 
 surate with the least damage to the property condemned; />/'^- 
 vided, that no owner of real estate shall be compelled to grant 
 a right-of-way over his property if there shall be already in 
 operation over said property irrigating works sufficient to 
 properly irrigate the same land intended to be irrigated by the 
 canal for which such condemnation is sought. It provides that 
 the procedure for condemnation shall be in the manner pre- 
 scribed by the laws regulating the right of eminent domain 
 which are or may hereafter be enforced. 
 
 Sec. 5 provides that should any of the works for diverting 
 or storing the waters cease for a period of two years to be in 
 operation the right-of-way or site shall cease, and it shall be 
 deemed to have been wholly abandoned, and all right, title 
 and interest in and to the lands theretofore so occupied and 
 used shall revert to and vest in the owners at the time of such 
 reversion of the several tracts and parcels of land of which 
 the lands embraced in such right of way or site formerly 
 constituted a part. 
 
 § 435. The Construction, Mjiinten;ince aud Operation of 
 Works for Appropriatins: and Devoting; Waters to Bene- 
 ficial Uses. — ^ Article IV., Section i, provides that the proprie- 
 tors of any canal or other works shall be liable for all 
 damages resulting from their wilful or negligent failure to 
 comply with any of the provisions of the Act or from any 
 negligence in construction, maintenance or operation of any 
 such works. 
 
 The article also provides that by the 15th of April in each 
 year such works are to be properly cleaned and repaired, and 
 between the 15th day of April and the ist day of October in 
 each year there must be kept therein a flow of water sufficient 
 to supply all those lawfully entitled to the use of the same ; 
 and in case of failure to supply such customers the proprietors 
 
 iStat. 1891, p. 230-242.
 
 § 435, 436J KANSAS. 017 
 
 shall be liable for all damages occasioned thereby. The 
 owners must also construct a head-gate, rating-flume, or 
 measuring device; also waste-gates, tail-races and outlets tor 
 supplying customers must be provided. 
 
 Sec. 8 provides that it is the duty of the superintendent of 
 each ditch to measure the water to those entitled thereto, and 
 in times of scarcity to apportion the water ratably and accord- 
 ing to the amount each one is entitled to. 
 
 Sec. 9 provides for the distribution of the water into the 
 various ditches or works according to priority. 
 
 § 436. Same. — Artesiau Wells.— Sec. lo provides that any 
 person sinking or boring for an artesian well shall cause to be 
 kept a record of the work, setting forth the name and address 
 of the proprietor of the well, the name of the contractor 
 therefor; the particular location thereof, the date of commence- 
 ment of work; the different strata passed through, and the 
 depth at which each thereof shall be reached, showing also 
 each flow of water obtained, and each vein of water or water- 
 bearing strata passed through; and at the completion of the 
 well he shall cause to be ascertained the flow thereof, if a 
 flowing well; and within thirty days after completion of the 
 well the proprietor thereof shall make and file in the oSice of 
 the Register of Deeds of the county a verified statement set- 
 ting forth all the matters aforesaid, the particular vein or flow 
 of water claimed to be appropriated by means of said well, 
 the total amount of water so claimed in cubic feet per second, 
 if such well be a flowing well (otherwise the distance from 
 the surface at which the water customarily stands), what part 
 or parts of such well is or are cased, and the interior diameter 
 or diameters of such casings. 
 
 Sees. 12-14 provide that the person owning any artesian well 
 may record such certificate in any county or counties in addi- 
 tion to the county where such well is situated; and such 
 record shall be notice to all parties boring or sinking any 
 artesian well in any such county of the priority of the appro- 
 priation of water claimed by the party recording such certi- 
 ficate, and the prior right of such appropriation may be en- 
 forced against any and all parties seeking to acquire any
 
 618 KANSAS. [§ 436, 437 
 
 subsequent right of appropriation of such waters. The Act 
 also provides that in such wells a proper and sufficient casing 
 must be placed to prevent caving in; and the well shall be so 
 cased as to prevent the escape of the water thereof, and such 
 appliances must be provided as will readily and effectually 
 prevent the flow of water from the well. No person con- 
 trolling such a well shall permit the waters thereof to flow to 
 waste, unless, and so far as reasonably necessary, to prevent 
 the obstruction thereof, or to flow or be taken therefrom save 
 for beneficial xisoiS; provided, this shall not be so construed as to 
 prevent the reasonable use of such water for the necessary 
 irrigation of trees standing along or upon any street, road or 
 highway, or for ornamental ponds or fountains, or for the 
 •propagation of fish. 
 
 § 437. Same.— Construction of Works.— Distribution of 
 Water. — Sees. 15 to 21 of the article contain specific rules for 
 the construction of all dams and embankments and other 
 works constructed for the purpose of holding, impounding, stor- 
 ing, collecting and conveying the water so that the same shall 
 be safe, adequate and suSicicnt for the service required thereof. 
 
 Sec. 22 provides that the several persons entitled to the use 
 of water of any works may in writing agree among themselves 
 that the water of such works shall be rotated, distributed and 
 delivered upon particular days or parts of days to particular 
 persons entitled thereto, and on other days to other persons, 
 as may be in such agreement specified; and any such agreement 
 may provide for such rotation during any one season or part 
 of season; and the expiration of the time therein mentioned 
 shall be the same as previous to the making of such agree- 
 ment. A copy of any agreement entered into by consumers 
 must be delivered to the superintendent of the ditch or other 
 works, who must cause the water to be distributed conform- 
 ably to the said agreement. If the agreement is not satis- 
 factory the proprietors of any canal or other works not a party 
 to the agreement, or any consumer of water from the canal, is 
 entitled to make application to the Judge of the District Court 
 asking that the agreement be annulled. The necessary pro- 
 ceedings to that end are then prescribed.
 
 §437-4391 KAN.'^AS. 019 
 
 " Sec. 28. No agreement for the rotation of water shall in 
 any manner impair or affect the rights of any prior incum- 
 brances of lands theretofore customarily irrigated by any 
 part of the waters mentioned in such agreement, he not being 
 a party to such agreement; nor shall such an agreement, or 
 rotation of waters pursuant thereto, in any manner affect or 
 impair the rights or the priority of right of the parties 
 thereto." 
 
 § 438. Water Rates.— Article VI., Sections i and 2, provide 
 that whenever the purchasers of water from any irrigation 
 company shall consider the rate of charges of such company 
 to be unreasonable, extortionate or unjust they may appeal to 
 the Board of Railroad Commissioners; and if that Board 
 shall consider the complaint just they shall proceed to notify 
 the company and the complainants that thirty days from the 
 date of such notice they will hear testimony in relation 
 thereto; and if, after hearing such testimony, they shall de- 
 cide that such rates are extortionate and unjust they shall fix 
 a rate of compensation for the use of the water, which rate 
 shall be binding upon the irrigation company for one vear 
 from the date of such decision, and until the further order of 
 said Board therein. 
 
 The Board of Railroad Commissioners shall have the same 
 powers in relation to irrigation companies that they have in 
 relation in railroad companies. 
 
 § 439. The Creation of Irrigation Districts Iiaviiij; Cer- 
 tain Powers.— Article VII., Sections i to 24 inclusive, provide 
 for a very concise and effective irrigation district law, which 
 is based upon,. but not copied after, the California law, as in 
 other cases mentioned. ' For this purpose the Board of County 
 Commissioners is authorized to form into convenient districts 
 such tracts of contiguous territory as may be conveniently 
 irrigated from any given source of supply. 
 
 Sec. 2 provides that upon petition of not less than three- 
 fifths of the resident land owners of such proposed district, 
 setting forth the utility and benefit of such proposed dis- 
 
 ' Stat. 1H91, p. 243.
 
 620 KANSAS. [§ 439, -440 
 
 trict, and asking that an election be held to vote upon the 
 proposition, accompanied by an outline map or plat showing 
 all the particulars, and also accompanied by an estimate of 
 the probable cost of constructing the works, the County Com- 
 missioners may order the County Surveyor to make the neces- 
 sary estimates. After the verification of the petition and the 
 statements therein contained it is the duty of the Commis- 
 sioners to order an election to be held within sixty days from 
 and after the date of such order. 
 
 Sees. 4-6 provide rules for conducting the election and that 
 if three-fifths majority of the qualified voters of such pro- 
 posed district have voted in favor of creating the same the 
 Board of Commissioners shall make an order creating such 
 
 district, and designate it " Irrigation District No. , of 
 
 County, Kansas." 
 
 Sec. 7 provides for the election of the officers of said dis- 
 trict called the Board of Irrigation Commissioners, and con- 
 sisting of a President, Secretar}- and Treasurer, to be elected 
 annuall}-. 
 
 §440. Same.— Bonds.— Purchase of Riglits.— Construc- 
 tion of Works. — Any district thus created is authorized to 
 issue the bonds of said district for the purpose of building or 
 purchasing any main, ditch, ditches and laterals and an)^ 
 other work necessary for the purpose of irrigating the lands 
 in such district, the total amount of said bonds not to exceed 
 $1 per acre for each acre of land irrigable from and by said 
 works so purchased or constructed or to be purchased or con- 
 structed; the bonds to be payable in not less than five years 
 or more than thirty years, and to bear interest at the rate of 
 six per cent, per annum; provision is then made for levying 
 a tax upon all real estate which shall be dependent for irriga- 
 tion upon the works so purchased or constructed within said 
 district as may be necessar}^ to raise sufficient funds to pay 
 the interest on such bonds and create a sinking fund to meet 
 the payment of such bonds at maturity thereof. 
 
 Sees. 10-14 provide specific rules for the election upon the 
 question of bonds. 
 
 Sec. 15 provides that whenever any irrigation district shall
 
 §440,441] KANSAS. tJ2l 
 
 have secured a fund for the purchase or constructiou of irri- 
 gation works the Irrigation Commissioners shall submit the 
 question of siich purchase to a vote of the qualified electors of 
 such irrigation district. 
 
 Sees. 1 6 and 17 provide for the construction of the neces- 
 sary works by contract by the lowest responsible bidder. 
 
 Sec. 18 provides that whenever such works shall have been 
 built or purchased by any district the same shall be under the 
 control of the Board of Irrigation Commissioners; and said 
 Board shall make all necessary rules and shall have power to 
 dispose of the water in said works to all persons in the dis- 
 trict, and shall charge therefor such rates as such Board may 
 fix from time to time, 
 
 ^ 441. Interference With Works or Water and Penalty 
 Therefor;. — Article VIII., Sections 1-25/ provide against 
 unlawful interference with, injury to or use of works appro- 
 priating and devoting water to beneficial purposes, or the 
 water thereof; and for penalties therefor and proceedings for 
 the punishment of offenses respecting the same. 
 
 Sees. 1-2 of said article provide that it shall not be lawful for 
 any owner of ditches or other works to demand or accept from 
 any person any money or other valuable thing or any promise 
 therefor as a royalty, bonus or premium, as a condition pre- 
 cedent to the right or privilege of applying or bargaining for 
 or procuring such water; but such water shall be sold upon 
 the payment or tender of the charges fixed by the County 
 Commissioners. And upon conviction of any such unlawful 
 charge for water the ditch owner shall be deemed guilty of a 
 misdemeanor and punished by a fine not less than $ioo nor 
 more than $5000 or imprisonment for a term of not less than 
 three months, or both such fine and imprisonment, at the dis- 
 cretion of the Court. The Act also provides for severe penal- 
 ties for the refusal to farnish water upon the proper demand 
 and tender of charges, where such water might be furnished; 
 also punishment for any Superintendent having charge of any 
 ditch who shall neglect or refuse to deliver water as in the 
 
 ' Stat. 1891, p. 250.
 
 622 KANSAS. [§ 441, 442 
 
 Act provided to any person entitled thereto; also penalties 
 upon conviction of any person for permitting water to run to 
 waste; for unlawfully raising head-gates, or in any manner 
 causing the water to run out of the ditch or works; also a severe 
 penalty for not complying with the law as set forth in a pre- 
 vious section relative to artesian wells, and other penalties are 
 provided for the failure to construct and control and manage 
 the works which are not necessary to recite here. 
 
 § H2. Common Law of Riparian Riglits in State. — Kansas 
 is also one of those States that recognize and protect the com- 
 mon law rights of riparian proprietors in and to the waters of 
 streams flowing over or adjoining their lands. The right to 
 the use of water of a non-navigable stream by the riparian 
 owner is held by the Supreme Court not to be an easement, 
 but a part of the land itself. It is connected with and in- 
 herent with the property in the land and passes by a convey- 
 ance of the land.^ 
 
 1 Shamleffer vs. Council Grove Peerless Mill Co., i8 Kau. 24.
 
 CHAPTER XVI. 
 Utah. 
 
 I. SUBJECT TREATED IN CxEN- 
 ERAL. 
 Section. — 
 
 443. Particular features of Terri- 
 
 tory. 
 
 444. Irrigation in territory. 
 
 II. GENERAL STATUTORY EN- 
 ACTMENTS. 
 
 445. Priority of water-rights. 
 
 446. Same.— Primary water-rights. 
 
 447. Same.— Secondary rights. 
 
 448. Same.— Measurement of 
 
 water.— Water-rights per- 
 sonal property. — Abandon- 
 ment. 
 
 449. Same.— Waste. — Preferences. 
 
 — Rights of way. 
 
 Section. — 
 
 450. Same.— Priority of rights 
 
 continued. 
 
 451. Same. — Authorities discussed 
 
 452. 
 
 Same. — Authorities con- 
 tinued. 
 
 III. IRRIGATION DISTRICT LAW. 
 
 453. Oiganizalion of irrigation 
 
 districts. 
 
 454. Officers of districts.— Duties 
 
 of trustees. — Duty of County 
 Court. 
 
 Power of trustees. — Lakes 
 and ponds. 
 
 Taxes. — Condemnation of 
 land for right of way. 
 457. Riparian rights in the terri- 
 tory. 
 
 455- 
 456- 
 
 I. Subject Treated in General. 
 
 § 443. Particular Features of Territory.— We must take 
 into consideration in this connection the fact that Utah in its 
 natural state was but little less than a desert. Its streams 
 capable of being utilized are in general small; and its valleys, 
 hemmed in as they are by lofty ranges of the Rocky Moun- 
 tains which draw the moisture from the clouds, are naturally 
 the most arid. The northern and western parts of the Terri- 
 tory lie within the great basin of the continent, from which 
 no water escapes except by evaporation; and the western and 
 southern parts of the Territory are in the drainage basin of 
 the Colorado river, everywhere distinguished by lofty 
 plateaus and deep canyons, with the river itself many hun-
 
 624 UTAH. [§443,444 
 
 dred feet below the surrounding countr)^ The Wasatch 
 Range of mountains runs in a general north and south direc- 
 tion through the center of the northern half of the Territory, 
 wringing from the clouds the moisture, thus preventing any 
 great precipitation in the valleys. But in the winter the 
 moisture in the shape of snow being stored up in the mountains 
 until needed renders the counties in the valleys very pros- 
 perous. The small streams issuing from this great range have 
 cut through the mountains and as a general rule pour their 
 waters toward the west, ultimately flowing into the Great 
 Salt Lake. This lake is but the remnant of a great body of 
 fresh water which occupied all the valleys of western Utah, 
 and from whence came the rich sediments which render the 
 broad bottom lands so fertile. The valleys situated at 
 the base of this range of mountains, although exceed- 
 ingly arid in climate, receive many streams which carry a 
 large part of the precipitation which has fallen upon the high- 
 est summits, and are thus most favorably situated for cheap 
 and effective irrigation. The valleys further to the west, how- 
 ever, though equally fertile, do not receive streams as large 
 or permanent, from the fact that the mountains bounding 
 them are of less altitude. 
 
 § 444. Irrigation isi Territory.— Utah occupies the central 
 position in the "arid region," and therefore the details of 
 irrigation therein possess more than ordinary interest, from the 
 fact that t'hey represent conditions intermediate between those 
 of the north and the south, the east and the west. Besides 
 this, the irrigation methods and systems have been developed 
 by men who. unaided by capital or previous experience, have 
 introduced methods of their own, and, taught by repeated 
 failures, have finally achieved success. The country being 
 arid in the highest degree the value of the land is dependent 
 wholly upon the amount of water to which it is entitled; the 
 most fertile areas being almost valueless without water. Utah 
 offers a striking contrast to the rest of the arid region in the 
 details of the customs of distribution of waters according to 
 the priority of rights and also in the regulation and control 
 by the irrigator. With few exceptions the canals and systems
 
 § 444, 445] UTAH. 626 
 
 of ditches have been built b}- farmers and are controlled by 
 them in ever}- minute detail. 
 
 The point has long since been reached when all the easily 
 available water has been appropriated, and the increase of the 
 cultivated area has been due to a more careful utilization of 
 the supply. But in nearly ever}^ valley in Utah there is now 
 more land under cultivation than there is water to mature the 
 crops in all years. The principle was early established among 
 the farmers of that Territory' that those who first made use of 
 the water should ever afterwards be entitled to a sufficient 
 amount to irrigate the area of land originally cultivated by 
 them; and the later comer, whenever scarcity occurred, 
 should not take the water until those enjoying prior rights 
 had satisfied their needs, the latest comer being the first to be 
 deprived and those settling before him losing their water 
 supply in succession in the converse order of their acquisition 
 as it became less and less. 
 
 II. (General Statutory Euactments. 
 
 § 445. Priority of Water Rights. — February 20, 1880, an 
 Act was approved for recording vested rights for the use of 
 water and regulating their exercise which is worthy of note, 
 as it differs greatly from the statutory laws upon this subject 
 in other States and Territories of the arid region.^ 
 
 Sec. 2775 provides that the selectmen of the several coun- 
 ties of this Territor}' are hereby created ex-ofl&cio Water 
 Commissioners for their respective counties, whose powers 
 and duties are prescribed to be as follows: They are to make 
 and cause to be recorded such observations as they may deem 
 necessary of the quantity and flow of water in the natural 
 sources of supply; the average flow thereof at any season of 
 the year, and to hear and determine all claims to the use of 
 water, and on receipt of satisfactory proof of any right having 
 vested to issue to the person owning such right a certificate 
 therefor for recording; and to generally oversee the distribu- 
 tion of the water within their respective counties to all par- 
 ties having joint rights therein, and to any natural source or 
 
 1 vSee Compiled I.aws, 1888, Vol. II. Sees. 2775-2779.
 
 626 UTAH. [§445,446 
 
 supply; and in case of dispute between any such parties as to 
 the nature and extent of their rights to the use of water, or 
 right of way, or damages therefor, to hear and decide upon 
 all such disputed rights and to file a copy of their findings 
 and decisions as to such rights with the County Recorder, and 
 to distribute the water according to such decisions and find- 
 ings, unless otherwise ordered by a Court of competent juris- 
 diction. 
 
 Sec. 2777 provides: " The certificate of the Water Com- 
 missioners shall state generally the nature and extent of the 
 right to use water of the person or corporation to whom it is 
 issued, and must be filed with the County Recorder for' 
 recording." 
 
 Sec. 2779. " No person or corporation shall maintain any 
 suit at law or in equity for the determination of the existence 
 or extent of ally right or rights to the use of water in this 
 Territory until after the decision of the proper County Com- 
 missioners or of the proper Board of Reference, as the case 
 may be, unless said Commissioners or Board shall fail and 
 neglect to hear and decide such person's claim of right to use 
 of water for more than three months after such person may 
 have presented in writing his claim or claims and evidence 
 in support thereof for adjudication Provided, this section 
 shall not be construed to affect or impair the authority or 
 jurisdiction of any Court in the issuance of a temporary in- 
 junction or restraining order in such cases, or to abridge the 
 right of any person aggrieved by any such decision to main - 
 tain an}^ lawful suit or appeal after such decision may have 
 been made." 
 
 §446. Same. — Primary Water Rights. — Sec. 2780 pro- 
 vides: " A right to the use of water for any useful purpose, 
 such as for domestic purposes, irrigating lands, propelling 
 machinery, washing and sluicing ores, and other like pur- 
 poses, is hereby recognized and acknowledged to have vested 
 and accrued as a primary right to the extent of, and reason- 
 able necessity for, such use thereof under any of the follow- 
 ing circumstances: 
 
 " I. Whenever any person or persons shall have taken, di-
 
 § 446] UTAH. 627 
 
 verted and used any of the unappropriated water of any 
 natural stream, water-course, lake or spring or other natural 
 source of supply. 
 
 "2. Whenever any person or persons shall have had the 
 open, peaceable, uninterrupted and continuous use of the 
 water for an uninterrupted period of seven years." 
 
 In construing this section the Supreme Court of the Ter- 
 ritory, in the case of City of Springville vs. Fulmer,^ held: 
 That where a city, with consent of original appropriators, 
 took control of the waters of a certain creek and distributed 
 them to the inhabitants of a city the right to exercise such 
 control vested in the city, and it was authorized to maintain 
 a suit to enjoin an individual from diverting the waters to 
 his own use. 
 
 In the case of Holman vs. Pleasant Grove Citj^^the Su- 
 preme Court held: That where b}^ common consent a munici- 
 pality has for many years regulated the appropriation of the 
 waters of a certain river for irrigation purposes, by allowing 
 a pro rata distribution among the appropriators, in case of 
 deficiency it has no right to subsequently divide the appro- 
 priators into two classes, according as their use begun before 
 or after a certain arbitrary date, and to restrict only those of 
 the second class; but all must be served alike. And Mr. 
 Chief Justice Zane, in rendering the opinion, said upon this 
 subject: " When the right according to priorit}^ is abandoned 
 and the city takes control and assumes and exercises the 
 authority of distribution, with the consent of the holder of the 
 right, he must be held to subject himself to reasonable regu- 
 lations- to be adopted and enforced by the municipality. 
 Ordinances or by-laws of a city regulating and providing for 
 the distribution of water to its residents should be reason- 
 able. They should be equal. Pleasant Grove City had no 
 right, arbitrarily, to throw all the appropriators before 1865 
 into one cla.ss, and all appropriating after 1865 into another 
 class. Such discrimination was inequitable and unequal and 
 therefore void. To ascertain the precise day that water was 
 first used on each lot of ground or tract of land within the 
 
 I7 Utah, 450; 27 Pac. Re]). 577. -S Utah, 78; 30 Pac. Rep. ~2.
 
 628 UTAH. [§ 446-448 
 
 limits of a city would be impracticable, and to give all the 
 water in dry weather to the residents on the property first 
 irrigated and leave those on property irrigated later without 
 any water would be a great hardship to them. When the 
 people of a city surrender their control of its water supply, 
 and there is not enough to furnish all as much as they need, 
 the municipality should make a pro rata reduction in propor- 
 tion to the amount required by each. By acquiescing in the 
 distribution of water to them by the city the appropriators 
 must be regarded as subjecting their rights to such power to 
 regulate the use of them as the municipality possesses." 
 
 §447. Same. — Secondary Rights. — Sec. 2781. "A sec- 
 ondary right to the use of water for any of said purposes is 
 hereby recognized and acknowledged to have vested and 
 accrued (subject to the perfect and complete use of all primary 
 rights) to the extent of, and reasonable necessity for, such use 
 thereof under any of the following circumstances: 
 
 " I . Whenever the whole of the waters of any natural 
 stream, water-course, lake, spring or other natural source of 
 supply has been taken, diverted and used by prior appropri- 
 ators for a part or parts of the year only, and other persons 
 have subsequently appropriated any part or the whole of such 
 water during any other part of such year, such person shall 
 be deemed to have acquired a secondary right. 
 
 "2. Whenever at a time of unusual increase of water, ex- 
 ceeding seven years' average flow of such water at the same 
 season of each year, all the water of such average flow then 
 being used by such prior appropriators, other persons shall 
 appropriate and use such increase of water, such person shall 
 be deemed to have acquired a secondary right." ^ 
 
 § 448. Same.— Measiireiiieut of Water.— AVater-Rights 
 Personal Property. — Abandonment. — The Act also provides 
 for the measurement of water by cubic inches or relative 
 
 ' 1 Where by agreement defendant uncertainty. Smith vs. Phillips, 
 
 has an interest, but there is a con- 6 Utah, 376; City of Springfield vs. 
 
 flict as to its extent, a decree that Holley, 23 Pac. Rep. 933. See also 
 
 the defendant have the use of one Nephi Irrigation Co. vs. Jenkins, 8 
 
 good ditch is fatally defective for Utah, 369; 31 Pac. Rep. 986.
 
 § 448, 449] UTAH. 629 
 
 time; and that such water-rights may be appurtenant to the 
 land upon which water is used, or it may be personal property 
 at the option of the rightful owner of such right. 
 
 Sec. 2783 provides that a continuous neglect to keep in re- 
 pair any means of diverting or conveying water, or a con- 
 tinuous failure to use any right to water for a period of seven 
 years at any time after the passage of this Act, shall be held 
 to be an abandonment and forfeiture of such right; and that 
 such water-rights may be conveyed with the land or it may 
 be reserved by the terms of the conveyance.^ 
 
 Sec. 2784 provides: "All rights to the use of water and all 
 means of diverting water shall be exempt from taxation, ex- 
 cept for the purpose of regulating the exercise of the use of 
 such right, in all cases where the land or other property upon 
 which the water pertaining to such rights is assessable for 
 taxation, but in making the assessment the assessor shall esti- 
 mate the increased value of such land or other property 
 caused by the use of such water." ^ 
 
 § 441). Same.— Waste.— Preferences.— Rights of Way.— 
 
 The Act also provides that all persons using water must pro- 
 vide suitable ditches for conveying surplus water into the 
 natural channel to the satisfaction or approval of the Water 
 Commissioners, and that no water must be permitted to run 
 to waste. 
 
 Sec. 2787 provides that whenever the waters of any source 
 of supply are not sufficient for the service of all those having 
 primary rights to the use of the same such water shall be dis- 
 tributed to each owner of such right in proportion to its ex- 
 
 1 As to the construction of the protest which alleged that plain- 
 above section by the Supreme tiff was the owner and in posses- 
 Court see the case of Stalling vs. sion of a certain water system, 
 Ferriti, 7 Utah, 447; 27 Pac. Rep. "designed and used for the pur- 
 686. pose of conveying water from a 
 
 2 In the recent case or Bear Lake river to a certain city for the pur- 
 and River Water Works and Irri- pose of supplying the inhabitants 
 gation Co. vs. Ogden City (Utah), thereof for domestic use and irri- 
 33 Pac. Rep. 135, the Supreme gation purposes and charging 
 Court held that a complaint in an therefor," showed no exemption 
 action to recover taxes paid under under the above statute.
 
 630 UTAH. [§ 449, 450 
 
 tent, but those using the water for domestic purposes shall 
 have the preference over those claiming for any other pur- 
 poses; and those using the water for irrigation shall have the 
 preference over those using the same for any other purpose 
 except domestic purposes; provided, such preference shall not 
 be exercised to the injury of any vested right without just 
 compensation for such injury. 
 
 Sec. 2788, as amended, provides that right-of-way for irri- 
 gation ditches may be obtained by condemnation. Provision 
 is made for appraisement in case of disagreement; method of 
 selecting appraisers and their duties; that appeal may be 
 taken to the District Court from the award of the appraisers; 
 liability of ditch owners for damages, and how notice may 
 be given of intention to construct or enlarge canals or 
 ditches.^ 
 
 § 450. Same. — Priority ol* Rights Coiitiuuetl. — From the 
 above we can see that Utah offers a striking contrast in its 
 laws to the other States of the arid region. For con- 
 venience the rights are not held in the exact order of settle- 
 ment, but are divided into classes. All older settlers who use 
 water for a certain acreage before some arbitrarily fixed date 
 are considered as having prior rights; those who cultivated 
 other lands at a later time are considered as having secondary 
 rights to these, and those who cultivated lands during a still 
 later period have third rights, and so on. The farmers own- 
 ing first rights are entitled to the use of water originally ap- 
 propriated until their needs are satisfied, those owning the 
 second rights can enjoy the use of the surplus water after the 
 prior rights have been supplied, while those owning third 
 rights are by law only allowed to use such water as the farmers 
 having first or secondary rights cannot use or claim. A farmer 
 having prior rights may also have secondary rights, and even 
 third rights, to the water for lands not covered by his first 
 rights, and thus in times of scarcity he does not lose all the 
 water. The person, however, who has the last rights cannot 
 be sure of success in times of scarcity, and unless the snow 
 
 1 Stat. 1S92, p. 91, Sec. 2788-2788(1.
 
 §450-452] UTAH. 631 
 
 fall in the mountains is heavy during the winter he may not 
 dare to plant in the spring, knowing that he cannot secure 
 water later in the season. 
 
 § 451. Siiiue. — Authorities Discussed.— In the case of the 
 Lehi Irrigation Company vs. Moyle.^ the facts were that 
 thirty-two settlers in 1851 constructed a ditch and diverted 
 the waters of a certain stream for the purpose of irrigation. 
 Ivater, in 1873, they encouraged a number of new settlers to 
 take up lands in the vicinity, and permitted them to enlarge 
 the capacity of the ditch under the tacit understanding that 
 they could use the ditch in the appropriation of water suflB- 
 cient for the irrigation of their lands. And in an action 
 brought by the first parties seeking to enjoin the later comers 
 from the use of the water the Supreme Court of the Terri- 
 tory held: That the persons who built an irrigation ditch 
 upon the lands of the United States become the owners 
 thereof and of the right to use the water first appropriated 
 thereby so long as they use the same for irrigation purposes 
 and to the extent of such appropriation; but when such ditch 
 is enlarged by others, the original owners not objecting, and 
 its capacity increased, the parties so enlarging the ditch be- 
 come owners therein and in the water appropriated thereby 
 without any conveyance from the original owners. Thus 
 holding that the group of person.s who used the water prior to 
 1873 as having the primary right to the water and those sub- 
 sequent to that date as having the secondary right; but the 
 Court held that by their actions the first group were estopped 
 from setting up their primary rights to the water. 
 
 § 452. Same.— Authorities Contiuued.— Upon this sub- 
 ject of division of water rights the Supreme Court of Utah 
 has rendered several opinions. In the case of Stowell vs. 
 Johnson,''^ the facts were that the defendants and their grantor 
 had appropriated and diverted the waters of certain streams 
 for the purpose of irrigation during the season that it was 
 needed, uninterruptedly, from the year 1848 up to the first 
 day of November, 1882, when between that date and the 
 
 I4 Utah, 327; 9 Pac. Rep. 867. -7 Utah, 215; 26 I'ac. Rep. 290.
 
 632 UTAH. [§ 452 
 
 first day of April following the plaintiffs, by means of pipes, 
 diverted all the water of one stream and part of the water of 
 others for the purpose of supplying the inhabitants of Ogdeu 
 City; and between the two dates, to wit, from the first day 
 of November during each and every 3'ear since 1882 until 
 the first of April of the following j^ear up to the year 1888, 
 they had continued to divert and use all the water of 
 the several streams during those months that it was not 
 needed by the defendants for irrigation, as well as during the 
 irrigation season, the portion of the waters of the streams not 
 needed by the defendants for that purpose. The Supreme 
 Court of the Territory, by Blackburn, J., in the opinion said: 
 "It is not found that the defendants need on their lands water 
 for irrigation during the winter season, but the finding is that 
 the irrigating season is from April until November. Nor is 
 it found that the defendants need during the winter season 
 more water than one-half of the waters of Strong's Canyon 
 Creek and all of the waters of Canfield Creek below the Junc- 
 tion; on the contrary they seem to have got along with that 
 amount of water from 1882 until this suit was commenced." 
 Therefore the Court held that the defendant had a primary 
 right to the waters to the amount only that thej^ actually 
 needed during the irrigation period and the amount that they 
 actually needed for domestic purposes during the winter, and 
 that the plaintiff had a secondary right to all the rest of the 
 waters not so used both during the irrigation period and 
 during the winter. 
 
 Also in the case of Salina Creek Irrigation Co. vs. Salina 
 Stock Co.,^ which was an action brought claiming the waters 
 of a certain stream, where it appeared that the respondent 
 and its grantors had appropriated some of the waters, but 
 afterwards appellants appropriated and used a certain portion 
 of the waters of the stream, and afterwards respondent claimed 
 the whole of the stream. Held, that respondent would be 
 confined to the actual appropriation of itself and grantors 
 with whom it connected itself by the deeds of such grantors, 
 being actual appropriators. 
 
 I7 Utah, 456; 27 Pac. Rep. 578.
 
 §453,454] UTAH. 635 
 
 III. Irrigation District Law. 
 
 § 453. Or;^auization of Irrig;atioii Districts. — As Utah 
 was among the first to adopt the active practice, in the arid 
 West, of what is known as modern irrigation, it was also the 
 pioneer State or Territory in that region to enact what is 
 known as an Irrigation District Law. On January 20th, 
 1865, there was approved an act for the formation of irrigation 
 districts, which was so adapted to the needs and necessities 
 of the people of that Territory that it has existed almost 
 intact, with very few amendments, to the present time.^ 
 
 Section 2403 of this Act provides: That upon a majorit}' of 
 the citizens of anj- county, or anj^ part thereof, representing 
 to the County Court that more water is necessar}-, and that 
 there are streams unclaimed or unused which can be made of 
 value to the interests of agriculture, the County Court may 
 proceed to organize a count}^ or a part thereof, into an irri- 
 gation district; "and thereafter the land-holders of such 
 district shall be equally entitled to the use of the water in, or 
 to be brought into, such district, according to their acknowl- 
 edged rights; provided, such land-holders pay the proportion 
 of such expense incurred in the construction and keeping in 
 repair of the necessary canals, flumes, dams or ditches." 
 
 § 454. Officers of District — Duties of Trustees — Duty of 
 County Court. — Sec. 2404 provides that the citizens of an 
 Irrigation District, when so organized, may in mass meeting 
 proceed to the formation of a company, by electing viva voce 
 not less than three nor more than thirteen trustees and a 
 secretary and treasurer. 
 
 The duties of the trustees are prescribed to be to locate the 
 proposed canal or ditch, determine the amount and quality of 
 the land to be benefited thereby, to estimate the cost for the 
 construction of all works and to estimate the amount per acre 
 on taxable property which will be necessary to construct the 
 same. 
 
 It shall then be the duty of the trustees to make a report to 
 the County Court of their investigation, also to call a meeting 
 
 1 See Compiled Laws of Utah, 1888, Sections 2403-2427,
 
 634 UTAH. [^ 454, 455 
 
 of the holders of the lands to be benefited by the proposed 
 canal or ditch, at which a copy of said report shall be presented 
 and the said land holders shall vote "Yes" or "No" upon the 
 following questions: 
 
 1. Do you mutuall}' agree to pay per acre land tax, to 
 
 construct the proposed canal or ditch? 
 
 2. Do you approve the action of the mass meeting in the 
 election of the ofiicers? 
 
 Notice of said election must be duly given, and the Act 
 provides rules for the conduct of the same. And if upon 
 counting the votes it shall appear that two-thirds of the votes 
 polled shall have been answered in the affirmative then the 
 tax so agreed upon shall become a law in the said irrigation 
 district. If less than two-thirds of the votes polled are 
 answered in the affirmative then all proceedings under this 
 Act shall be null and of no effect. 
 
 Sec. 241 1 provides for the date of elections and notice of 
 the same; and also that: "The votes at said election shall be 
 by acreage and not per capita, The right to use the water 
 for one acre of land shall entitle the owner to one vote. The 
 tax voted by a majority vote at said election shall be a lien on 
 all water rights until paid, from the day of assessing the same, 
 but not upon the land."^ 
 
 §455. Power of Trustees — Lakes Jiml Ponds. — Sec. 2413 
 provides that the trustees shall have power to sue and be 
 sued, and to have and to hold all such real estate and personal 
 property- as will be necessary to construct the contemplated 
 ditch or canal. 
 
 Section 2416. ' 'Where lakes or ponds in natural basins have 
 outlets, or where such can be made by dams across hollows, 
 such lakes or ponds may be used as reservoirs to store water 
 for lands lying on lower levels, and the people of any irriga- 
 tion district may, under the provisions of this Act, construct 
 such artificial or use such natural basins for irrigation pur- 
 poses; provided the w^aters of such lakes or ponds are in no 
 case to be raised by dams or otherwise so as to interfere with 
 or damage settlers upon the margin thereof." 
 
 1 As amended by .-Vet approved March lo, 1892. .See vStat. 1892, p. 38.
 
 §456.457] UTAH. 635 
 
 § 456. Taxes.— Coudemimtioii of Land for Right of Way. 
 
 The Act provides that in order to keep all works of the dis- 
 trict in repair a tax may be levied upon the lands benefited, 
 the land-holders in the district to vote upon the same, in the 
 same manner as provided by the Act for elections upon 
 other questions. 
 
 Section 2418. "All property or money belonging to any 
 irrigation district, in the hands of the trustees to be ex- 
 pended by them under the provisions of this Act, is hereby 
 exempted from all city, county, and territorial taxes." 
 
 The Act also provides, That the trustees shall have power 
 to purchase lands for ditch or canal purposes, and proceedings 
 are prescribed in case the land-owners are absent, or cannot 
 agree with the trustees as to the price to be paid for the land, 
 that the land may be condemned for the purpose. Penalties 
 are prescribed for the injuring of property of the district and 
 what damages the district shall be liable for. 
 
 § 457. Riparian Rights in the Territory.— The Territory 
 of Utah, as can be seen from the abstract of its laws, has 
 developed a distinct policy of its own for the regulation and 
 control of the right to the water of streams and lakes within 
 its borders, which has practically shaped and moulded so 
 many of the affairs of the Territory. The common law doc- 
 trine concerning property in the waters of streams and 
 riparian rights are completely abrogated. Upon this subject, 
 in the recent case of Stowell vs. Johnson, 1 the Supreme Court 
 of that Territory, speaking through Blackburn, J., said: 
 " Riparian rights have never been recognized in this Terri- 
 tory, or in any State or Territory where irrigation is neces- 
 sary, for the appropriation of water for the purpose of irriga- 
 tion 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 
 
 1 7 Utah, 21,5; 26 Pac. Rep. 290.
 
 636 UTAH. [§ 457 
 
 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 proprietors, and the practice 
 and usages of the inhabitants have never considered it ap- 
 plicable, and have never regarded it."
 
 CHAPTER XVII. 
 North Dakota. 
 
 I. SUBJECT TREATED IX GEN- 
 
 ERAL. 
 Section . 
 
 458. Particular features of State. 
 
 459. Irrigation in the State. 
 
 II. GENERAI. STATUTORY ENACT- 
 MENTS OF THE TERRITORY OF 
 DAKOTA. 
 
 460. Water rights. 
 
 461. Abandonment — Manner of 
 
 locating Water rights. 
 
 462. Organization of Ditch Com- 
 
 panies. 
 
 III. GENERAL STATUTORY LAWS 
 
 OF THE STATE. 
 Section. 
 
 463. An Act to raise tax for irri- 
 
 gation purposes. 
 
 464. An Act to encourage con- 
 
 struction of artesian wells. 
 
 IV. IRRIGATION DISTRICT LAW. 
 
 465. Organization of Irrigation 
 
 Districts. 
 
 466. Power of the Board — Assess- 
 
 ments — Condemnation. 
 
 467. Riparian rights in North 
 
 Dakota. 
 
 I. Subject Treated in General. 
 
 §458. Particular Features of State.— The term " sub- 
 humid" is generally understood as applying to a portion of 
 the great plains lying to the east of the arid region. As a 
 matter of course there is on the western portion of the arid 
 region a strip of country which might be designated as sub- 
 humid. For the purposes of this discussion the sub-humid 
 region is, however, considered as extending in a broad belt 
 across the country from north to south, including portions of 
 North Dakota, South Dakota, Nebraska, Kansas and Texas. 
 Statistics show in a general way an increase from north to 
 south both in the number of irrigators and in the acreage 
 irrigated. This is due largely to the fact that conditions of 
 summer aridity increase with lower latitudes, and also in part 
 to the greater density of population and the more easily avail- 
 able water supply towards the south.
 
 638 NORTH DAKOTA. [§458-460 
 
 The State of North Dakota is in the "Great Plains" region 
 of the United States, and the most northerly of the five 
 States which are included within what is known in irrigation 
 parlance as the "Sub-humid Region." It will be seen by a 
 glance at the map that the State has a large number of quite 
 important streams and lakes, especially in the western and 
 more arid region, which make the possibilities for an extensive 
 system of irrigation good. 
 
 H5^- Irrij^atioii in the State.— Dependence upon the 
 annual rainfall in the State has held back the progress of 
 irrigation within the State of North Dakota, although this 
 dependency has often been doomed to disappointment. But 
 since becoming a State the practice of the art of irrigation 
 has advanced considerably, and is bound to advance in the 
 future as an adjunct to the rainfall. Besides the natural 
 streams and lakes flowing wells have been found in the 
 eastern end of the State, in the valley of the St. James River 
 and that of the Red River of the North, which source of 
 supply has been utilized for this purpose. 
 
 At present the State of North Dakota can be classed among 
 those States having the district law, the Legislature in 1891 
 having passed a law for simple means of District organization. 
 
 II. Oeiieral Statutory Euattmeiits of the Territory of 
 
 Dakota. 
 
 § 4(>(>. Water Rights.— In 1881 the legislature of the 
 Territory of Dakota passed an Act upon the subject of water 
 rights, of which the following is the substance:^ 
 
 Sec. 2029 is as follows: "Any person or persons, corpora- 
 tion or company, who may have or hold a title or possessory 
 right or title to any mineral or agricultural land within the 
 limits of this Territory shall be entitled to the usual enjoy- 
 ment of the waters of streams or creeks in said Territory, for 
 mining, milling, agricultural or domestic purposes; provided, 
 that the right to such use shall not interfere with any prior 
 
 1 See Compiled Laws of Dakota, 18S7, Sec. 2029-2038.
 
 ^460-402] NORTH DAKOTA. 639 
 
 right or claim to such waters when the huv has been complied 
 with in doing the necessary work." 
 
 The Act provides, without authorizing any condemnation 
 proceedings or paj-ment to the owners of lands through which 
 a ditch is sought to be run, that any ditch-owner shall have 
 the right-of-way through and over any tract or piece of land 
 for the purpose of conducting and conveying the water; but 
 such right to dig and construct ditches is limited to only so 
 much as is necessar}"^ for the purposes required. But the Act 
 provides that an}^ ditch-owner damaging or injuring the land 
 of another, b}^ reason of cutting or digging ditches through 
 the same, the party so committing the same shall be liable to 
 the party injured for the actual damage occasioned thereby. 
 
 § 461. AbaiHloiinieut. — Manuer of Locating Waler- 
 liights. — Sec. 2037 provides that any person or company ap- 
 propriating water shall construct at least twenty feet of the 
 ditch or flume within thirty days of the first act of appro- 
 priation, and turn the water therein from the channel of the 
 creek or stream; and construct at least twenty rods 
 of said ditch, if needed, and turn the water therein within 
 six months from the date of the appropriation; and within 
 tw^enty days from the date of the location the locator must file 
 a location certificate Vv^ith the Register of Deeds in the proper 
 county; a copy of such certificate must be posted at or near 
 the head of such ditch, and must contain the name of locator, 
 the date of location, number of inches claimed and the pur- 
 pose of the appropriation. 
 
 Sec. 2038. " On failure to commence the construction of 
 such ditch or flume for sixty days after location, and prose- 
 cute such ditch, canal or flume to its final completion with- 
 out unnecessary delay, such appropriation shall be deemed 
 abandoned." 
 
 § 462. Organization of IMteli Conipanios. — In addition to 
 the above the Territorial laws provide for the organization 
 of ditch companies for the purpose of irrigation, which law 
 provides that the articles of incorporation must specify " the 
 stream or streams from which the water is to be taken; the
 
 640 NORTH DAKOTA. [§462,463 
 
 point or place on the stream at or near which the water is to 
 be taken out; the line of said ditch, as near as may be, and 
 the use to which the said water is intended to be applied." ^ 
 
 The law provides for a right-of-way over the line named in 
 the articles. But no water shall be diverted to the detriment 
 of those who have a priority of right to the same. 
 
 Sec. 31 18 provides: " That every ditch corporation must 
 furnish water to the class of persons using water in the way 
 and for the purpose for which the articles of incorporation 
 declare the water obtained by the corporation is to be used, 
 whether miners, manufacturers, millmen or farmers, whenever 
 they shall have water in their ditch unsold, and must at all 
 times give the preference to the use of water in such ditch to 
 the class of persons so named in the articles." 
 
 Every corporation formed under the Act must within ninety 
 days commence the construction of its works, and must 
 prosecute the same with due diligence until completed; and 
 the time of completion of its works shall not extend beyond 
 a period of four years. - 
 
 III. Ueiieral Statutory Laws of the State. 
 
 § 403. All Act to Raise Tax for Irrigation Purposes.— 
 
 On February 11, i8go, there was approved an Act which had 
 been passed by the Legislature of the State of North Dakota, 
 entitled, "An Act to allow organized town.ships to raise a tax 
 for irrigation purposes," ^ 
 
 Section i. "Whenever ten legal voters of any organized 
 township petition the Town Board fifteen days previous to an 
 annual town meeting to submit the subject of irrigation, by 
 building dams to create ponds or reservoirs on any of the 
 creeks or coulies in said township, it shall be the duty of said 
 Town Board to submit the question to the voters at the next 
 annual town meeting, and the Town Clerk shall cause three 
 notices to be posted specifying the place and nature of said 
 improvements." 
 
 The Act provides that whenever two-thirds of the legal 
 
 1 Compiled Laws of Dakota, 18S7, ^ As amended in 1879. 
 
 Sec. 3116-3125. 3 See Stat. 1890, p. 149-
 
 §463-465] NORTH DAKOTA. 641 
 
 voters of any town shall agree at their town meeting that the 
 water supply should be increased for the purpose of irrigation 
 it shall be lawful that a tax be levied for the purpose of con- 
 structing the works necessary by and under the directions of 
 the Board of Supervisors of said town; provided, such im- 
 provements shall be wholly in said town. And^ the Act 
 authorizes a tax to be levied which shall not exceed two 
 mills on the dollar upon the assessed valuation of the prop- 
 erty. 
 
 §464. An Act to Encourage Construction of Artesian 
 Wells — On March 6, 1891, there was approved "An Act to 
 encourage the construction of artesian wells and defining the 
 rights and liabilities of persons, corporations and companies 
 constructing said wells for the purpose of power and for the 
 purpose of irrigating agricultural lands." ^ 
 
 Section i provides: " It shall be lawful for any person or 
 persons, or association of persons, to construct artesian wells 
 upon any land owned or leased by them for the purpose of 
 power or the irrigation of lands for agricultural purposes, and 
 for any and all purposes for which said water from such wells 
 may be utilized." 
 
 The Act also provides for the disposition of surplus water 
 from any artesian well; for a hearing to determine whether 
 any lands over which such water is proposed to be conducted 
 will be damaged; determination of damages if any; appeals 
 from the decisions of the Court; that water-ways may be per- 
 mitted on railway rights-of-way; penalty for interference 
 with artificial water-courses, and repair of ditches. 
 
 IV. Irrigation District Law. 
 
 §465 Organization of Irrigation Districts.— On March 7^ 
 1889, there was approved " An Act to promote irrigation," ^ 
 section i of which Act provides: " Whenever the owners of 
 any body of lands susceptible of one mode of irrigation desire 
 to irrigate the same they may present to the Board of County 
 Commissioners of the county in which the lands or a greater 
 
 1 See Stat. 1891, \). 107. -See Stat, 1891, p. 213.
 
 642 NORTH DAKOTA. [§465,466 
 
 portion thereof are situated, at a regular or special meeting 
 of the Board, a petition setting forth that the}^ desire to 
 adopt measures to irrigate the same, the description of the 
 lands by legal subdivisions, the number of acres in the whole 
 district and the number of acres in each tract, with the names 
 of the owners thereof, and the names of three persons who 
 may desire to ser\'e as trustees for the first three months, and 
 the name desired for the proposed irrigation district." 
 
 The Act provides for the publication of the petition; the 
 proceedings when the district proposed is partly in different 
 counties; the hearing of the petition by the County Commis- 
 sioners and their approval thereof, and the recording of the 
 same. Also that the petitioners may make such by-laws as 
 they may deem necessary for the control and management of 
 the district, which by-laws must also be recorded. 
 
 §466. Power of tlie Board.— Assessments.— ('oiKleiiiiia- 
 
 tioii.— Section 8 provides: "The Board thus formed shall 
 have power to elect one of their number president thereof, 
 and to employ engineers to survey, plan, locate, and estimate 
 the cost of the works necessary for the irrigation, including 
 dams, canal sluices, water gates, embankments and material 
 for construction, and to construct, maintain and keep in repair 
 all works necessary to the object in view." 
 
 The Board must report all of its transactions to the County 
 Commissioners. Also, the Board must appoint three com- 
 missioners, and must view and assess on the lands of the dis- 
 trict a charge proportionate to the whole expense and to the 
 benefits which will result from such works. Provisions are 
 made for the collection of the assessment, and that from and 
 after filing of the list or certified copy thereof the charges 
 assessed upon any tract of land within the county constitutes 
 a lien thereon. 
 
 Section 23. The trustees may acquire by condemnation: 
 
 "First, The right to use of any running water not already 
 used for culinary or domestic purposes for irrigating, milling 
 or mining purposes. 
 
 "Second, The right-of-way for canals, drains and embank- 
 ments and other works necessary, and may take materials for
 
 §466,467] NORTH DAKOTA. 643 
 
 the construction, maintenance and repair thereof from lands 
 within the limits of the district." ^ 
 
 § 467. Riparian Rights in North Dakota. — The common 
 law riparian rights are recognized in the State of North 
 Dakota. The statute provides: Water running in a definite 
 stream formed by nature over or under the surface may be 
 used bj' the owners of the land as long as it remains there; 
 but he may not prevent the natural flow of the stream or the 
 natural spring from which it commences its definite course, 
 nor pursue nor pollute the same.^ 
 
 And in the case of Sturr vs. Beck, decided by the Supreme 
 Court of the United States, it was held under the statutes of 
 that State that a riparian owner of land bordering upon a 
 running stream has a right to the flow of its waters as a 
 natural incident to his estate, and they cannot be lawfully 
 diverted against his consent.^ 
 
 1 See also Act approved March prescribing the duties thereof." — 
 7, 1891, entitled "An Act creating Stat. 1891, p. 216. 
 the office of State Superintendent 2 Levisee's Dakota Codes, 2d ed. 
 
 of Irrigation and Forestry, and 781. 
 
 3 133 U. S. 541-
 
 CHAPTER XVIII. 
 South Dakotii. 
 
 I. SUBJECT TREATKD IN GENERAL. 
 Section.— 
 
 46S. Particular feature — Irrigation 
 in State. 
 
 II. GENERAL STATUTORY 
 ENACTMENTS. 
 
 469. Territorial irrigation laws. 
 
 470. Corporations for sinking ar- 
 
 tesian wells. 
 
 III. IRRIGATION DISTRICT LAW. 
 
 471. An Act providing for the 
 
 sinking of artesian wells for 
 public purposes — Organiza- 
 tion of Districts. 
 
 Section. — 
 
 472. Same-Voting of bonds — Con- 
 
 struction of Works. 
 Conveyance of Water — Title 
 
 to property — Lien for water 
 
 rent. 
 Taxes — Reservoirs. 
 Use of water. 
 
 476. Water must not be wasted. 
 
 477. Riparian rights in vSouth 
 
 Dakota. 
 
 473- 
 
 474 
 475 
 
 I. Subject Treated in General. 
 
 § 468. Tarticular Features.— Irrif^ation in State.— In 
 
 general what has been said about the particular features of 
 North Dakota and of the sub-humid region^ will also apply 
 to the State of South Dakota. The supply of water in rivers, 
 streams and lakes is large, but as yet it is utilized very little 
 for the purpose of irrigation as compared with its possibilities. 
 The art of irrigation is practiced more as a valuable adjunct 
 to the rainfall of the State than as an absolute necessity. The 
 principal feature of the State is the w^onderful artesian well 
 basins, one of the greatest being the James or Dakota River 
 Vallev Basin, which is know-n to extend from twenty miles 
 
 ^ See Ante Sections. 458, 459.
 
 §468-470] SOUTH Dakota. 645 
 
 east of the James River to the Missouri River on the west, 
 and possibly further. Water is obtained in abundance wher- 
 ever the water-bearing strata have been tapped. The depth 
 of the water-bearing strata varies, being at the south end of 
 the basin from thirty to six hundred feet below the surface, 
 and about fifteen hundred feet near Devil's Lake. This is 
 partly due to the drift in the strata and partly to the differ- 
 ence in elevation. 
 
 The flow of some of these wells is enormous when the size 
 of the pipe or casing is taken into consideration. The Woon- 
 socket well, near Huron, is noted because it throws a four- 
 inch stream of water seventy-one feet high. The actual flow 
 of the well is two thousand seven hundred feet per minute or 
 six cubic feet per second. 
 
 II. Oeneral Statutory Enactments. 
 
 § 4G1). Territorial Irrigation Laws.— The laws adopted 
 by the Territory before its division into North and South 
 Dakota was adopted by South Dakota when it became a 
 State. An abstract of these laws has been given in the chap- 
 ter devoted to North Dakota.^ 
 
 § 470. Corporations for Sinking Artesian Wells.— On 
 
 March 8, 1890, there was approved an Act to encourage the 
 construction of artesian wells. ^ 
 
 Section i of said Act provides: "It shall be lawful for any 
 person or persons, corporation or corporations, company or 
 companies to construct artesian wells upon any lands owned 
 or leased by such person, company, or corporation, for the 
 purpose of power and the irrigation of land for agricultural 
 purposes, and for any and all purposes for which said water 
 from said well may be utilized.'' 
 
 The provisions of this Act are somewhat similar to the Act 
 of March 6, 1891, of North Dakota, an abstract of which has 
 been given in the previous section.-' 
 
 1 See ante Sections 460-462. 2 See Stat. 1890, p. 245. 
 
 Comp. Laws of Dakota, 1887, Sees. 3See ante Section 464, Laws of 
 
 2029-2038. Also vSecs. 31 16-3125. North Dakota 1891, p. 107.
 
 646 SOUTH DAKOTA. [§ 470, 471 
 
 The Act provides that a right of way may be obtained for 
 ditch purposes, but that improved lands shall not be crossed 
 by more than one ditch where one can be made to serve the 
 purpose. It also provides for disposing of the surplus water; 
 penalties are prescribed for interfering with or injuring an}^ 
 of the works; the owners must keep all ditches and water- 
 ways in good repair; and when the ditch crosses the lands of 
 a person such person may apply to the owner of the ditch for 
 a right to use the surplus water flowing therein to irrigate 
 his lands, and such owner shall allow him to do so on pay- 
 ment of a just rental. Water rates are to be fixed by the 
 Count}^ Commissioners. 
 
 111. Irrigation District Law. 
 
 § 471. All Act Providing for the Sinliing of Artesian Wells 
 for Pnblic Purposes. — Organization of Districts. — On March 
 9, 1891, there was approved an Act entitled "An Act author- 
 izing civil townships to sink artesian wells for public purposes 
 and to issue bonds therefor. ' ' ^ 
 
 Section i. "That the water of the artesian basin underlying 
 or being in the shale formation, in all townships in the State 
 of South Dakota which shall petition for and sink artesian 
 wells as hereinafter provided, and not heretofore appropri- 
 ated, is hereby declared to be the property of the public, and 
 is dedicated to the use of the people of the State of South 
 Dakota subject to appropriation as hereinafter provided." 
 
 Sec. 2 provides: That whenever twentj^ or more persons, 
 each owning not less than eighty acres of land, in any town- 
 ship of the State, shall make an application in writing to the 
 State Engineer of Irrigation, requesting him to locate within 
 said township artesian wells, not to exceed nine in number 
 if said wells shall be six inches in diameter and not to ex- 
 ceed sixteen in number, if said wells shall be four and one- 
 half inches in diameter, for the purpose of supplying the 
 public with water, it shall be the duty of said engineer to 
 locate in said township the number of wells mentioned in 
 
 1 vStat. 1891, p. 196.
 
 §471-473] SOUTH DAKOTA. 647 
 
 the application, at such places as in his judgment may best 
 subserve the interest of all the resident landowners of the 
 township. 
 
 The State Engineer must file the said application, with his 
 report locating said wells, in the office of the Register of 
 Deeds for the co\inty. His report must contain the number 
 of wells, the size of each well, and the exact location of each, 
 together wdth a full description thereof; and notice to the 
 Board of Supervisors of filing said application and report 
 must be made by the Register of Deeds. 
 
 § 472. Same. -Toting of Bonds.— Construction of Works. 
 The chairman of the Board of Supervisors shall within five 
 days after receipt of said notice give notice to the electors of 
 said township of an election for the purpose of voting upon 
 the question of issuing bonds for the purpose of sinking the 
 artesian wells; rules for the conduct of said election are then 
 provided. "The ballots used in said election shall be printed 
 or written in substantially the following form: 'Shall the 
 
 township of issue bonds for the sinking of artesian 
 
 wells at the places mentioned in the notice of this election? 
 Yes or No.' " If the election is carried in favor of issuing 
 the bonds the town clerk shall deposit in the office of the 
 Register of Deeds of the county a duplicate of the canvass of 
 votes for the same. 
 
 The Act provides that the Board of Supervisors shall ad- 
 vertise for bids for the construction of the wells and publish 
 the fact that no money will be paid nor liability incurred until 
 the said w^ell or wells shall be completed and accepted by the 
 State Engineer of Irrigation. Every person whose bid is 
 accepted must within twenty days thereafter commence the 
 actual work of sinking the same with all convenient speed 
 until completion. The State Engineer upon receiving the 
 notice of the completion of any well must examine and if 
 satisfactory accept the same. 
 
 §473. Conveyance of Water-Title to Property.— Lien for 
 Water Rent— The Supervisors shall convey the water from 
 
 wells thus constructed to the highest point of land upon the 
 tract to be irrigated .
 
 648 SOUTH DAKOTA. [§473-475 
 
 Before anj^ contract for the sinking of an artesian well shall 
 be let the person upon whose lands the well is located shall 
 make to the township a deed of one acre of land upon which 
 the well is located, with a right of way to the well. Civil 
 townships are empowered to receive and liojd real estate for 
 the purposes mentioned. 
 
 Rules are provided for making application for the use of 
 water; contracts for its use, filing application and contract 
 with the Register of Deeds, which shall be recorded. 
 
 Sec. 21 provides that the township shall have a lien upon 
 land for the amount of water rent remaining unpaid, and 
 may forclose the lien whenever said water rents shall remain 
 unpaid for thirty days after the time mentioned jn the con- 
 tract for payment. 
 
 § 474. Taxes. — Bonds. — lleservoirs. — In case there shall 
 not be sufficient money from water rents to pay the amount 
 of interest on the bonds then it is the duty of the officers of 
 said township to levy and collect a tax for that purpose; as 
 well as it is their duty to levy a tax to provide for a sinking 
 fund to pay the principle of the bonds when due. 
 
 Provisions are then made for the redemption of the bonds, 
 the form of the bonds, and that the bonds shall be a lien 
 upon the civil township. 
 
 Provisions are also made for the sinking of artesian wells 
 for the purpose of filling lake-beds, streams or artificial reser- 
 voirs. Also when the number of wells may exceed sixteen. 
 
 §475. Use of Wjiter.— Sec. 34 provides; "That the State 
 Engineer shall prescribe rules and regulations for the distri- 
 bution and use of water from public wells, not in conflict 
 with law, subject to the approval of the township Board of 
 Supervisors." 
 
 Sec. 36 provides that the water derived from artesian wells 
 pursuant to the Act shall be applied to the following purposes 
 and in the following order: 
 
 " First. For domestic purposes, which is hereby defined to 
 mean for household use, for the supply of domestic animals 
 kept with and for the use of the household farm, and the
 
 §475,476] SOUTH Dakota. 649 
 
 watering and sustaining of trees, grass, flowers and shrubbery 
 about the house of the consumer, in an area not exceeding 
 one-half acre of land. 
 
 "Second. All the waters from said wells not used for 
 domestic purposes shall be applied to the purposes of irriga- 
 tion." It is provided that whenever there is a surplus of 
 water the Board of Trustees is authorized to lease the power 
 for manufacturing purposes, as in their judgment will best 
 subserve the interests of the people. 
 
 The Act provides that all wells must be enclosed by a good 
 and substantial building. 
 
 Sec. 42. " Any person, association or corporation owning 
 land shall have the right to sink or bore an artesian well or 
 wells on his, their or its lands, for the purpose of procuring 
 water for domestic use, for irrigation or for manufacturing 
 purposes; but in wells hereafter constructed no more water 
 shall be appropriated by such person, association or corpora- 
 tion than is needed for said purposes when such additional 
 use of water interferes with the flow of wells on the adjacent 
 lands." 
 
 §476. Water Must Not lie Wasted.— The Act provides 
 that no person controlling an artesian well shall permit the 
 waters thereof to flow to waste. 
 
 Also, whenever any township in which an incorporated 
 village is or shall be located is desirous of sinking an artesian 
 well it shall be lawful for the village to join with the town- 
 ship in voting upon the question of bonds; and the electors 
 of the entire township, including the village, shall vote upon 
 the question in the same manner as if there was no separate 
 incorporated village, and the bonds so issued shall be a lien 
 upon all taxable property of the township and village 
 alike.' 
 
 1 On March 6, 1893, there was nected therewith." See Stat. 1893, 
 
 approved "An Act to provide for p. 182. 
 
 the sinking of artesian wells and The Act provides that when- 
 
 for the levying of a tax to pay the ever fifty freeholders of any 
 
 expenses thereof; and to define county of the State, of whom fif- 
 
 the duties of certain officers con- teen shall be each the owner of
 
 650 
 
 SOUTH DAKOTA. 
 
 [§477 
 
 §477. Riparian Riglits in Sontli Dakota. — Riparian 
 rights as known under the common law are also recognized 
 and protected in the State of South Dakota,^ 
 
 not less than eighty acres of 
 land, located on any natural 
 water-course, on which an artesian 
 well is sought to be located, shall 
 petition the engineer of irrigation 
 for the location and establishment 
 of an artesian well it shall be the 
 duty of the engineer to personally 
 investigate for the purpose of de- 
 termining the practicability of 
 such a well. The engineer must 
 then make his report in writing 
 and file the same with the County 
 Auditor, together with an esti- 
 mate of the total cost for putting 
 down such well. The Act pro- 
 vides for "a Board of Viewers" 
 to be appointed by the County 
 Auditor, who must personally ex- 
 amine the location of such well 
 and file their report with the 
 County Auditor; it is then the 
 duty of the County Auditor to fix 
 a day for the hearing and con- 
 sideration of such report by the 
 Board of County Commissioners 
 of that county, and he shall call 
 such commissioners together for 
 that purpose. Appeal may be 
 taken from the decision of the 
 board by any person aggrieved 
 thereb}'. Special election is pro- 
 vided for by the Act on the ques- 
 tion of issuing the warrants of 
 said county to the amount of esti- 
 mated costs and values of con- 
 structing and putting down the 
 well. If a majority of the votes 
 cast at the election be in favor of 
 
 issuing warrants the County Com- 
 missioners shall proceed to con- 
 struct such artesian well. Power 
 is given the County Commissioners 
 to acquire the site of the well, and 
 the letting of contracts for its con- 
 struction; the payment for the 
 same, and special assessment and 
 taxes. 
 
 Sec. 25 provides that it is the 
 duty of every person through 
 whose lands any natural water- 
 course extends, on which an arte- 
 sian well may be located therein, 
 to keep open and unobstructed 
 the flow of water from such well. 
 
 Sec. 32. "All natural water 
 courses in this State, whenever an 
 artesian well is located thereon 
 under the provisions of this Act, 
 are hereby created and declared 
 public natural water-courses for 
 the flow of water from such arte- 
 sian wells for the benefit of the 
 public, and private individuals 
 located on such water-course are 
 subject only to compensation for 
 damages as in this Act provided." 
 
 Sec. 33 provides that nothing 
 in this Act shall be construed to 
 repeal any portion of the Act of 
 1891, quoted above. 
 
 See also Act approved March 6, 
 1893, entitled "An Act to encour- 
 age the construction of reservoirs 
 for the purpose of irrigating agri- 
 cultural lands." Stat. 1893, p. 189. 
 
 1 See ante Sec. 467; also Sturr 
 vs. Beck, 133 U. S. 541.
 
 CHAPTER XIX. 
 Wyoming. 
 
 I. SUBJECT TREATED IN 
 
 GENERAL. 
 Sections. — 
 
 478. Particular features of State. 
 
 479. Irrigation in the State. 
 
 II. GENERAL STATUTORY ENACT- 
 
 MENTS. 
 
 4S0. Organization of ditch com- 
 panies. 
 
 481. Rights to use of water for 
 
 irrigation and right of way 
 for ditches. 
 
 III. STATE CONTROL OF WATERS. 
 
 482. Constitutional provisions. 
 
 483. Same — continued. 
 
 484. Act of September 22, 1890. — 
 
 Water Divisions. 
 
 485. State Engineer and his duties. 
 
 Sections.— 
 
 486. Division Superintendents and 
 
 their duties. 
 
 487. Board of Control and duties 
 
 thereof. 
 
 488. Same. — Contests. 
 
 489. vSame.— A p p e a 1.— Applica- 
 
 tion for right to appropriate 
 water. 
 
 490. Water Commissioners and 
 
 their duties. 
 
 Construction of head gates 
 and measuring devices. — 
 Appeal. 
 
 Statute of " State Control" 
 and "District Law" com- 
 pared. 
 
 Criticism of the Act. 
 
 491. 
 
 492. 
 
 493- 
 
 494. Riparian rights in State. 
 
 I. Subject Treated in tJeuenil. 
 
 § 478. Particular Features of State.— Wyoming lies prin- 
 cipally within the Great Plains region. The continental divide 
 runs diagonally across the State, containing the headwaters 
 of the rivers flowing into the Great Interior Basin, or south- 
 ward to the Colorado river. From the continental divide the 
 land as a whole falls gradually to the north and east toward 
 the Yellowstone and Missouri, the rivers flowing either north- 
 ward into tlie Yellowstone or eastward down the slope of the 
 great plains. The agricultural land of Wyoming as a whole 
 lies at the highest altitude of that of any State in the Union,
 
 652 WYOMING. [§478,479 
 
 nearly one-half of the total area being above 6,500 feet, and 
 probably less than one per cent, under 4,000 feet. The 
 character of the agriculture and of the products is of course 
 governed by this fact. And, as is well known, the pastoral 
 industries lead in importance the areas devoted to these 
 practically embracing the greater part of the State. In the 
 northern counties, where the altitude is from 3,500 feet up- 
 ward, and also along the lower portion of the Platte nearly 
 all kinds of fruit and vegetables of the temperate region reach 
 maturity, and in nearl}^ all parts of the State grass and the 
 hardier grains flourish. 
 
 §479. Irrij^ution iu the State. — Nothing can be grown 
 without irrigation in the State of Wyoming, with the excep- 
 tion, perhaps, of a scanty crop in some spot occasionally 
 favored with an unusal summer's rain. No dependence can 
 be placed upon non-irrigated crops. Land in this State, as 
 in all parts of the arid region, has no value without water. 
 But the arable lands being almost boundless, agricultural 
 development is restrained only by the uncertainty of securing 
 water. Irrigation in Wyoming is still in its infancy, and 
 there are but few works of notable size. There are a great 
 number of small ditches leading from the streams out upon 
 the lowest bottom land, where in most instances a few well 
 located high line canals would serve more land with greater 
 economy. But since the new laws providing for the State 
 control of the waters have been enacted a number of works 
 have been constructed under the superintendence of the State 
 Engineer that ase a credit to the State. The possibilities of 
 a great irrigation system in the State are good, since there is 
 perhaps a larger proportion of perennial springs of notable 
 size than in an}' other part of the west. A study of the sta- 
 tistics as furnished by the census bureau shows that the 
 greatest existing contrast in size of irrigated farms is between 
 Utah and Wyoming, which political divisions, although ad- 
 joining each other, occupy almost extreme positions as 
 regards methods and character of agriculture. In Utah the 
 land is greatly subdivided, the average size of irrigated farms 
 being twenty-seven acres, while on the other hand the average
 
 § 479-481] WYOMING. 653 
 
 farm or ranch in Wyoming is one hundred and nineteen acres. 
 In Wyoming, therefore, great acreages are the rule, while in 
 Utah they are the exception. 
 
 II. General Statutory Enactments. 
 
 §480. Organization of Ditcli Companies. — In 1884 an 
 Act of the Legislature was passed for the incorporation of 
 ditch companies,^ which provides that whenever three or 
 more persons associate to form a company for the purposes of 
 constructing a ditch or ditches for the purpose of irrigating 
 lands or other useful purposes they shall in their certificates 
 specify as follows: " The stream or streams from which the 
 water is to be taken, the point or place on said stream at or 
 near which the water is to be taken out, the line of said ditch 
 as near as may be, and the use to which said water is intended 
 to be applied." A right-of-way is given to the ditch com- 
 pany, provided that the lines proposed shall not interfere with 
 any other ditch whose rights are prior. It is also provided 
 that the ditch company may sell the water to farmers or other 
 persons; the rates at which the water is to be sold to be fixed 
 by the County Commissioners. 
 
 Sec. 548 provides for condemnation proceedings. 
 
 § 481. Bights to Use Water for Irrigation, and Right of 
 Way for Ditches. — Title 19, Sec. 1318-1330 of the Rev. Stat, 
 of Wyoming provide ^ that owners of land are entitled to a 
 right-of-way for ditch and canal purposes; and also provide 
 for the proceedings necessary to acquire the same. Also that 
 the owner may raise the water from the stream by means of 
 any wheel or other machine. 
 
 Section 1347 -^ provides for penalties for the destruction of 
 any irrigation works to be a sum not exceeding $100 or 
 confinement in the county jail not exceeding six months, or 
 both. 
 
 Sec. 1360 provides, that it is the duty of all parties owning 
 or operating any ditch, at the point and place where the 
 
 1 See Rev. Stat. Wyo., Sees. 532- 3 Sees. 1317 and 1321 were re- 
 
 536. pealed in 1890. 
 
 ^ Rev. Stat, of Wyoming.
 
 654 WYOMING. [§481-483 
 
 water is diverted from its natural channel, to construct and 
 maintain some fit and proper obstruction whereby all fish will 
 be prevented from entering said ditch or canal. And any 
 owner violating this provision shall be judged guilty of a 
 misdemeanor, and on conviction thereof shall be punished 
 by a fine not exceeding $ioo, or by imprisonment in the 
 county jail not less than ten nor more than sixty da3-s, or 
 both. 
 
 III. State Control of Waters. 
 
 § 482. State Constitutional Provisions.— The admission 
 of Wyoming as a State on July lo, 1890, was calculated to 
 work great changes in its irrigation law. In the constitution 
 of the State, adopted by the people in the Fall of 1889, and 
 ratified by Congress on the admission to statehood, it was 
 provided that all waters were the property of the State; that 
 there should be a Board of Control, consisting of the State 
 Engineer and Superintendents of water divisions, to have con- 
 trol of the appropriation, distribution, and diversion of all 
 waters, subject to review by the Courts; that priority of 
 appropriation gives the better right, and that the State shall 
 be divided into four water districts by the legislature. This 
 was the beginning of the present simple but eifective irriga- 
 tion laws of Wyoming, which will be discussed in the sub- 
 sequent portion of this chapter. 
 
 The constitutional provisions referred to were as follows: 
 
 Article i, Sec. 31, provides: "Water being essential to 
 industrial prosperity, of limited amount, and easy of diver- 
 sion from its natural channel, its control must be in the State, 
 which, in providing for its use, shall equally guard all the 
 various interests involved." 
 
 Sec. 32 provides: "Private property shall not be taken for 
 private use, unless by consent of the owner, except for private 
 ways of necessity, and for reservoirs, drains, flumes or ditches 
 on or across the lands of others, for agricultural, mining, mill- 
 ing, domestic, or sanitary purposes, nor in any case without 
 due compensation." 
 
 §483. Same— Contimied.— Article 8, Sec. i, of the new 
 State constitution provides: "The waters of all natural streams,
 
 §483,484] WYOMING. 655 
 
 springs, lakes or other collection of still water, within the 
 boundaries of the State, are hereby declared to be the prop- 
 erty of the State. 
 
 Sec. 2. There shall be constituted a Board of Control, to be 
 composed of the State Engineer and Superintendents of Water 
 Divisions, which shall under such regulations as may be pre- 
 scribed by law have the supervision of the waters of the State 
 and of their appropriation, distribution and diversion, and of 
 the various officers connected therewith. Its decisions to 
 be subject to review by the Courts of the State. 
 
 Sec. 3. Priority of appropriations for beneficial uses shall 
 o-ive the better right. No appropriation shall be denied, ex- 
 cept when such denial is demanded by public interest. 
 
 Sec. 4. The legislature shall by law divide the State into 
 four (4) water divisions, and provide for the appointment of 
 superintendents thereof. 
 
 Sec. 5. There shall be a State Engineer, who shall be 
 appointed by the Governor of the State and confirmed by 
 the Senate; he shall hold his office for the term of six (6) 
 years, or until his successor shall have been appointed and 
 shall have qualified. He shall be President of the Board of 
 Control, and shall have general supervision of the waters of 
 the State and of the officers connected with its distribution. 
 No person shall be appointed to the position who has not 
 such theoretical knowledge and such practical experience and 
 skill as shall fit him for the position." 
 
 § 484. Act of December 22, 1890.— Water Divisions.— 
 
 As California is taken as the model as to her irrigation dis- 
 trict law so Wyoming may be taken as the model as to the 
 law of State control of waters. 
 
 On December 22, 1890, conformably with the constitutional 
 provisions above quoted, there was approved "An Act pro- 
 viding for the supervision and use of the waters of the 
 State." 1 
 
 Sections i to 5 provide for the division of the State into 
 four grand water divisions, the first of which in a general 
 way is to coincide with the drainage areas of the basins of 
 
 IStat. Wyo. 1890-91, pp. 91-106.
 
 656 WYOMING. [§ 484, 485 
 
 the North Platte and its tributaries, the South Platte River 
 and the Snake; second, all lands drained by the tributaries of 
 the Yellowstone and the Missouri Rivers north of the water- 
 shed of the North Platte and east of the sufaimit of the Big 
 Horn Mountains; third, all lands drained by the Big Horn 
 River and its tributaries; fourth, all lands drained by the 
 Green, Bear and Snake Rivers and the tributaries thereof, 
 except Snake River (a tributary of Green River) and its 
 tributaries. 
 
 §485. State Engineer and His Duties.— Sees. 6 to 12 
 
 provide that the State Engineer before entering upon his 
 duties shall take and subscribe an oath, and shall file with 
 the Secretary of State the same and his ofl&cial bond in the 
 penal sum of five thousand dollars conditioned for the faithful 
 discharge of the duties of his office. His duties are prescribed 
 in the law defining the duties of the "Board of Control," 
 and in addition he shall make measurements and calculations 
 of the discharge of the streams from which water shall be 
 taken for beneficial purposes, commencing such works upon 
 those streams that are most used for irrigation or other bene- 
 ficial purposes. He shall collect the facts and make surveys 
 to determine the most suitable location for constructing the 
 works necessary and to ascertain the location of the lands 
 best suited for irrigation. He shall examine reservoir sites 
 and make reports thereof. He shall become conversant with 
 the water-ways of the State, and the needs of the State as to 
 irrigation matters, and in his reports thereof shall make sug- 
 gestions as to the amendment of existing laws or the enact- 
 ing of new laws, as his information and experience may sug- 
 gest. He shall keep in his office full and proper records of 
 his work, observations and calculations, all of which shall be 
 the property of the State. Provisions are made for one as- 
 sistant engineer and other assistants, and that the expenses 
 of the State Engineer or his assistants, when called away from 
 their office, shall be paid by the State. 
 
 Sec. 12. " The State Engineer shall prepare and render to 
 the Governor bi-ennially, and oftener if required, full and 
 true reports of his work, touching all the matters and duties
 
 § 486] WYOMING. 657 
 
 devolving upon him by virtue of liis office, which report shall 
 be delivered to the Governor on or before the thirtieth of 
 November of the year preceding the regular session of the 
 legislature." 
 
 § 486. Division Superintendents and their Duties. — 
 
 Sees. 13-18. There shall be one Superintendent for each 
 of the water divisions appointed by the Governor, to hold 
 office for four years, who shall reside in the water district for 
 which he is appointed. He shall have immediate direction 
 and control of the acts of the Water Commissioners and of the 
 distribution of the water in his division, and shall perform 
 such duties as devolve upon him as a member of the Board of 
 Control. "He shall, under the general supervision of the State 
 Engineer, execute the laws relative to the distribution of 
 water in accordance with the rights of priority of appropria- 
 tion, and perform such other functions as may be assigned to 
 him by the State Engineer." He shall be governed by the 
 rules prescribed by the Act as to the distribution of water, 
 but he shall have authority to make such other regulations to 
 secure the equal and fair distribution of water, in accordance 
 with the rights of priorit}^ of appropriation, as may in his 
 judgment be needed in his division. 
 
 Right of appeal is given to any person who may deem himself 
 injured by the regulations of such Superintendent to the State 
 Engineer. The State Engineer shall, after due notice, hear 
 whatever testimony may be brought forward by the petitioner 
 and by the Division Superintendent, and shall have the power 
 to suspend, amend, or confirm the order complained of. 
 
 Each Water Commissioner shall make report to the Division 
 Superintendent of his division as often as may be deemed 
 necessary by the Superintendent. The report must contain 
 the following information: " The amount of water necessary 
 to supply all the ditches, canals and reservoirs of that dis- 
 trict; the amount of water actually coming into the district 
 to supply such ditches, canals and reservoirs, whether such 
 supply is on the increase or decrease; what ditches, canals and 
 reservoirs are at that time without their proper supply; and 
 the probability as to what the supply will be during the
 
 658 WYOMING, [§486,487 
 
 period before the next report will be required; and for such 
 other further information as the Division Superintendent of 
 that division may suggest." The Superintendent must pre- 
 serve such reports and from them ascertain what ditches and 
 reservoirs are and what are not receiving their proper supply 
 of water, and if it shall appear that an}' ditch is receiving 
 water whose priorit}^ post-dates that of the ditch, canal or 
 reservoir in another district he shall at once order such post- 
 dated ditch shut down and the water given to the elder ditch 
 or reservoir as the case may be. His orders must direct at 
 all times the enforcement of the priority of appropriation. 
 
 § 487. Board of Control and Duties Thereof. — Sees. 19 
 to 39 provide that the State Engineer and the four Division 
 Superintendents shall constitute a "Board of Control," of 
 which the State Engineer is ex-officio president, and a ma- 
 jority of all the members of said board shall constitute a 
 a quorum to transact business. 
 
 Sec. 20 provides that it shall be the duties of said board to 
 determine the priority of right to the use of the waters of 
 the State, which determination shall begin on the streams 
 most used for irrigation and be continued until all the claims 
 for the appropriation of the same shall have been adjudicated. 
 The board shall prepare a notice setting forth the date when 
 the Engineer will begin a measurement of any particular 
 stream and the ditches diverting the waters therefrom, and a 
 place and date when the Superintendent of that Division shall 
 begin the taking of testimon}' as to the rights of the parties 
 taking water therefrom. Provisions are made for the publi- 
 cation of the notice and adjournments. It is also the duty of 
 the Superintendent to mail to each party having a recorded 
 claim to the waters of said stream a similar notice, and he 
 shall in addition thereto enclose with said notice a blank 
 form on which the claimants shall present in waiting all the 
 particulars concerning the appropriation; the said statement 
 to include the following: " The name and postoflSce address 
 of the claimant. The nature of the use on which the claim 
 for appropriation is based. The time of the commencement 
 of such use, and if distributing works are required. The
 
 § 487, 488] WYOMING. 659 
 
 date of beginning the survey. The date of beginning of con- 
 struction. The date when completed. The date of begin- 
 ning and completion of enlargement. The dimensions of the 
 ditch as originally constructed and as enlarged. The date 
 when water was first used for irrigation or other beneficial 
 purposes, and if used for irrigation the amount of land re- 
 claimed the first year; the amount in subsequent years, with 
 the dates of reclamation, and the amount of land such ditch 
 is capable of irrigating. The character of the soil and the 
 kind of crops cultivated, and such other facts as will show a 
 compliance with the law in acquiring the appropriation and 
 the rank of priority claimed." 
 
 § 488. Same. — (Contests. — Sees. 22 and 23 provide that upon 
 the date named in the notice the Division Superintendent 
 shall begin taking the testimony and must complete the same. 
 The testimony when completed must be open to inspection by 
 the various claimants upon certain days named in a second 
 notice to the claimants. Should any one who desires to con- 
 test any of the rights of the parties who have submitted their 
 evidence to the Superintendent claim any interest in a stream 
 he shall notify such parties to appear before the Superinten- 
 dent, fixing the time not less than ten nor more than fifteen 
 days from the date the notice is served on such parties, and 
 the Superintendent shall then and there proceed to hear the 
 evidence for the establishment of the rights to water as 
 enumerated in the Act. Upon the completion of the evidence 
 in this second hearing it shall be the duty of the Superinten- 
 dent to immediately transmit all the evidence and testimonj^ in 
 said adjudication to the office of the Board of Control. 
 
 Sec. 24. It is the duty of the State Engineer to proceed at 
 the time specified in the notice to make an examination of the 
 streams in question and all the works for diverting the water 
 therefrom, and the observation and measurement shall be 
 reduced to writing and made a matter of record in his office. 
 
 Sec. 25 provides that at the first regular meeting of the 
 Board of Control after the completion of such measurement 
 by the Engineer and the return of said evidence by the Divi- 
 sion Superintendent it shall be the duty of the Board of Con-
 
 660 
 
 WYOMING. 
 
 [§488 
 
 trol to make an order determining and establishing the several 
 priorities of right to the use of waters of said streams. Each 
 appropriation shall be determined in its priority and amount, 
 by the time by which it shall have been made, and the 
 amount of water which it shall have applied to beneficial 
 purposes. But no allotment of water shall exceed one cubic 
 foot per second for each sevent}' acres of land for which the 
 appropriation shall have been made.^ 
 
 1 Upon the subject of a water- 
 right being appurtenant to land 
 the Supreme Court of Wyoming 
 in the very recent case of Frank 
 v%. Hicks, 35 Pac. Rep. 475, held 
 that the right to the use of water 
 for the irrigation of land, together 
 with the ditch making such right 
 available, becomes so attached to 
 the land as part and parcel there- 
 of as to pass by a conveyance of 
 the land without mentioning the 
 water-right and to be subject to 
 the liens and liabilities which at- 
 tach to the land. 
 
 And Mr. Justice Conawa}-, in 
 rendering the very elaborate and 
 comprehensive opinion upon this 
 subject, said: " So far in this de- 
 cision the writer of this opinion 
 has purposely avoided any discus- 
 sion of the meaning and proper 
 use of the word ' appurtenant ' or 
 ' appurtenance; ' and it seems that 
 this and similar cases might be 
 decided upon principles already 
 discussed without any reference 
 to either of these words. But the 
 words constantl}' occur in the re- 
 ports of cases arising in the arid 
 region and involving water rights, 
 and will be found continually oc- 
 curring in the i-ecenl, cases from 
 which we must derive our prin- 
 cipal assistance in endeavoring to 
 arrive at a correct solution of the 
 
 questions presented in the case at 
 bar. It is important that we as- 
 certain, if we can, whether the au- 
 thorities applicable, and to which 
 we must of necessity resort, use 
 these important words correctly 
 or not. This is a consideration 
 very materially affecting the 
 weight of such decisions as au- 
 thority. So far as we are at pres- 
 ent advised no Court has said that 
 water-rights may not be appurte- 
 nant to land. But such appears 
 to be the opinion of the Colorado 
 Court of Appeals from its decision 
 of the case of Bloom vs. West, 32 
 Pac. Rep. 846. At common law 
 they might be, and quite gener- 
 ally were, so appurtenant, except- 
 ing the rights of riparian proprie- 
 tors to water as part and parcel of 
 their land. The doctrine of the 
 Colorado Court of Appeals seems 
 to be that a water-right cannot be 
 appurtenant to the land upon 
 which the water is used, because 
 the water-right is, if not a cor- 
 poreal thing, at least a separate 
 and distinct property right, which 
 may pass by assignment or con- 
 veyance regardless of the land. 
 The conclusion does not seem 
 necessarih" to follow from the 
 premise. A water-right appurte- 
 nant to land as an easement at 
 common law always was a separ-
 
 H88] 
 
 WYOMING. 
 
 661 
 
 The Act provides that it shall be the duty of the Engineer 
 to issue to all parties entitled a certificate setting forth the 
 amount of water appropriated and the amount of prior appro- 
 
 ate and distinct property right, 
 which might pass by assignment 
 or convej'ance regardless of the 
 land. It is true the authority of 
 the owner of the dominant estate, 
 to which a water-right was appur- 
 tenant, to sell and convey the 
 water-right separate from the 
 land, was limited. But he might 
 sell and convey it, separate from 
 the land, to the owner of the 
 servient estate, or he and the 
 owner of the servient estate to- 
 gether might sell and convej' it 
 to any one else. ' Appurtenant ' 
 does not mean, and never meant, 
 'inseparable.' Suppose, under 
 the common law, A to be the 
 owner of land containing several 
 rivulets. Suppose B to be the 
 owner of adjoining land, and that 
 he receives by grant from A the 
 right to divert and conduct to his 
 own land and use on that land 
 the water from one of these rivu- 
 lets, and does so. Here B's water- 
 right is a property right separate 
 and distinct in its origin from his 
 property right in his land. But 
 by common law it has become an 
 easement appurtenant to that 
 land. Suppose, further, that B 
 afterwards finds that he docs not 
 need the water, and desires to sell 
 the water-right. A will not pur- 
 chase it because he has abundance 
 of water without it, and would 
 prefer to have the water diverted 
 from his land. But C has land on 
 the opposite side of B's land from 
 A's, and wants the water. What 
 is to prevent H, with the consent 
 
 and co-operation of A, from sell- 
 ing to C the water-right, together 
 with the right-of-way for a con- 
 duit for the water across his own 
 land ? Here the water-right is 
 not only a property right separate 
 and distinct in its origin from the 
 property right of B in the land to 
 which it became appurtenant, but 
 it has been sold and conveyed as 
 a separate and distinct property 
 right apart from the land. And 
 the easement of a water-right, at 
 common law, was a more absolute 
 propertj' right in the owner of the 
 estate to which the water-right was 
 appurtenant as an easement than 
 in any water-right under our sys- 
 tem. The easement, at common 
 law, was not forfeited by non" 
 user, unless there was also ad- 
 verse user by the owner of the 
 servient , estate for a length of 
 time sufficient to create a pre- 
 scriptive right. Washb. Easem., 
 pp. 670, 671. No such rule applies 
 under our system. Non-user for 
 a much shorter time is an aban- 
 donment of the right. It is further 
 to be observed that the limitation 
 above referred to of the right at 
 common law of the owner of an 
 estate to sell an easement appur- 
 tenant to his own estate separate 
 from the estate, was sustained 
 merely from a consideration of the 
 rights of the owner of the ser- 
 vient estate. It was not because 
 the easement was not property 
 right, nor because it was insepar- 
 able from the estate to which it 
 was appurtenant. But these ease-
 
 662 
 
 WYOMING. 
 
 [§488 
 
 priation, and if such appropriation be for irrigation a descrip- 
 tion of the legal subdivision of the lands to which the water 
 is to be applied. 
 
 ments lay in grant, and, the owner 
 of the servient estate having 
 granted an easement for the bene- 
 fit of any other estate, the terms 
 of the grant could not be changed 
 by any one except himself or those 
 succeeding to his rights. Under 
 our system there arises no ques- 
 tion of servient and dominant 
 estates. Water-rights are obtained 
 by appropriation and use for a 
 beneficial purpose from the public 
 waters of the United States or this 
 State under statutes authorizing 
 such appropriation. By such ap- 
 propriation the appropriator ac- 
 quires not an absolute ownership 
 in the water itself, but a right to 
 its use which is considered as prop- 
 erty, and may be sold and con- 
 veyed as such. Strickler vs. City 
 of Colorado Springs (Colo. vSup.), 
 26 Pac. Rep. 313, and authorities 
 there cited. And there is no ser- 
 vient estate in question in such 
 matter. But, so far as we are at 
 present advised, the case of Bloom 
 vs. West, supra, is the only au- 
 thority for the proposition that a 
 water-right is a corporeal thing, or 
 the further proposition that a 
 water-right may not become ap- 
 purtenant to the land. We will not 
 attempt to exhaust the authorities 
 to the contrary, but will cite a few 
 cases, mo.stly recent, showing the 
 prevailing views of the Courts in 
 the States of the arid region." 
 * * * Then, after citing several 
 cases, the Court continued: "Thus 
 it seems that the doctrine is very 
 general in the States of the arid 
 
 region, that a water-right becomes 
 appurtenant to the land upon 
 which the water is used, and the 
 ditch, water pipe or other conduit 
 for the water becomes attached to 
 the land either as appurtenant or 
 incident to the land and necessary 
 to its beneficial enjoyment, and 
 therefore becomes part and parcel 
 of the realty. W^e have seen that 
 the doctrine of the common law is 
 substantially the same, and really 
 there appear to be vastly more 
 weighty reasons under conditions 
 existing in this region for holding 
 that a water-right is appurtenant 
 upon which the water is used than 
 under conditions existing where 
 the rules of the common law were 
 developed. The disastrous results 
 of separating the land and water 
 are immensely greater here, and 
 from considerations strictly legal 
 and technical, the water-rights 
 seem to be more thoroughly ap- 
 purtenant to the land here than 
 there. At common law the ease- 
 ment of a water-right was not lost 
 by non-user, and it might be an 
 easement in gross not connected 
 with the land or any particular 
 beneficial use. Under our system 
 there is no such thing as a water- 
 right in gross. The application 
 of the water to some beneficial 
 purpose is absolutely requisite. 
 And a water-right for purposes of 
 irrigation can no more exist 
 where there is no land to be irri- 
 gated than can an easement for 
 the passage of light to ancient 
 windows exist where there never
 
 § 489] WYOMING. 663 
 
 § 480. Same.— Appeal.— Application for Right to Appro- 
 priate Water.— Sees. 27-33 provide that any party feeling 
 aggrieved by the determination of the Board of Control may 
 have an appeal from its decision to the District Court of the 
 district within which the appropriation may be situated. 
 Provisions are made for proceedings on appeal. 
 
 Sec. 34 provides that any person or company thereafter in- 
 tending to appropriate waters in the State shall first make an 
 application to the President of the Board of Control to make 
 such an appropriation. Upon the receipt of this application, 
 which shall be furnished by the State Engineer upon a form 
 prescribed by the Board, it is the duty of the Engineer to 
 make a record of the same, and to make an examination of 
 said application to ascertain whether it sets forth all the facts 
 necessary to enable the Board of Control to determine the 
 amount of the proposed appropriation. If found defective 
 the application must be corrected. If there is any unappro- 
 priated water in the source of supply named in the applica- 
 tion the State Engineer shall approve the same by making 
 endorsement thereon, make a record of the same and return 
 it to the applicant, who shall then be authorized to proceed 
 with such work necessary to effect his appropriation. If there 
 be no unappropriated water in the source of supply the En- 
 gineer shall deny the application; but he may endorse it 
 approved for a less amount of water than the amount stated 
 in the application. Provision is also made that appeal may 
 be taken from the decision of the State Engineer to the Board 
 of Control and from its decision to the District Court. 
 
 Sec. 37. "The priority of such appropriation shall date 
 from the filing of the application in the Engineer's office." 
 
 Sec. 38. "A cubic foot of water per second of time shall be 
 the legal standard for the measurement of water in this State, 
 both for the purpose of determining the flow of water in 
 
 wereany windows. Andthis would that thinj^- upon which it so de- 
 see in to be of the very essence of pends." vSee for authorities ante 
 appuitenances. Where one thing Sees. 267-270. See also McPhail 
 depends upon another for its ex- vs. Forney (Wyo.), 35 Pac. Rep. 
 istence it would seem entirely 773. 
 proper to call it appurtenant to
 
 664 WYOMING [§ 489-492 
 
 natural streams and for the purpose of distributing water 
 therefrom." 
 
 § 490. Water Commissioners and tiieir Duties.— Sections 
 40-45 provide, That the Board of Control shall divide the 
 State into water districts , to secure the best protection to the 
 claimants for water, and the most economical supervision on 
 the part of the State. 
 
 For each district there shall be appointed by the Governor 
 one commissioner who shall hold office for two years, and 
 whose duties are: To divide the waters in the natural streams 
 of his district among the several ditches according to the prior 
 rights of each; to shut and fasten the head-gates of ditches 
 when in times of scarcity of water it is necessary to do so by 
 reason of the priority of rights of others taking water from 
 the same stream. Every person who shall wilfully open, 
 close, change or interfere with any head-gate or water-box 
 without authority shall be deemed guilty of a misdemeanor, 
 and on conviction thereof shall be fined a sum not exceeding 
 $100, or imprisoned in the county jail for the term of six 
 months, or both. The Water Commissioner is given power 
 to arrest persons offending. Said Commissioners shall not 
 begin their work until they have been called upon by two or 
 more managers of ditches, stating that there is a necessity; 
 and shall not continue performing services after the necessity 
 shall cease. 
 
 § 491. Construction of Head-Gates and Measuring; De- 
 yjces. — Appeal. — The appropriator shall maintain a substan- 
 tial head-gate at the point where the water is diverted and a 
 measuring device for the purpose of assisting the Water Com- 
 missioner in determining the amount of water that may be 
 diverted into his ditch from the stream. 
 
 Sec. 50 provides that appeal may be taken from the judg- 
 ment or decree of the District Court to the Supreme Court of 
 the State. 
 
 § 492. Statute of " State Control " and " District Law " 
 
 Compared. — This law providing for the State control and use 
 of the waters of the State of Wyoming is the most elaborate
 
 § 492, 493] WYOMING. 665 
 
 and effective statute of this class of any of the States or Terri- 
 tories of the arid region. In contrast .to the district law of 
 California, as adapted to the thickly settled States, the pres- 
 ent law of Wyoming may be considered the best and most 
 effective law upon the subject of water-rights governing the 
 sparsely settled portions of the arid west. Although we re- 
 gard the " district law " as the true economic principle in 
 the control and application of water for irrigation we do not 
 think that the condition of the sparsely settled States like 
 Wyoming is ready for such a law. In California when the 
 district law was adopted the conditions in many parts of the 
 State where the districts were actually organized were such 
 as to make the handling of waters for irrigation almost as 
 clearly a matter for municipal control as the handling of 
 water for domestic use in cities, or the paving of streets or 
 the laying of sidewalks. Of What utility is a district law in 
 the. sparsely settled sections of the country where the solitude 
 is yet to be broken by the sounds of civilization, and where 
 money and labor must first perform great tasks before there 
 can be a population sufficient to vote bonds or fill the offices 
 of the district; and where all the natural conditions of the 
 country are entirely different from those in California, where 
 the ' ' Wright Law ' ' has been so successful ? 
 
 § WS. Criticism of tlie Act.— This last legislation gives 
 a speedy and final solution of many of the troubles that be- 
 fore its passage beset the irrigator in the State of Wyoming, 
 and its practical operations are being watched by the people 
 throughout the arid region, as it seems to promise so much to 
 them. In preparing this law advantage was taken of the ex- 
 perience of other States, and much that is best has been in- 
 corporated from the laws of other irrigating countries. The 
 law is unique in this, that the State does not necessarily wait 
 for controversies and losses to arise, but of its own motion 
 steps in and ascertains how much water is available for irri- 
 gation, who are the claimants to this water, and then, know- 
 ing these fundamental facts, gives the use of the water to the 
 proper persons, employs its own agents to see that the distri-
 
 666 WYOMING. [§ 493 
 
 bution is made. In the State of Wyoming, at least, there 
 will no longer be the ludicrous spectacle of learned judges 
 solemnly decreeing the right to from two to ten times the 
 amount of water flowing in the stream, or in fact amounts so 
 great that the channel of the stream could not possibly carry 
 them, thus practicallj^ leaving the questions at stake as 
 unsettled as before. 
 
 From a stud}^ of the law it is verj^ apparent that the State 
 Engineer and Board of Control hold the most important offices 
 in that State so far as its agricultural interests are concerned, 
 and by a wise and skillful exercise of the functions intrusted 
 to them can bring about great changes for the better in the 
 development of the agricultural resources of the State. The 
 State Engineer is also the president of the Board of Control. 
 Objection may be made by some that there is too great a 
 centralization of power in one man. But this is answered 
 by the provision for appeal to the Courts by any party feeling 
 himself aggrieved, and by the provision that when the case 
 shall be finally decided the right of the prevailing party 
 relates back to the first step taken by him to secure his 
 water-rights. Thus his rights are not jeopardized by the 
 delays often attendant upon Court proceedings. The law 
 provides that the priority of the claimant's rights shall be the 
 basis for the determination of his right to use the water. 
 The law also provides for the adjudication of his claim, which 
 when made entitles the claimant to a certificate of appropria- 
 tion to the water, stating the amount of water he is entitled 
 to, the land it is intended to irrigate and the number of his 
 priority. And now for the first time he has a deed to the 
 water, which is even more important and valuable than the 
 deed to his land, from the fact that his land would be abso- 
 lutely worthless without the water. It will be thus seen that 
 while five years ago Wyoming had practically no water 
 law it stands to-day pre-eminently at the head of the list re- 
 specting irrigation legislation adopted by the various States 
 and Territories of the arid region as applying to the sparsely 
 settled communities of that region. It has embodied in its 
 law all that has been found good and efficient in the opera- 
 tion of the laws of the other States and Territories with the
 
 § 493, 494] WYOMING. 667 
 
 exception of the " District Laws," of which California has 
 the model. 
 
 § 494. Riparian Rights in State.— The doctrine of riparian 
 rights in the State of Wyoming may be considered to have 
 been wholly abandoned. The physical condition of that 
 country, which is arid to the extreme, and the land absolutely 
 valueless without the diversion and application of water upon 
 it, would not permit of the common law theory of riparian 
 rights.
 
 CHAPTER XX. 
 
 I. SUBJECT TREATED IN GEN- 
 ERAL. 
 Section.— 
 
 495. Particular features of State. 
 
 496. Irrigation in State. 
 
 II. GENERAL STATUTORY 
 
 ENACTMENTS. 
 
 497. Statutory water rights in 
 
 general. — Corporatiofis. 
 
 498. Same. — General rights pro- 
 
 vided. 
 
 499. Corporations — Powers of. 
 
 500. Condemnation of land need- 
 
 ed. — Condemnation of ripa- 
 rian rights. 
 
 501. Completion of works. — Prior 
 
 appropriations. — Rights to 
 change place of diversion. 
 — Route to be followed. 
 
 Section.— 
 
 502. No tract to be burdened with 
 
 more than one ditch. — If 
 practicable, natural stream 
 may be used for ditch. 
 
 503. Damages. — Highways. — Em- 
 
 bankments. — Distributing 
 ditches. 
 
 504. Lien. — Ditches are real es- 
 
 tate. — Abandonment. — Pen- 
 alty for injury to ditches. 
 
 505. Right of way over State 
 
 lands. — Control of Legisla- 
 ture. 
 
 506. Act of Februar}- 22, 1893. 
 
 507. Constitutionality of Act of 
 
 February, 1891. 
 
 508. Riparian rights in Oregon. 
 
 I. Subject Treated in General. 
 
 § 495. Particular Features of State. — That part of Ore- 
 gon lying east of the Cascade range, and comprising an area 
 of over thirty-five millions acres, although forming the greater 
 portion of the State, is known as Eastern Oregon, and may be 
 properly classed with the arid region. The climate, as com- 
 pared with the rest of that region, is unusually mild. As a 
 rule there is sufficient moisture two or three years out of five 
 to raise fair crops. It may be said, therefore, that while in 
 one sense irrigation is not absolutely essential, as farmers can 
 make a precarious living without it, yet, on the other hand, 
 without irrigation the most valuable resources will lie dor- 
 mant.
 
 §495-497J OREGON. 669 
 
 The general physical condition of the arid portion of the 
 State may be briefly described as follows: The geological 
 formation, soil and climate may be said to be practically the 
 same as the State of Washington, which has been described. ^ 
 In general the soil of the lands available for cultivation may 
 be said to be practically the same throughout the State, with 
 the exception of the small valleys along some of the mountain 
 streams, where the sub-strata is drift and where the soil is of 
 a different character. The formation is volcanic, and conse- 
 quently the soil is volcanic ash. That, when supplied with 
 sufficient moisture, is the most productive soil in the world. 
 
 § 496. Irrigatiou in State. — Irrigation has been quietly and 
 gradually introduced and practiced in a simple manner, each 
 farmer building his own ditch and relying upon his own un- 
 aided effort. Within the last few years many projects have 
 been set on foot looking toward the more complete utilization 
 of the water supply of the eastern part of the State for this 
 purpose. Not only has irrigation received a lasting stimulus 
 in the more arid portions of the State, where it is essential, 
 but its benefits are beginning to be seen in regions where the 
 rainfall is considered abundant. While it is true that in some 
 portions of the State agricultural development has without 
 irrigation progressed with some degree of success, it is also 
 true that the area where even partial success in this direction 
 was possible has for years been fully occupied. Hence it 
 follows that any extention of the cultivation of Oregon lands 
 in the future must depend upon bringing land and water 
 together by artificial means. 
 
 II. General Statutory Enactments. 
 
 § 497. Statutory Water Riglits in Ge)ierai.— Corporations. 
 
 On the iStli day of February, 1891, there was filed in the 
 office of the Secretary of State of Oregon, and thereafter 
 became a law, " An Act to provide for the appropriation of 
 water from the lakes and running streams of the State of 
 Oregon for the purpose of irrigation and supplying water for 
 
 1 See Ante Section 413-414.
 
 670 OREGOX. [§ 497-499 
 
 household and domestic use, and for watering live stock upon 
 dry lands, and making charges for water supplied; allowing 
 the condemnation of lands for right-of-way; prescribing the 
 manner of making appropriations and effecting condemna- 
 tion of lands; allowing the condemnation of rights of riparian 
 proprietors arising from their location; regulating the manner 
 of constructing and operating ditches and canals, flumes, 
 reservoirs, distributing ditches and feeders; prescribing right 
 of recovery of damages resulting from the construction and 
 operation of the same; securing the protection of highways; 
 granting a lien upon crops raised by irrigation, and providing 
 for its enforcement; declaring all such ditches or canals or 
 flumes to be real estate, and providing for the conveyance of 
 the same; providing punishment for trespassers; prescribing 
 the manner of settlement of conflicting rights by suit, and 
 granting right of way over State lands. 
 
 " 1 
 
 § 498. Same.— (jreueral Rights Pro\ide(l.— Section i of the 
 
 Act provides " That the use of water of the lakes and running 
 streams of the State of Oregon for general rental, sale or dis- 
 tribution, for purposes of irrigation and supplying water for 
 household and domestic consumption and watering live stock 
 upon dry lands of the State is a public use, and the right to 
 collect rates or compensation for such use of said water is a 
 franchise. A use shall be deemed general within the purview 
 of this Act when the water appropriated shall be supplied to 
 all persons whose lands lie adjacent to or within reach of the 
 line of the ditch or canal or flume in which said water is con- 
 veyed, without discrimination other than priority of contract, 
 upon payment of charges therefor as long as there may be 
 water to supply." 
 
 § 499. Corporations. — Powers of. — Sec. 2 provides that a 
 corporation organized for the construction and maintenance 
 of a ditch or works for general irrigation or other purposes 
 may appropriate and divert water from its natural bed or 
 channel and condemn the right-of-way for its ditch, canal or 
 
 1 See Stat. 1891, p. 52-60.
 
 § 499, 500] OREGON. <>T1 
 
 flume, and it ma\- also condemn the rights of riparian pro- 
 prietors upon the lake or stream from which such appropria- 
 tion is made upon complying with the terms of the Act; it 
 may also condemn land for reservoir sites for storing water for 
 future use, and for rights-of-way for feeders carrying water to 
 such reser\'oirs, and for ditches carrying the same away, and 
 distributing ditches; and it shall have the right to take from 
 any running stream in the State and store away water not 
 needed for immediate use by any person having a superior 
 right thereto. 
 
 Sec. 3. Such corporation may enter upon any land for the 
 purpose of locating a point of diversion of the water and 
 making the necessary surveys for constructing the ditch or 
 other works . 
 
 Sec. 4. " When a point of diversion shall have been selected 
 such corporation shall post in a conspicuous place thereat a 
 notice in writing containing a statement of the name of the 
 ditch or canal or flume, and of the owner thereof, the point 
 at which its head-gate is proposed to be constructed, a general 
 description of the course of said ditch or canal or flume, the 
 size of the ditch or canal or flume in width and depth, the 
 number of cubic inches of water by miner's measurement 
 under a six inch pressure intended to be appropriated, and 
 the number of reservoirs, if any." 
 
 Sec. 5. provides that within ten days from the date of 
 posting such notice the company must file for record in the 
 ofiice of the County Clerk or Recorder of Conveyances a sim- 
 ilar notice, together with a map showing the general route 
 of said ditch . Within sixty days from the completion of 
 such works the corporation shall in like manner file a map 
 of definite location of said ditch or works by legal subdivi- 
 sions of the land traversed thereby. 
 
 § 500. Coiideniiiation of Land Needed.— Condeninjitiou of 
 Riparian Rights. — Sec. 6 provides whenever any such cor- 
 poration shall have acquired the right to appropriate water it 
 may proceed to condemn land and premises necessary for 
 right-of-way for its ditch or canal or flume, and likewise for 
 its distributing ditches and feeders and sites for reservoirs;
 
 672 OREGON. [§ 500, 501 
 
 but the right-of-way for the main line of the ditch is limited 
 to one hundred feet in width, and for each distributing ditch 
 or feeder thirt}^ feet in width, and for a site for each reser\'-oir 
 twenty acres from one owner or for every ten thousand inches 
 of water, miner's measurement, or fraction thereof over half 
 of the capacity of the main ditch or canal or flume for every 
 twenty miles of its length. 
 
 Sec. 7 provides that if no agreement can be reached be- 
 tween the owner of such lands and the corporation as to the 
 compensation to be paid therefor such corporation may main- 
 tain an action in the Circuit Court for the purpose of having 
 such lands appropriated to its use, and for determining the 
 compensation therefor. 
 
 Sec. 8. " Such corporation may also maintain an action for 
 the condemnation and appropriation of the right to the flow 
 of water in any stream from which it proposes to divert water 
 below the point of diversion vested in the owners of lands 
 lying contiguous to such streams by virtue of their loca- 
 tion." 
 
 Such actions shall be brought in the county where the lands 
 to be affected are situated. " But no person owning lands 
 lying contiguous to any stream shall without his consent be 
 deprived of water for household or domestic use, or for 
 the purpose of watering his stock, or of water necessary to 
 irrigate crops growing upon such lands and actually used 
 therefor. ' ' 
 
 § 501. Completion of Works. — Prior Apinopriatiou. — 
 Right to Change Place of Diversion. — Route to be Fol- 
 lowed. — The Act provides that within six months from the 
 date of posting of notice the actual construction of the works 
 must be commenced and must be prosecuted without inter- 
 mission except as resulting from the act of God, the elements 
 or unavoidable casualties until the same be completed. "And 
 the actual capacity of said ditch or canal or flume, when com- 
 pleted, shall determine the extent of the appropriation, any- 
 thing contained in the notice to the contrary notwithstanding." 
 Upon compliance with the provisions of the Act the right to 
 the use of the water appropriated relates back to the date of 
 posting the notice.
 
 §501,502] OREGON. 673 
 
 Sec. lo provides: "All existing appropriations of water 
 made for beneficial purposes by any person, corporation or 
 company in accordance with the laws of the United States, 
 or of the State of Oregon, or the decisions of its Supreme 
 Court, or the established customs or regulations of the dis- 
 trict in which such appropriation has been made, shall be 
 respected and upheld to the extent of the amount of water 
 actually appropriated; nor shall any existing mill be deprived 
 of its water power, however lawfully acquired, without the 
 consent of its owner; and all controversies respecting rights 
 to water under the provisions of this Act shall be determined 
 by the date of the appropriation as respectively made there- 
 under by the parties." 
 
 Sec. 1 1 provides that the place of diversion may be changed, 
 and rights-of-way may be condemned for that purpose in the 
 same manner as in the case of original construction. 
 
 Sec. 12. The shortest and most direct route practicable, 
 having reference to cost of construction of the works, must 
 be selected. 
 
 § 502. No Tract to be Burdeued witli more than One 
 Ditch if Practicable— Natural Stream may be Used for 
 Ditch. — Section 13 provides: No tract of improved land shall, 
 without the consent of the owner, be subjected to the burden 
 of two or more ditches when the same object can be practi- 
 cally obtained by uniting and conveying all the water neces- 
 sary to be conveyed through such property in one ditch. Any 
 corporation having constructed a ditch, canal or flume, shall 
 allow any other corporation to enlarge any of such works so 
 as not to interfere with the operations of the corporation 
 owning the same, and use such works in common with the 
 corporation owning the same, upon the payment to such cor- 
 poration of a reasonable proportion of the cost of constructing 
 and maintaining such works; such corporations shall also be 
 jointly liable to any person damaged along the line of com- 
 mon user by reason of the faulty construction of such portion 
 of such works, and the one securing the use of the same shall 
 be liable to the owner for all damage by it sustained growing 
 out of the enlargement of said works.
 
 674 OREGON. [§ 502-504 
 
 Any corporation may make use of natural depressions in 
 the earth along tha line thereof to all intents and purposes as 
 parts of its ditch. 
 
 § 503. Damages.— Higiiways.— Eml)aiikments— Bistrib- 
 
 nting Ditches.— Sections 15-19 provide: That every corpora- 
 tion under this Act shall be required to erect and keep in 
 good repair a good and sufficient head-gate; shall be liable 
 lor all damages growing out of want of strength in the banks 
 or walls, or negligence or want of care in the management of 
 the ditch or other works; that it must construct good and 
 substantial bridges over its ditches where they cross a high- 
 way; that the embankments must be carefully kept and 
 maintained, so as to prevent the water from wasting and from 
 flooding or damaging the premises of others, and it shall not 
 divert at any time any water for which it has not actual use 
 or demand. 
 
 Sec. 19 provides: Such corporation may acquire the right 
 of way across lands lying contiguous to its ditch for distrib- 
 uting ditches, but it shall not be compelled so to do, nor to 
 construct distributing ditches upon any lands for the use of 
 the owners thereof. But when any person shall construct a 
 distributing ditch to the line of right-of-way for the ditch or 
 canal and shall tender to such corporation the rates usually 
 charged customers of water along the line of said ditch, for 
 any amount of water said corporation may have in its ditch, 
 or may have the right and ability to appropriate above the 
 amount sold, said corporation shall connect such distributing 
 ditch with its ditch and turn therein the amount of water for 
 which tender is made, and if it shall fail or refuse to do so it 
 shall be liable to such persons for all loss or damage sustained 
 by reason of such failure. 
 
 § 504. Lien.— Ditclies are Real Estate.— Ahandoniiient.— 
 Penalty for Injury to Ditches.— Section 20. "Any corpora- 
 tion acting under the provisions of this Act which shall sup- 
 ply water to any person for irrigation of crops shall have a 
 lien upon all crops raised by the use of such water for the 
 reasonable value of the water supplied, which lien shall be
 
 § 504-506] OREGON. 675 
 
 a continuing one and shall bind said crops after as well as 
 before the same has been gathered, and without record shall 
 be preferred to all other liens or encumbrances whatever upon 
 said crops. Such liens may be enforced by suits in equity. 
 
 Sec. 21 provides: That all ditches or canals or flumes are 
 declared to be real estate, and the same or any interest 
 therein shall be transferred by deed only, duly witnessed 
 and acknowledged. 
 
 Sec. 22 declares that any failure or neglect to use the works 
 of said company for the period of one year shall be deemed 
 an abandonment, "And the water appropriated shall revert 
 to the public and be subject to other appropriations in order 
 of priority. But the question of abandonment shall be one 
 of fact, to be tried and determined as other questions of fact." 
 
 Sec. 23 declares: Any person who shall knowingly and 
 wilfully injure any property of a corporation shall be deemed 
 guilty of a misdemeanor, and upon conviction thereof shall 
 be punished by a fine of not less than ten dollars nor more 
 than three hundred dollars, or by imprisonment in the county 
 jail not less than one month nor more than one year. Also 
 that any person so trespassing shall be liable for all damage 
 caused by his act to the owner of said property. 
 
 § 505. Right of Way over State Lands. — Control of the 
 Legislature. — The Act provides for a right-of-way across any 
 and all lands belonging to the State of Oregon not under the 
 contract of sale. 
 
 Section 26 provides: That "this Act may at any time be 
 amended by the legislative assembly, and commissioners for 
 the management of water-rights and the use of water may be 
 appointed, and rates for the use of water may be fixed by the 
 legislative assembly or by such commissioners; but rates 
 shall not be fixed lower than will allow the net profits of any 
 ditch or canal, or flume, or system thereof, to equal the pre- 
 vailing legal rate of interest on the amount of money actually 
 paid in and employed in the construction and operation of 
 said ditch or canal, or flume, or system thereof." 
 
 § 506. Act of February 22, 1803.— On the 22d of February, 
 1893, there became a law: "An Act to govern the priority of
 
 676 OREGON. [§ 506, 507 
 
 right to waste, spring and seepage waters, defining the rights 
 of owners of springs and seepage waters, authorizing riparian 
 owners to employ wheels, pump?, and other machinery for 
 lifting water, and declaring what uses of water shall have the 
 preference." ^ 
 
 Section i of said Act provides: "That all ditches now con- 
 structed or hereafter to be constructed, for the purpose of 
 utilizing the waste, spring or seepage waters of the State shall 
 be governed by the same laws relating to priority of right 
 as those ditches constructed for the purpose of utilizing the 
 waters of running streams: provided, that the person upon 
 whose lands the seepage or spring waters first arise shall have 
 the right to the use of such waters." 
 
 Sec. 2. Any person owning land bordering upon a stream 
 is given the right to employ machinery for the purpose of 
 raising water to the level required, provided, that the use of 
 such water shall not conflict with the better or prior right of 
 any other person. 
 
 Sec. 3. "When the waters of any natural stream are not 
 sufficient for the service of all those desiring to use the same 
 those using the water for domestic purposes shall, subject 
 to such limitations as maj^ be prescribed by law, have the 
 preference over those claiming such water for any other pur- 
 pose; and those using the water for agricultural purposes 
 shall have the preference over those using the same for 
 manufacturing purposes." 
 
 § 507. Constitutiouality of the Act «f the 18th Februai\v, 
 
 1891. ^ — The Supreme Court of Oregon, in the case of Uma- 
 tilla Irrigation Co. vs. Barnhart,-^ held that this Act author- 
 izing a corporation for certain purposes to condemn rights-of- 
 way, and rights of riparian proprietors upon lakes or streams, 
 declaring the use of such water under the Act must be a 
 public use, and providing the manner in which such corpor- 
 ation may sue for such condemnation, and saving the rights 
 of riparian proprietors in water for household or domestic 
 use or for watering stock, or that may be necessarj^ to irrigate 
 
 1 See Stat. 1893, p. 150. 2 See Ante Sees. 496-504, Stat. Oreg. 1891, 
 52-60. •< (Oreg.) 30 Pac. Rep. 37.
 
 ^ 507] OREGON. 677 
 
 crops growing upon such lands, and actuall}' used therefor, 
 is constitutional law. And Mr. Chief Justice Strahan, in the 
 opinion of the Court, said: "The first section of the Act ex- 
 pressly declares that the use of the waters of this State for the 
 purposes specified in the Act is a public use, and the right to 
 collect rates or compensation for such use of said water is a 
 franchise. The legislature has the sole power to determine 
 when and in what cases the power of eminent domain may be 
 exercised and private propert)^ taken, subject only to two 
 limitations, one is that it cannot be taken for private use; 
 and the other is that compensation must be made before it is 
 taken, unless in case of the State. The legislature having 
 declared the use of water for the purposes named in the Act 
 to be a public use this Court cannot, from anything that 
 appears in this case, say that declaration is not true. * * * 
 It is well known that there are extensive tracts of arid land 
 in eastern Oregon, unproductive and almost worthless without 
 irrigation, which could be made productive by the use of 
 water. The reclamation of this class of lands is the object 
 of the Act in question, and we cannot say that it is a misap- 
 plication of the power of eminent domain to accomplish such 
 results. Doubtless, in some instances, it may be the means of 
 causing riparian owners much inconvenience and expense and 
 even loss; but these are some of the occasional consequences 
 of such laws. But, generally, juries may be trusted in these 
 matters. Their knowledge of such afi"airs will usually enable 
 them to put a proper estimate upon the value of the interest 
 which may be taken under the law and of the damages which 
 the taking inflicts. To take from the farmers along the 
 Umatilla river the water which has made their land so verj'^ 
 productive is almost equivalent to the taking of all the lands 
 affected by the water. We cannot reverse this judgment 
 without overturning the Act of the Legislature under which 
 the proceedings were taken, and we do not see our way clear 
 to do this. The Act is one that effects large property inter- 
 ests, the policy and scope of which may be of doubtful utility; 
 but these are not enough to enable us to overthrow it. Before 
 we could do that it must plainly contravene some provision 
 of the organic law, and we cannot find that it does."
 
 678 OREGON [§ 508 
 
 § 508. lliparian Rights in Oresoii.— Riparian rights are 
 recognized and protected in the State of Oregon subject to 
 the right of eminent domain. The Act of 1891 expressly 
 recognizes in Sec. 8^ the common law riparian rights, but also 
 provides that they may be taken by condemnation proceedings 
 by virtue of the right of eminent domain. 
 
 These rights are sustained also by a long line of authorities 
 of the Supreme Court. In the early case of the Oregon Iron 
 Co. vs. Trullenger^ the Court held that the right to use 
 water necessarily implies a right to dam and detain it. One 
 exercising this right can only detaiyi it. He cannot divert it. 
 
 Also, in the case of Taylor vs. Welch, =^ the Court held that 
 the same rule applies to water which flows in a well-defined 
 and constant stream in a subterranean channel, but not to 
 water percolating through the soil, or even flowing through an 
 unknown and undefined channel. 
 
 In Shively vs. Hume^ the Court sustained the opinion in 
 Taylor vs. Welch, and added: " But it may be added that it 
 need not be shown that a stream of water flows continually, 
 it may at times be dry, but it must have a well-defined and 
 substantial existence." " 
 
 1 sSee ante Sec. 499. Moore vs. Willamette T. & L. 
 
 23 Oregon, 1. Co., 7 Oreg. 355, where the Court 
 
 3 6 Oregon, 199. held that riparian rights extend 
 
 ■4 10 Oreo^on, 76. laterally into the stream, but do 
 
 5 See also Weiss vs. Oregon I. & not extend up and down the 
 
 S. Co., 13 Oregon, 496; 11 Pac. stream. 
 
 Rep. 255; Kaler vs. Campbell, 13 See also Shook vs. Colohan, 12 
 
 Ore. 596; ir Pac. Rep. 301; Mc- Oreg. 239; 6 Pac. Rep. 503. , 
 
 Cann vs. Oreg. Ry. Co., 13 Oreg. 
 
 455; II Pac. Rep. 236.
 
 CHAPTER XXI. 
 Idaho. 
 
 I. SUBJECT TREATED IN GEN- 
 ERAL. 
 Section. — 
 
 509. Particular features of State. 
 
 510. Irrigation in State. 
 
 II. GENERAL STATUTORY ENACT- 
 MENTS. 
 
 511. Water rights in general. 
 
 512. Same. — Prior appropriations. 
 
 — Construction of above 
 statutes. 
 
 Section. — 
 
 513. Right of way for ditches. 
 
 State control of distribution 
 
 for irrigation. 
 Criticism of the laws of 
 Idaho. 
 
 516. Future laws of Idaho. — Con- 
 
 stitutional provisions. 
 
 517. Riparian rights in Idaho. 
 
 514- 
 
 515- 
 
 I. Subject Treated in Oeueral. 
 
 § 501). Particular Features of State.— The topography of 
 Idaho, in its broad features, consists of a great range of 
 mountains extending in a northwesterly and southeasterly di- 
 rection, and sending off spurs toward the west. The rivers 
 which flow from the high mountains of the west on reaching 
 the plains have cut for themselves deep channels, and often 
 disappear into narrow gorges or deep canyons, continuing on 
 their way to the sea at a depth from two himdred to five hun- 
 dred feet or more beneath the general level of the plains. 
 This condition of things offers an obstacle to the complete 
 agricultural development of the State, which can only be 
 overcome by the exercise of great engineering feats. The 
 water supply of Idaho is large, but unfortunately the pecu- 
 liarities of the topography of the State render it impossible to 
 utilize the whole of the water, since a large portion of it is 
 below the general level of agricultural lands. The Great 
 Plains, consisting for the most part of lava, contain in the
 
 680 IDAHO. [§ 509-511 
 
 aggregate man}- hundreds of thousands of acres of land 
 which by the application of water may be rendered wonder- 
 fully productive. 
 
 § 510. Irrigation in State. — From the fact that consider- 
 able capital is required to divert the waters of the principal 
 rivers of the State from their deep channels, the irrigators in 
 the past have been confined almost exclusively to those locali- 
 ties where streams of moderate size flow from the foot hills 
 into the valleys. Here small ditches have been dug running 
 for a few miles along the river as far away from it as the con- 
 tour of the ground will allow. The early settlers usually 
 constructed very small ditches, which increased in size with 
 the population. The methods of agriculture in the State and 
 the practice of irrigation are governed to a certain extent by 
 the distribution of the rainfall. But a great deal of the 
 water throughout the State is already taken up, and water 
 storage is becoming of the utmost importance. Enterprises 
 are being projected for utilizing the waters of the large rivers 
 by bringing them out upon the high plains through which 
 they flow. 
 
 11. Oeneral Statutory Enactments. 
 
 §511. Water Rights in General.— On February lo, i88i, 
 there was approved an Act governing water rights in general, 
 which has been embodied in the revised statutes of Idaho. ^ 
 
 Sees. 3155 to 3167 provide that a right-of-way may be 
 acquired by appropriation for beneficial purposes; that the 
 point of diversion may be changed; that water may be turned 
 into and be conveyed by the natural channels; that as between 
 appropriators the one first in time i's the first in right; that 
 notice of appropriation must be posted in a conspicuous place 
 at the point of intended diversion, and be recorded in the 
 oSice of the Recorder of the county in which it is posted; 
 that within sixty days after posting notice the claimant must 
 commence the construction of the works to divert the water, 
 and " must prosecute the work diligently and uninter- 
 
 1 Rev. Stat. Idaho, 1887, Sec. 3155-3205.
 
 §511,512] IDAHO. 681 
 
 ruptedly to completion, unless temporarily interrupted by 
 snow or rain ; ' ' that by ' ' completion ' ' is meant conducting- 
 the water to place of intended use; that by compliance with 
 the above rules the right to use the water relates back to the 
 time the notice was posted, but a failure to comply with such 
 rules deprives the claimant of the right to the use of the 
 water as against a subsequent claimant who complies there- 
 with, except that " all ditches, canals and other works here- 
 tofore made, constructed or provided, by means of which 
 waters of any stream have been diverted and applied to any 
 beneficial use, muse be taken to have secured the right to the 
 waters claimed, to the extent of the quantity of which said 
 works are capable of conducting and not exceeding the quan- 
 tity claimed, without regard to or compliance with the require- 
 ments of this chapter." 
 
 §512. Same. — Prior Approprijitioii. — Construction of 
 al)0ve Statutes. — It is held by the Supreme Court of Idaho, 
 relative to the provision of the statute, "as between appro- 
 priators, the one first in time is the first in right," that the 
 prior appropriation of all the waters of a stream applied to a 
 useful purpose gives the better right to the tributaries and all 
 direct and immediate sources of supply of the stream; and 
 when this right by appropriation has once vested it must be 
 protected and upheld.^ The Court also construed this section 
 of the statutes in question in the case of Hilman vs. Hard- 
 wick ^ as meaning that one who with his grantors first appro- 
 priated all the waters of a certain stream and has continuall}- 
 used the same to irrigate the lands owned by him is entitled 
 to all of the waters to the extent of his appropriation, neces- 
 sary to the proper irrigation of his lands as against all subse- 
 quent appropriators .-^ 
 
 Upon the question of reasonable diligence it was held in 
 the case of Conant vs. Jones* that appropriators of water for 
 
 1 Malad Valley Irr. Co. vs. Camp- vs. Barrack, (Idaho) 29 Pac. Rep. 
 bell, (Idaho) 18 Pac. Rep. 52. 42; Drake vs. Earhart, (Idaho) 23 
 
 2 (Idaho.) 28 Pac. Rep. 438. Pac. Rep. 541. 
 
 3 See also Kirk vs. Bartholomew , ^ (Idaho.) -^2 Pac. Rep. 250. 
 (Idaho) 29 Pac. Rep. 40; Gearson
 
 682 IDAHO. [§ 512, 513 
 
 irrigation purposes, after completing their works for diversion 
 and conducting the water to the point of intended use, have 
 a reasonable time in which to apply it; that they may add to 
 the acreage of cultivated land from year to year and apply 
 the same as their necessities demand or as their abilities ma3^ 
 permit until they have put to beneficial use all the water to 
 the full extent of their appropriation. 
 
 §513. Ri;2:lit of Way for Bitches. — Sees. 3180 to 3190 
 provide: All persons, companies and corporations owning 
 or claiming any land situated on the bank or in the vicinity 
 of any stream are entitled to the use of waters of such 
 stream for the purpose of irrigating the land so held or claimed 
 to be held. 
 
 Thej' also provide that owners of land are entitled to a 
 right-of-way through the lands of others for their ditches con- 
 structed for the purpose of irrigation. Condemnation pro- 
 ceedings are provided in case the ditch-owners and the land- 
 owners cannot agree upon the compensation to the land- 
 owners for this right of way, that a petition must be presented 
 to the County Commissioners setting up the facts, after which 
 appraisers of the land are to be appointed by the Commis- 
 sioners, who shall hear the proofs in the premises and certify 
 the compensation which in their judgment is just and proper. 
 Such certificate must then be recorded in the oflBce of the 
 County Recorder, and "upon the payment of the compensa- 
 tion and damages, if any, or the tender thereof to the proper 
 parties, or in the absence thereof of such parties from the 
 county then upon deposit of the amount in the county treas- 
 ury to the credit of the said part}', the person, company or cor- 
 poration, petitioners, have the right of entry upon and of way 
 for the proposed ditch, canal or other works." They provide 
 that the ditches must be kept in good repair; that prior rights 
 must not be injured or impaired; that the owners of such 
 ditches must furnish water to customers upon the payment of 
 the usual and customary rates for the use of the water; that 
 no person is entitled under any circumstances to use more 
 water than good husbandry requires for the crop that he
 
 §513-515] IDAHO. 683 
 
 cultivates, and if any person uses an excessive supply of 
 water he is liable for damages sustained thereby. 
 
 § 514. State Control of Distribution for Irrigation. — 
 
 Besides the above law on February 7, 1881, there was 
 approved an Act regulating the distribution of water for the 
 purposes of irrigation.^ 
 
 This Act provides that the inhabitants in any vicinity who 
 use the waters of a certain stream for the purpose of irriga- 
 tion constitute a water district, and a majority of such inhab- 
 itants having such common rights may annually elect a 
 Water Master, whose duty it will be to superintend the dis- 
 tribution of such waters among those having the right to its 
 use. The duties of the Water Master are: He must regulate 
 the distribution of water among the several ditches according 
 to their respective rights and necessities; provided, that vested 
 rights of individuals, companies or corporations to the use 
 and control of water must not be injured or impaired. 
 
 § 515. Criticism of the Laws of Idaho.— The laws in the 
 State of Idaho regarding the control of the waters and the 
 rights of different irrigators depending upon any one stream 
 cannot be called the most satisfactory. They do not appear 
 to guard the rights of individuals. There is general com- 
 plaint that no one can enjoy the general ownership of water 
 sufficient to render his farm productive until his rights have 
 been tested by law suits, often of the most expensive and 
 protracted nature. Idaho has not kept up with the majority 
 of the other States in the arid region in her legislation upon 
 the subject of irrigation. No recent enactment has been 
 made, and there are many points of weakness in the present 
 statutes which react injuriously upon the agricultural inter- 
 ests. The situation is in many localities complicated by the 
 rapid growth of the new and improved systems of irrigation 
 by means of the construction of large ditches; the rights of 
 such later comers to the water being, however, secondary to 
 those of the older ditch owners. And, as is usually the case 
 
 ' See Rev. vStat. 1887, Sees. 3200-3205.
 
 684 IDAHO. [§ 515, 516 
 
 where owners of large canals and owners of small ditches take 
 water from the same source, there is considerable complaint 
 from the farmers. If one owns a small ditch he is in constant 
 fear of being deprived of his share of the water in the river 
 by the larger, better built canals. And on the other hand 
 the farmer who obtains water from the canal companj^ com- 
 plains of the excessive rates charged and of the unsatisfactory 
 manner in which the water is furnished. 
 
 § 516. Future Laws of Idaho. — Constitutional Provi- 
 sions. — It is quite evident that not manj' 3'ears will elapse 
 before the State of Idaho must remodel her laws upon the 
 subject of irrigation, so that the rights of all parties inter- 
 ested in the waters of the State will be better protected than 
 at present. 
 
 Tending toward that end, when the new State Constitution 
 was adopted, Article XV. contained the following: 
 
 "Section 1. The use of all waters now appropriated, or 
 that may hereafter be appropriated, for sale, rental or distri- 
 bution; also of all water originally appropriated for private 
 use, but which after such appropriation has heretofore been, 
 or may hereafter be, sold, rented or distributed, is hereby de- 
 clared to be a public use, and subject to the regulation and 
 control of the State in the manner prescribed by law. 
 
 " Sec. 2. The right to collect rates or compensation for the 
 use of water supplied to any county, city or town or water 
 district, or the inhabitants thereof, is a franchise, and cannot 
 be exercised except b}' authority of and in the manner pre- 
 scribed by law. 
 
 " Sec. 3. The right to divert and appropriate the unappro- 
 priated waters of an}^ natural stream to beneficial uses shall 
 never be denied. Priority of appropriation shall give the 
 better right as between those using the water; but when the 
 waters of any natural stream are not suSicient for the service 
 of all those desiring the use of the same those using the waters 
 for domestic purposes shall (subject to such limitations as 
 maj'' be prescribed b}' law) have the preference over those 
 claiming for an}- other purpose; and those using the water for 
 agricultural purposes shall have preference over those using
 
 § 516] IDAHO. (585 
 
 the same for manufacturing purposes. And in any organized 
 mining districts those using the water for mining purposes, 
 or milling purposes connected with mining, shall have prefer- 
 ence over those using the same for manufacturing or agricul- 
 tural purposes. But the usage by such subsequent appro- 
 priators shall be subject to such provisions of law regulating 
 the taking of private property for public or private use as 
 are referred to in Section 14, of Article I., of this Constitu- 
 tion. 
 
 " Sec. 4. Whenever any water shall have been or shall be 
 appropriated or used for agricultural purposes under a sale, 
 rental or distribution thereof, such sale, rental or distribution 
 shall be deemed an exclusive dedication to such use; and 
 whenever such water so dedicated shall have once been sold, 
 rented or distributed to any person who has settled upon or 
 improved land for agricultural purposes, with the view of re- 
 ceiving the benefit of such water under such dedication, such 
 person, his heirs, executors, administrators, successors or as- 
 signs shall not thereafter without his consent be deprived of 
 the annual use of the same when needed for domestic purposes 
 or to irrigate the land so settled upon or improved upon pay- 
 ment therefor and compliance with such equitable terms and 
 conditions as to the quantity used and the times of use, as 
 may be prescribed by law. 
 
 " Sec. 5. Whenever more than one person has settled upon 
 or improved land with a view to receiving water for agricul- 
 tural purposes under a sale, rental or distribution thereof, as 
 in the last preceding section of this article provided, as among 
 such persons priority in time shall give superiority of right to 
 the use of such water in the numerical order of such settle- 
 ments or improvements; but whenever the supply of such 
 water shall not be sufficient to meet the demands of all those 
 desiring to use the same such priority of right shall be subject 
 to such reasonable limitations as to the quantity of water 
 used and times of use as the Legislature having due regard 
 both to such priority of right and the necessities of those 
 subsequent in time of settlement or improvement may by law 
 prescribe. 
 
 " Sec. 6. The Legislature shall provide by law the manner
 
 686 IDAHO. [j^ 516, 517 
 
 in which reasonable maximum rates may be established to be 
 charged for the use of water sold, rented or distributed for any 
 useful or beneficial purposes." 
 
 § 517. Riparian Rights in Idaho. — The common law 
 riparian rights may be considered, from the foregoing abstract 
 of the statutory laws of the State and the provisions of the 
 Constitution, to be entirely ignored and abolished. The Con- 
 stitution, as we have seen, provides: "The right to divert 
 and appropriate the unappropriated waters of any stream for 
 beneficial purposes shall never be denied."
 
 CHAPTER XXII. 
 Nebraska. 
 
 I. SUBJECT TREATED IN 
 GENERAL. 
 Section. — 
 
 518. Particular features of vState. 
 — Irrigation in State. 
 
 II. GENERAL STATUTORY 
 
 ENACTMENTS. 
 Sectioa. — 
 
 519. Water-rights in general. 
 
 520. Right-of-way for ditches. 
 
 521. Criticism of above law. — Ri- 
 
 parian rights in Nebraska. 
 
 I. Subject Treated in General. 
 § 518. Particular Features of State. — Irrigation in 
 
 «^tate.— The particular features of the State of Nebraska 
 have been practically described under the same subject in 
 our chapter upon the State of Kansas. ^ 
 
 The practical application of the art in Nebraska has had a 
 great impetus in that State since the very dry season of 1890. 
 Within the State there is much excellent land ready for irri- 
 gation, and the water supply is there to serve it, and may be 
 brought upon the land by short and cheap ditches. It will 
 not be many years before the keen logic of profit and loss 
 will drive home the conviction that it is an enormous and 
 inexcusable waste to let the copious volume of the rivers of 
 that State, laden with enriching silt, run away unused to the 
 sea. Although Nebraska is properly classified among the sub- 
 humid States, it is coming each year to be recognized there, 
 as in the State of Kansas, that the practice of irrigation will 
 do away with such years of drought as have been experienced 
 by those two States in the past. 
 
 II. Statutory Enactments. 
 
 §519. Water lliglits in General.— On March 27, 1889, 
 there went into effect a law in Nebraska to provide for water 
 
 1 See :\nte Sec. 425.
 
 t)88 NEBRASKA. [§519 
 
 rights and irrigation, and to regulate the use of water for 
 agricultural and manufacturing purposes, also providing for 
 a right-of-way for ditches.^ 
 
 Section 2032 provides: "The right of the use of running 
 water flowing in a river or stream or down a can^^on or ravine 
 may be acquired by appropriation by any person or persons, 
 company, or corporation, organized under the laws of the State 
 of Nebraska; provided, that in all streams not more than fifty 
 feet in width the rights of riparian proprietors are not affected 
 by the provisions of this Act." 
 
 The Act provides that the appropriation must be for a ben- 
 eficial purpose, and when the appropriator ceases to use it for 
 that purpose the right ceases; no tract of land shall be crossed 
 by more than one ditch without the written consent of the 
 owner if the first ditch can be made to answer the purpose for 
 which the second is desired; that all ditches, canals and lat- 
 erals used for the purpose of irrigation shall be exempt from 
 taxation; the place of diversion may be changed if others are 
 not injured thereby; the water appropriated shall not be 
 turned or permitted to run in the channel of any other river 
 or stream than that from which it is taken; as between appro- 
 priators, the one first in time is first in right; that parties 
 desiring to appropriate water must post a notice in a conspic- 
 uous place at the point of diversion setting up the facts of the 
 diversion, a copy of which notice must be recorded in the 
 ofiice of the County Clerk in the county in which it was 
 posted; within sixty days after the notice is posted the con- 
 struction of the works must be commenced and must be pros- 
 ecuted diligently and uninterruptedly to completion, unless 
 temporarily interrupted by snow or rain; that by completion 
 is meant conducting the water to the place of intended use; 
 that by compliance with these rules the claimant's right to 
 the use of water relates back to the time of posting notice, 
 but a failure to comply with the rules deprives the claimant 
 of a right to the use of the water as against a subsequent party 
 who complies with it. 
 
 1 Consolidated Stat, of Neb. 1S91, Sec. 2032-2061.
 
 § 520, 521] NEBRASKA. 689 
 
 §520. Riglit of Way for Ditches. — Sees. 2047 to 2o5i 
 provide that all parties owning land in the vicinity of any 
 stream are entitled to the use of the waters of such stream 
 for the purpose of irrigating the land, and are also entitled to 
 a right-of-way for the ditch or canal through the lands of 
 others. In case of refusal of the owners of lands to allow the 
 passage of the ditch the parties desiring the right-of-way may 
 present to the County Judge of the county a petition setting 
 up the facts, and praying for the appointment of five apprais- 
 ers to ascertain the compensation to be made to such owners. 
 Upon the filing of the petition the County Judge must give 
 notice of the time and place of the hearing, why said petition 
 should not be granted, and unless good cause be shown by 
 parties adversely interested why the petition should be denied 
 the petition must be granted. The duties of the appraisers 
 are then specifically prescribed and right of appeal is granted 
 from their judgment to the District Court of the County. 
 
 Sec. 2055 declares that canals constructed for irrigating or 
 water power purposes are declared to be works of internal 
 improvement and all laws applicable to works of internal 
 improvement are declared to be applicable to such canals. 
 The right to the use of water from ditches constructed for the 
 purpose of selling the water thereof for irrigating purposes 
 is prescribed as follows: 
 
 "First. All persons through whose lands such ditch or 
 canal runs are entitled to the use of the waters thereof in the 
 order of their location along the line of said ditch or canal. 
 
 "Second. After those through whose lands the ditch or 
 canal runs those upon either side of the line of the ditch or 
 canal are entitled to the use of the waters thereof; those 
 equally distant from the line of said ditch or canal are entitled 
 to priority in the order of their location along the line of said 
 ditch or canal; provided, that in times of scarcity of water the 
 same shall be equally distributed to the consumers thereof." 
 
 § 521. Crltiejsiii of Above Liw.— llipiriiiTi Ul^hts in 
 Nebraska.— It will be quite apparent from a study of the law, 
 of which the above is an abstract, that Nebraska is one of the 
 States of the semi-arid region that has not kept in line
 
 690 NEBRASKA. [§ 521 
 
 with her sister States regarding her law upon the subject of 
 irrigation. No measure of public policy is more important to 
 that State than an enactment of a code of irrigation laws 
 which shall provide a certain, cheap, speedy and equitable 
 method of settling disputed water-rights. 
 
 Nebraska is one of the States wherein the common law 
 riparian rights are expressly recognized by the statutes, the 
 provision in Sec. 2032 of the statutes, " That in all streams 
 not more than fifty feet in width the rights of the riparian 
 proprietors are not effected by this Act," is a great obstruc- 
 tion placed in the way of those desiring to appropriate the 
 water of the natural streams for the purpose of irrigation, as 
 one riparian proprietor can prevent the appropriation from 
 any stream not more than fifty feet in width. It is the ex- 
 perience of all irrigating countries that it is the waters of the 
 smaller streams that are most used for this purpose, from the 
 fact that they are the more easily diverted and conducted 
 upon the land.
 
 CHAPTER XXIII. 
 Texas. 
 
 I. SUBJECT TREATED IN | Section.— 
 
 ' S24. Corporations. — Powers of. 
 GENERAL. o , r ^ t. h.- 
 
 Section.— 525- Sale of water. — Penalties. 
 
 522. Particular features.— Irriga- 526. Lien upon crops. 
 
 tion in State. I 52?- Court Decisions upholding 
 
 the right of irrigation. 
 
 II. GENERAL STATUTORY „ • X ^ ^- c u 
 
 528. .bame.-Construction or above 
 
 ENACTMENTS. statutes. 
 
 523. Irrigation laws. 529- Riparian rights in Texas. 
 
 I. Subject Treated iu General. 
 
 §522. Particular Features. — Irrigation in State.— 
 
 Strictly speaking, the western part of Texas is included 
 within the arid region, but since the greater portion of that 
 State is sub-humid the State may be properly placed in that 
 class. In some portions of Texas irrigation is indispensable, 
 while in others it is found to be a very useful adjunct to the 
 rainfall for the culture of crops of all kinds, including that of 
 cotton. The soil in general is fertile and the water easily 
 accessible. The art of irrigation being absolutely essential 
 in the arid portion of the State is more fully appreciated 
 there. But in the semi-humid region of Central Texas, where 
 the land has considerable value without irrigation, the value 
 of the water of the natural streams, while none the less great, 
 is not so fully appreciated, although irrigation would double 
 the already munificent productiveness of the soil. 
 
 II. Statutory Enactments. 
 
 §523. lrrii?ation Laws.— Texas as a State, with New 
 Mexico and Arizona as Territories, come under the affirm- 
 ative declaration of Spanish and Mexican laws, which were in 
 force before those jurisdictions passed under the control of
 
 692 TEXAS. [§ 523 
 
 the United States. But those laws have been supplemented 
 by recent statutory legislation. In 1889 the Legislature of 
 Texas passed "An Act to encourage irrigation and to provide 
 for the acquisition of the right to the use of the water for the 
 construction and maintenance of canals, ditches, flumes, 
 reservoirs and wells for irrigation, and for mining, milling 
 and stock raising in the arid districts of Texas. "^ 
 
 Section i of the said Act provides: " That the unappropri- 
 ated waters of every river or natural stream within the arid 
 portion of the State of Texas in which, by reason of the insuf- 
 ficient rainfall, irrigatio7i is necessary for agricultural pur- 
 poses, may be diverted from its natural channel for irrigation, 
 domestic and other beneficial uses; provided, that said water 
 shall not be diverted so as to deprive any person who claims, 
 owns or holds a possessory right or title to any land lying 
 along the banks or margin of any river or natural stream of 
 the use of water thereof for his own domestic use." 
 
 "Sec. 2. That the unappropriated waters of ever}' river or 
 natural stream Tvitlmi the arid portions of the State, as de- 
 scribed in the preceding section of this Act, are hereby 
 declared to be the property of the public, and may be acquired 
 by appropriation for the uses and purposes hereinafter pro- 
 vided." The Act provides that the appropriation must be 
 made for the purposes named in this Act, and when the appro- 
 priator ceases to use it for such purpose the right ceases. 
 
 " Sec. 4. As between appropriators, the first in time is the 
 one first in right to such quantity of the water only as is 
 reasonably sufficient and necessary to irrigate the land sus- 
 ceptible of irrigation on either side of the ditch or canal." 
 
 Sec. 5, as amended in 1893, provides that within ninety 
 days after the commencement a sworn statement containing 
 all particulars of the appropriation must be filed with the 
 County Clerk, together with a map .showing the route of 
 said ditch or canal. ^ 
 
 Sees. 6 and 7 provide that work must be begun within 
 ninety days after filing of statement and must be prosecuted 
 diligently and continuously to completion, which is defined 
 
 1 .See Stat. 1889. p. 100. 2 See Stat. 189:,, p. 47.
 
 § 523-526J TEXAS. 693 
 
 to be the " conducting of the water in the main canal to the 
 place of intended use." 
 
 Sec. 8 provides that by compliance with the preceding rule 
 the claimant's right to the use of water relates back to the 
 time when the work of construction was commenced. 
 
 § 521. Corporations.— Powers of.— Sec. lo. Corporations 
 may be formed under the provisions of the Act for the pur- 
 pose of constructing and maintaining ditches and other works 
 necessary, and furnishing water to all persons entitled to the 
 same for irrigation and domestic purposes. All persons own- 
 ing land contiguous to any such ditch, and who shall have 
 secured a right to the water in the same, shall be entitled to 
 be supplied with water from such ditch for the purpose of 
 irrigation of such land and domestic uses. 
 
 Sec. II. All corporations formed for the purpose of irriga- 
 tion as provided in the Act are granted a right of way not to 
 exceed loo feet in width over all lands of the State. Also, 
 any such corporation may obtain the right over private lands 
 by condemnation proceedings, as in the case of the same pro- 
 ceedings by railroads. 
 
 §525. Sale of Water.— Penalties.— Sec ; 12. All surplus 
 water not used or disposed of as provided for in the preceding 
 sections of this Act shall be conducted back to the stream 
 from which it was taken. The section also provides for the 
 measurement of water by inches, feet or fractional portion of 
 the whole supply, or distribution by the hour or acre system. 
 
 Sec. 14. " Any person who shall wilfully or through gross 
 negligence injure any irrigating canal or its appurtenance, 
 wells or reservoirs, or who shall waste the waters thereof, or 
 shall take the water therefrom without authority, shall be 
 deemed guilty of a misdemeanor, and for each offense shall be 
 liable for a fine not exceeding five hundred dollars." 
 
 § 52(>. Lien Upon Crops. — A supplementary section to the 
 above Act was also added in 1893.^ The section provides: 
 *' Every person, corporation or association of persons which 
 
 1 See Stat. 1893, p. 47, Sec. 2.
 
 694 TEXAS. [§ 526-528 
 
 has heretofore constructed or which may hereafter construct 
 an^^ ditch, canal or reservoir for the purpose of irrigation and 
 who shall lease or rent the water from said ditch, canal or 
 reservoir to any person, persons or association of persons or 
 corporation owning any lands subject to irrigation from such 
 ditch, canal or reservoir such person, corporation or associa- 
 tion of persons owning such ditch, canal or reservoir shall 
 have a preference lien, upon the crop or crops raised upon the 
 land thus irrigated under such lease or contract." 
 
 § 527. (Jourt Decisions Lpliokling the Ki!?ht of Irrigation. 
 
 The Supreme Court of the State of Texas has long recognized 
 the right of appropriation for irrigation purposes. In the case 
 of Tolle vs. Correth,^ decided in i868, the Supreme Court 
 even then recognized this right, and Mr. Chief Justice Mor- 
 rell in rendering this opinion said: "We historically know 
 that the lands in the western portion of the State are com- 
 paratively, in some seasons, useless unless the}' are irrigated. 
 * * * The authorities cited from the distinguished Courts 
 of New York, Massachusetts and England are founded on the 
 principle or maxim, ' The water runs, let it run.' ' Every 
 one has the right to have the advantage of a flow of water in 
 his land without diminution or alteration.' A moment's 
 reflection will enable any one to see the propriety of these 
 maxims, where water is useful only in its flow, and is sub- 
 servient to mechanical or manufacturing purposes. But in a 
 country or State where water is useful for agricultural pur- 
 poses, and where the sovereign power grants for a nominal 
 consideration water for the purpose of irrigation these max- 
 ims do not apply; instead thereof we must substitute, ' Water 
 irrigates, and let it irrigate.' " - 
 
 §528. Same. — Construction of Above Statute. — In the 
 
 very recent case of McGhee Irrigating Ditch Co. vs. Hudson ^ 
 the above quoted statute was attacked as to its validity on the 
 
 1 31 Texas, 362. 310; Baker vs. Brown, 55 Texas, 
 
 2 See also upon subject case of 57. 
 
 i-lemingvs. Davis, 37 Texas, 173; >< Texas, 21 S. W. Rep. 175. 
 
 Rhodes vs. Whitehead, 27 Texas,
 
 § 528, 'j29] TEXAS. 695 
 
 ground of uncertainty. But the Supreme Court, in uphold- 
 ing the validity of the statute, said: " We think the la^^ 
 should stand as sufficiently definite and certain because the 
 arid portion of the State to which the Act shall apply is 
 indicated and defined by the first and second sections of the 
 law.i * * * ^g think the benefits of this Act are 
 limited to that arid portion of the State where rainfall is 
 insufficient and irrigation is necessary for agricultural pur- 
 poses; and a party seeking its benefits must show this condition 
 of things." 
 
 § 529. Riparian Rights in Texas.— Riparian rights are 
 recognized and protected in the State of Texas. The middle 
 of a fresh water stream is the common boundary of the land 
 owners on opposite sides. Although appropriation of water 
 for the purpose of irrigation is permitted under certain cir- 
 cumstances it is not allowed when rights of riparian proprie- 
 tors are injuriously affected thereby .^ 
 
 1 See ante Section 523. 304; Baker vs. Brown, 55 Texas, 
 
 2Mullervs. Land, 3iTexas, 271; 377; Fulton vs. Frandolig, 63 
 Rhodes vs. Whitehead, 27 Texas, Texas, 330.
 
 CHAPTER XXIV. 
 
 Arizona. 
 
 I. SUBJECT TREATED IN 
 GENERAL. 
 Section.— 
 
 530. Particular features of Terri- 
 
 tory. 
 
 531. Irrigation in Territory. 
 II. GENERAL STATUTORY 
 
 ENACTMENTS. 
 
 532. Water- rights in general. 
 
 Section. — 
 
 533. Irrigating canals and ace 
 
 quias. 
 
 534. Construction of canals and 
 
 acequias. 
 
 535. Overseers of acequias. 
 
 536. Riparian rights in Atizona. 
 
 I. Subject Treated in General. 
 
 § 530. Particular Features of Territory.— Arizona, the 
 oldest irrigated region within the limits of the United States, 
 where ancient and ruined systems of irrigating canals and 
 reservoirs still serve as models for modern works, is to-day 
 very much interested in the subject of irrigation. The agri- 
 cultural and irrigable land is situated in the southwestern 
 half of the Territory. We find through Arizona, from foot- 
 hills to mountains, an annual average precipitation of from 
 twelve to twenty-five inches of rainfall, and on the plains and 
 mesas of the western and southern part the very low average 
 of from three to twelve inches. Hence it follows for the 
 greater part of the Territory irrigation is practiced as an ab- 
 solute necessity to successful farming. In the lower plains 
 the temperature is such that crops will grow and mature at 
 any season of the year, provided there is a sufficient supply of 
 moisture. Consequently in various portions of the Territory 
 irrigation is kept up the entire year.
 
 § 531, 532] ARIZONA. 697 
 
 § 531. Irrigjitiou in Territor.v.— The acreage at present 
 under irrigation in Arizona may be regarded as approaching 
 the maximum possible with the present supply of water and 
 the methods of using it. All the available water in the 
 natural streams and lakes has been^utilized, and any extended 
 area can be brought under cultivation only by greater 
 economy in using the existing supply, or by the adoption of 
 systems of storage for the conservation of the flood water 
 now annually running to waste. There are a great many 
 storage reservoir sites in this Territory, and irrigators are 
 looking forward to this method as the most effectual means of 
 obtaining relief from the troubles and uncertainties at present 
 existing. 
 
 In most cases water is now applied by flooding, after the 
 custom established by the Mexicans. This method is at best 
 an exceedingly wasteful one where there is such a scanty sup- 
 ply of water; and it has been demonstrated in many cases 
 where too much water is used that better crops could be 
 matured by using the water more sparingly, which would also 
 have the effect of increasing the area under cultivation. 
 
 II. Statutory Eiiactiueiits. 
 
 §532. Water - Rights in General.— Arizona and New 
 Mexico may be considered as constituting a sort of a group 
 somewhat separate and distinct from the other commonwealths 
 of the arid region as regards the laws regulating water- 
 rights. The legislation of the two Territories is somewhat 
 similar, and follows the old Spanish and Mexican laws upon 
 the subject. The fundamental rule by which the waters of 
 streams are governed is to be found in the Territorial Bill 
 of Rights, and is as follows: "All streams, lakes and ponds of 
 water capable of being used for the purposes of navigation 
 or irrigation are hereby declared to be public property; and no 
 individual or corporation shall have the right to appropriate 
 them exclusively to their ov^'n private use except under such 
 equitable regulations and restrictions as the Legislature sHall 
 provide for that purpose." ' 
 
 1 Rev. vStat. Arizona, Sec. 2863.
 
 698 ARIZONA. [§ 533, 534 
 
 § 533. Irrigating Canals and Acequias.^ — The revised 
 statutes of Arizona contain the following upon the subject of 
 irrigating canals: 
 
 Section 3199 provides: " All rivers, creeks and streams ot 
 running water in the Terrftory of Arizona are hereby declared 
 public, and applicable to the purposes of irrigating and min- 
 ing as hereinafter provided." 
 
 " Sec. 3201. All the inhabitants of this Territory who own 
 or possess arable and irrigable lands shall have the right to 
 construct public or private acequias and obtain the necessarj'^ 
 water for the same from any convenient river, creek or stream 
 of running water." 
 
 All owners of acequias may have the right if necessary to 
 run the same through the lands of private individuals, and 
 the damages resulting to such individuals, on application of 
 the party interested, shall be assessed by the Probate Judge 
 of the proper county in a summary manner. 
 
 Sec. 3203 declares that no one may obstruct the irrigation 
 of any lands or fields, except by erecting mills and machinery 
 for raining purposes or for reduction of metals, as the right to 
 irrigate the fields and arable lands shall be preferable to all 
 others. 
 
 Sec. 3204. Where reduction w^orks or other mining appara- 
 tus shall be placed upon lands previously held for agricul- 
 tural purposes the person or persons so holding such lands 
 shall be entitled to remuneration for the damages caused 
 thereby . 
 
 Sec. 3205 provides that when any ditch or acequia shall 
 be taken out for agricultural purposes the party so taking out 
 such ditch shall have the exclusive right to the water, or so 
 much thereof as shall be necessary for his purpose, and if at any 
 time the water so required shall be taken for mining operations 
 the person owning such water shall be entitled to damages. 
 
 § 534. Construction of Canals and Acequias. — Sees. 3207 
 to 3210 provide that all owners and proprietors of arable land 
 bordering upon or irrigable by any public acequia shall labor 
 
 1 See Rev. Stat. Arizona, .Sees. 3199-3226.
 
 § 534, 535] ARIZONA. <59y 
 
 on such public acequia, whether such owners or proprietors 
 cultivate the land or not. Then follow provisions that all 
 persons interested in the public acequias, whether owners or 
 lessees of land, shall labor thereon in proportion to the amount 
 of land owned or held by them. 
 
 Sec. 3210 provides: " That in case a community or people 
 desire to construct an acequia in any part of this Territory 
 and the persons desiring to construct the same are the owners 
 or the proprietors of the land upon which they design con- 
 structing said acequia, no one shall be bound to pay damages 
 for such land, as all persons interested in the construction of 
 said acequia are to be benefited thereby." 
 
 §535. Orei-seei-s of Acequias.— It is provided that it shall 
 be the duty of the several Justices of the Peace in the Terri- 
 tory to call together in their respective precincts all the owners 
 and proprietors of land irrigated by any public acequia, for 
 the purpose of electing one or more overseers of said acequia 
 for the year. The manner of conducting such election and 
 the number of overseers shall be regulated by the Justices of 
 the Peace of their respective precincts, and the only persons 
 entitled to vote at such elections are the owners and proprie- 
 tors of land irrigated by the acequia. 
 
 Sec. 3214. It is the duty of the overseers to superintend the 
 opening and repairs of the acequias; to apportion the number 
 of laborers to be furnished by the owners of lands; to regu- 
 late them according to the quantity of land to be irrigated by 
 each one from the acequia; to distribute and apportion the 
 water; and in making such apportionment he shall take into 
 consideration the nature of the seed sown or planted; and to 
 conduct and carry on such distribution with justice and im- 
 partiality. During the years of .scarcity of water owners of 
 fields shall have preference of the water for irrigation accor- 
 ding to the dates of their respective occupation of the land, 
 either by themselves or their grantors. Then follows provi- 
 sions that it shall be the duty of owners of lands to furnish 
 laborers as required by the overseer; for the removal and 
 punishment of the overseer in case of wilfully neglecting or 
 refusing to fulfill the duties of his office, or for malfeasance
 
 700 ARIZONA. [§535,536 
 
 in office. Fines are prescribed for the refusal of land owners 
 to furnish the number of laborers required; for the interfer- 
 ence with the acequia or works without the consent of the 
 overseer; all of which fines and forfeiture shall be for the 
 benefit of the public acequia. ^ 
 
 §536. Riparian Rights in Arizona. — The doctrine of 
 riparian rights as recognized by the common law is entirely 
 abolished by statute, which provides: "The common law 
 doctrine of riparian rights shall not obtain or be of any force 
 or effect in this Territory." 
 
 1 See the case of Dyke vs. Cald- Clifford vs. Larrieii, Ariz, ii Pac. 
 well, .Ariz. i8 Pac. Rep. 276; also Rep. 397.
 
 CHAPTER XXV. 
 New Mexico. 
 
 I. SUBJECT TREATED IN 
 
 GENERAL. 
 Section.— 
 
 537. Particular features of Terri- 
 
 tory. 
 
 538. Irrigation in Territory. 
 
 II. GENERAL STATUTORY 
 
 ENACTMENTS. 
 
 539. General provisions. — Public 
 
 acequias. 
 
 540. Construction. — Con d e m n a- 
 
 tion of lauds. — Private ace- 
 quias. 
 
 Section. — 
 
 541. Officers. — Elections. — Duties 
 
 of officers. 
 
 542. Labor. — Management of. 
 
 543. Corporations. 
 
 544. Powers of irrigation corpora- 
 
 tions. 
 
 545. Same. — Condemnation pro- 
 
 ceedings. 
 
 546. Establishment of water- 
 
 rights. 
 
 547. Exemption from taxation. — 
 
 Riparian rights. 
 
 I. Subject Treated in (General. 
 
 § 537. Particular Features of Territory. — The Territory 
 of New Mexico can be divided into three great geographical 
 divisions. On the eastern portion are the broad plains which 
 are a continuation of the staked plains of Texas. These 
 plains, extending nearly one-third across the Territory, 
 gradually rise to form the plateau which is the base of the 
 Rocky Mountains. On the western side of the mountain 
 ranges is the long narrow valley of the Rio Grande, which 
 traverses the Territory from north to south, being confined 
 for a great portion of its way by lofty mountain ranges. In 
 the central and southern parts of the Territory are elevated 
 table lands, arid in the extreme, which are useless even for 
 grazing, although their soil could be rendered extremely pro- 
 ductive by the application of water. Taking the Territory 
 as a whole the water supply is comparatively well distributed, 
 nearly all the counties of the Territory having their small
 
 702 NEW MEXICO. [§ 537-539 
 
 rivers, and some of them large ones. Unfortunately, how- 
 ever, much of the water is far below the level of some of the 
 best arable land 
 
 §538. Irrii^ation in the Territory. — The Rio Grande 
 Valley has from the earliest times been the home of agricul- 
 ture and irrigation. The original Indian inhabitants, and 
 subsequently the Spanish invaders, took water from the river 
 and its tributaries not only in very much the same manner as 
 that now prevailing, but even to some extent by the same 
 ditches. Each town or group of farmers has its own ditch. 
 Owing to lack of system there is great loss of water, which 
 might often be avoided by a single well built canal in lieu of 
 many temporary poorly constructed ditches. As in the case 
 of Arizona, it ma}^ be said that in New Mexico also nearly 
 all the water that can be taken out upon the arable land by 
 the efforts of individuals or of farmers acting in partnership 
 has now been appropriated, and further agricultural growth 
 can only be developed by greater economy in the use of water 
 and by the conservation of the flood waters. 
 
 II. Statutory Enactments. 
 
 § 531). General Provisions.— Public Acequias.— The irri- 
 gation laws of New Mexico, as well as those of Arizona, are 
 based upon the Spanish and Mexican laws governing that 
 subject. In Chapter i, Title i, of the compiled laws of New 
 Mexico are statutor}' provisions which upon examination will 
 be found to differ considerably from the laws of the other 
 States and Territories upon the subject. The following is 
 the substance of that chapter:^ 
 
 Section i provides: " No inhabitant of this Territory shall 
 have the right to construct any building to the impediment of 
 irrigation of lands or fields, such as mills or any other prop- 
 erty that may obstruct the course of the water; as irrigation 
 of the fields should be preferable to all others." 
 
 Provisions are made for the construction of public ditches 
 or acequias in any part of the Territory; rights of way are 
 
 1 Compiled Laws of New Mexico, Sees. 1-53.
 
 § 539, 540] NEW MEXICO. 703 
 
 given for the same, and it is provided that no one shall be 
 bound to pay for such land if the constructors are the owners 
 of all the land through which it passes, as all the persons in- 
 terested in the construction of the ditch are to be benefited 
 by it. 
 
 " Sec. 6. All rivers and streams of water in this Territory, 
 formerly known as public ditches or acequias, are hereby 
 established and declared to be public ditches or acequias." 
 
 Provisions are made for the several Justices of the Peace of 
 the Territory to call together in their respective precincts all 
 the owners of ditches or acequias and the proprietors of lands 
 irrigated by the same for the purpose of electing one or more 
 overseers for said ditches or acequias for the same year. All 
 fines and forfeitures are to be applied by the overseer to im- 
 provements upon any public ditch or acequias. Penalties for 
 injury to acequias and to persons are prescribed. All ace- 
 quias, public or private, shall be the property of the persons 
 who may have completed the same, and no person who may 
 desire to use the waters of said acequia shall be allowed to 
 do so without the consent of the majority of tlje owners 
 thereof, and upon payment of a .share proportionate to its 
 primary cost. 
 
 §540. Construction. — Condemnation of Lands. — Private 
 Aceiiuias. — " Sec. 17. All inhabitants of the Territory of 
 New Mexico shall have the right to construct either private 
 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 lands said acequias have to pass 
 a just compensation taxed for the land used." 
 
 It is the duty of the Probate Judge to appoint three skill- 
 ful men of well known honesty to make an appraisement of 
 such lands and fix the compensation for the same; which, 
 once done, shall be executed without appeal. 
 
 Sec. 19 provides: When any public ditch shall be destroyed 
 by rain or in any other manner, and it shall be impossible to 
 reconstruct it where it ran before, the " Majordomo " of such 
 ditch, with the consent of a majority of the common laborers 
 of the same, may cut through the lands of any person by
 
 704 NEW MEXICO. [§540,541 
 
 first obtaining their consent, "by the CDinraunity of such 
 ditch offering to pay a compensation to be agreed upon 
 between the owners of the land through which the ditch is to 
 be opened and the parties interested in the said ditch." In 
 case the owner does not agree to accept the compensation 
 offered appraisers must be appointed by the Justice of the 
 Peace, who must appraise the land, ascertain whether or not 
 the ditch for which a new channel is solicited is entirely 
 destroyed; and if in their opinion the injury done to their 
 ditch may be repaired they will so report to the Justice of 
 the Peace, and in such case the land solicited for the purpose 
 of opening the ditch shall in no manner be touched ; but if 
 they should be of the opinion that a part of the ditch is irre- 
 parably destroyed they will examine and appraise the land 
 over which the new ditch should be opened, and the place 
 where the ditch should properly run. 
 
 §541. OHicers.— Elections.— Duties of Officers.— In each 
 precinct of the Territory, where public necessity requires, an 
 election shall be held annually for the respective directors of 
 acequias. 
 
 Sec. 26. It is the duty of the overseers to superintend the 
 repairs and excavations on the acequias; to apportion the 
 persons or number of laborers furnished by the proprietors; to 
 regulate them according to the quantity of land to be irrigated 
 from theacequia; and to distribute the portion of water among 
 the parties entitled. Provisions are made for penalties in 
 case overseers should neglect their duties, and for the election 
 of others. 
 
 Sec. 30. In case of acequias of extended irrigation, and 
 where the lands irrigated are unequal, and some persons have 
 at once several sections and parts in other sections, there shall 
 be elected as directors of such acequias a chief Majordomo or 
 overseer, an assistant and three acequia commissioners; the 
 duties of the said commissioners shall be to regulate the num- 
 ber of laborers to the respective acequias for which they have 
 been elected, that shall be performed by each owner of lands 
 irrigated by the same. The equalization list when com-
 
 § 541-543J NEW MEXICO. 705 
 
 pleted must be recorded in the office of the Justice of the 
 Peace of the precinct. 
 
 §542. Labor. — Maiiageiueiit Of. — "Sec. 35. All persons 
 interested in a common ditch or acequia, be they owners or 
 lessees, shall labor thereon in proportion to their land." 
 
 " Sec. 36. All owners of tillable land shall labor on public 
 ditches or acequias, whether they cultivate the land or not." 
 
 " Sec. 37. It shall be the duty of proprietors to furnish, 
 each one, the number of laborers required by the overseer at 
 the time and place he may designate, for the purposes men- 
 tioned in the foregoing section, and for the time he may deem 
 necessary." 
 
 Penalties are then provided for failure to furnish such 
 laborers; for the obstruction of. or interference with, any of 
 said acequias. 
 
 Sec. 40. It is the duty of all overseers of acequias to see 
 that the water currents run so that no injury may result to the 
 proprietors of land. Provisions are made for action in case of 
 threatened danger of injury; that any persons being tillers of 
 the irrigated land who shall have commenced the work on any 
 public acequia in common labor are obliged to continue on 
 that work until the completion of the clearing of said acequia; 
 and in case of abandonment before the work is completed they 
 shall pay for each such offense a fine of not less than $5.00 
 nor exceeding $10.00. 
 
 Title I., Chapter II., provides that all sources of water are 
 declared to be free in order that all persons traveling in the 
 Territory may take water therefrom for their own use and that 
 of the animals under their charge. Penalties are provided 
 for the hindering or molesting any person at the time they 
 may wish to take water for the purposes described, and for the 
 fouling of water. 
 
 §543. Corporations. — Title V., Chapter I., Compiled Laws 
 of New Mexico, 1884, provide for the organization and powers 
 of corporations for general purposes, and among them the 
 organization of irrigation corporations.' 
 
 1 Compiled Laws of New Mexico, 1882, ^ 192-231.
 
 V06 NEW MEXICO. [§543,544 
 
 Also, in 1887, the Legislature of the Territory passed " An 
 Act to authorize the formation of companies for the purpose 
 of constructing irrigating and other canals and the coloniza- 
 tion and improvement of lands." ^ 
 
 Sections i to 18 of said Act provide for the organization of 
 such corporations; what the articles of incorporation must 
 show; and the powers of such corporations are specified as 
 follows: They shall have the power to sue and be sued in any 
 Court; to adopt and use a common seal; to purchase, acquire, 
 hold, sell, mortgage and convey such real and personal prop- 
 erty as such corporation may require to successfully carry on 
 and transact the object for which it was formed. Tiiese sec- 
 tions also provide for the election of Boards of Directors and 
 their duties; assessments and collection of the same from the 
 stockholders; the payment of debts and the dividends to be 
 declared; and if any corporation formed under this Act shall 
 not organize and commence the transaction of its business 
 within one year from the time of filing its articles its corporate 
 powers shall cease. 
 
 Sees. 14 to 15 provide for disincorporation and settling up 
 the affairs of the business. 
 
 § 54t. Powers of Irrii^ation Corimrations. — Sees. 16 to 
 18 provide that corporations formed under the Act shall have 
 the power to borrow such sums of money as may be necessary 
 for the construction or operation of their ditches and canals 
 and other works, or for thepurchaseof any lands, water rights 
 or other property necessary in order to carry out its objects; 
 and to issue and dispose of their bonds for anj^ amount so bor- 
 rowed, and to mortgage their corporate property for the pay- 
 ment of any debt. 
 
 Sec. 17 provides that such corporations shall have, in addi- 
 tion to the powers enumerated above, rights as follows: 
 
 " I. To cause such examinations and surveys for the pro- 
 posed reservoirs, canals, pipe lines and ditches to be made as 
 may be necessary to the selection of the most eligible loca- 
 tions and most advantageous routes, and for such purpose by 
 
 1 Stat. 18S7, p. 29.
 
 § 544, 545] NEW MEXICO. 707 
 
 their officers, agents or servants to enter upon the lands or 
 water of any person of this Territory. 
 
 "2. To take and hold such voluntary grant of real estate 
 and other property as shall be made to them in furtherance of 
 the purposes of said corporation. 
 
 "3. To construct their canals, pipe lines or ditches upon or 
 along any stream of water. 
 
 "4. To take and divert from any stream, lake or spring 
 the surplus water, for the purpose of supplying the same to 
 persons, to be used for the objects of Section i of this Act, 
 but sucli corporations shall have no right to interfere with the 
 rights, or appropriate the property, of any one, except upon 
 payment of the assessed value thereof, to be ascertained as in 
 this Act provided; and provided further, that no water shall 
 be diverted if it will interfere with the reasonable require- 
 ments of any person or persons using or requiring the same 
 when so diverted. 
 
 "5. To furnish water for the purpose mentioned in Section 
 I at such rates as the by-laws may prescribe; but equal rates 
 shall be conceded to each class of consumers. 
 
 " 6. To enter upon and condemn and appropriate any lands, 
 timber, stone, gravel or other material that may be necessary 
 for the uses and purposes of such company." 
 
 § 545. Same. — Condemnjition Proceedings. — Sec. 18 pro- 
 vides that should any such corporation be unable to agree 
 with the owners as to such compensation to be paid for any 
 such land, water, timber, stone, gravel or other materials the 
 District Court shall, upon the application of either party upon 
 five days' notice, appoint three disinterested commissioners 
 who shall appraise the property at what would be a fair value 
 thereof, and make a return into Court of such appraisement. 
 Upon tliis return, and upon the payment to the clerk of the 
 Court the amount so assessed by such commissioners, the 
 property shall be deemed to be taken by such corporation, 
 which shall thereby acquire full title to the same. Either 
 party feeling aggrieved by the assessment made by the com- 
 missioners may appeal therefrom to the District Court, but 
 such appeal shall not interfere with tlie right of such corpora-
 
 708 NEW MEXICO. [§ 545, 546 
 
 tion to take possession of such property if it shall have paid 
 into Court the compensation assessed. Specific rules are then 
 laid down for perfecting the appeal and trial of the case, and 
 the section closes as follows: " The damages awarded to such 
 owner or owners shall be paid into Court for their use and 
 benefit, and shall be paid over to such owner or owners or to 
 his legal representatives or assigns on demand. Said Court 
 shall also be open for the transaction of the business provided 
 for in this section and shall transact the same with all reason- 
 able dispatch." 
 
 Sec. 25 provides that no corporation shall have the right to 
 divert the usual and natural flow of water of an}- stream 
 which by law has been declared a public acequia for any use 
 whatsoever between the 15th day of February and the 15th 
 day of October of each year, unless it shall be by the unani- 
 mous consent of all persons holding agricultural lands under 
 such stream or public acequia to be irrigated by the water 
 furnished by said stream or public acequia; and that no incor- 
 poration of any company shall interfere with the water rights 
 of an)' individual or company acquired prior to the passage of 
 the Act. 
 
 § 54G. £sta)»nshiiient of Water Kiuhts. — On February 
 26, 1891 , there was approved "An Act to provide a method for 
 establishing the rights of appropriation of water for ditches, 
 canals or feeders of reservoirs, and requiring registration .of 
 all such hereafter made, changed or enlarged." ' 
 
 Section i provides: " That every person, association or 
 corporation hereafter constructing or enlarging any ditch, 
 canal or any feeder for any reservoir and taking water from 
 an\' natural stream, shall within ninety days after the con- 
 struction, change or enlargement, file and cause to be recorded 
 in the office of the probate clerk of the county in which such 
 ditch, canal or feeder be situated a sworn statement in writing, 
 showing the name of such ditch, canal or of the reservoir 
 supplied by such feeder, the point at which the head-gate is 
 situated, the size of the ditch, canal or feeder, both in width 
 and depth, the carrying capacity in inches, the description of 
 
 1 Stat. 1891, p. 130.
 
 § 546, 547J NEW MEXICO. 709 
 
 the line thereof, the time when the work will commence, the 
 name or names of the owners thereof, together with a map 
 showing the route thereof, the legal subdivisions of the land 
 if on survej^ed lands, with proper corners and distances, and 
 in case of an enlargement or change the depth and width, 
 also the carrying capacit}* of the ditch so enlarged or changed 
 and the increased capacity' of the same thereby occasioned, 
 and the time when such change or enlargement was com- 
 menced, and no priority of rights for any purpose shall attach 
 to an}- such construction, change or enlargement until such 
 record is made." 
 
 § 547. Exemption from Taxation. — Kiparian Rights. — 
 
 On February 13, 1893, there was approved an Act providing 
 that all irrigation ditches, canals and reservoirs thereafter 
 constructed for irrigation purposes shall be exempt from taxa- 
 tion for the period of six years from the commencement of 
 such construction; and all irrigating ditches, canals and reser- 
 voirs theretofore constructed, the extent, carrying capacity or 
 water supply of which has been increased by enlargement, 
 shall be exempt from taxation for six years from the com- 
 mencement of such enlargement. 
 
 The Supreme Court of New Mexico, in the case of Trambley 
 vs. IvUtermau,^ held that the common law as to the rights of 
 " riparian owners was not in force in that Territory. And it 
 will also be noticed by a study of the statutes enacted in that 
 Territor}- upon the subject of waters that they entirely 
 ignore riparian rights. 
 
 1 New Mexico, 27 Pac. Rep. 312.
 
 CHAPTER XXVI. 
 Montana. 
 
 I. SUBJECT TREATED IN GEN- 
 
 ERAL. 
 Section. — 
 
 548. Particular features of State. 
 
 — Irrigation. 
 
 II. GENERAL STATUTORY EN- 
 
 ACTMENTS. 
 
 549. Irrigation laws. — In general. 
 
 550. Rights of persons and cor- 
 
 porations to water. 
 
 Section.— 
 
 551. Right of appropriation for 
 
 beneficial uses. 
 
 552. Sale of water. 
 
 553. Condemnation proceedings 
 
 for right of way for irriga- 
 tion ditches. 
 
 554. Riparian rights. 
 
 1. Subject Treated in General. 
 
 § 548. Particular Features of State. — Irrigation. — Mon- 
 tana is the most northerly State of the arid region. In the 
 northwestern part of the State crops are often raised without 
 irrigation, hence this corner may be said to lie in the sub- 
 humid region. In many parts of the State the rainfall in 
 some years is sufficient to bring the crops almost to maturity, 
 and often only one watering is required. However, the grain 
 may be nearly ripe when the hot dry winds sweep down upon 
 it, and if water is not then at hand in abundance all the past 
 labor will be a complete failure. This one watering is as 
 essential to the success of the crops as are the three or four 
 waterings of the more arid sections, for without it the crops 
 are ruined. The mean annual precipitation for the entire 
 State is about fifteen inches, varying greatly, however, with 
 the altitude of the locality, the high summits receiving thirty 
 inches or more, usually in the form of snow, while the lower 
 plains receive only ten inches or even less. 
 
 Throughout the entire State, as a rule, the construction of 
 ditches and irrigating works has been of the most temporary
 
 § 548-550] MONTANA. 711 
 
 character, although there are a few well built canals made at 
 great expense. Most of the irrigated area is covered by 
 ditches dug by the farmers, without preliminary surveys. 
 Unquestionably more water from the streams would be avail- 
 able for use if the waters were turned out into one or two 
 large carefully prepared canals instead of a great number of 
 small irregular ditches. The building of great systems of 
 storage works would also save the great volume of flood water 
 in the spring, which now runs to waste. 
 
 II. General Statutory E.iaetments. 
 
 §549. Irris^atiou Laws.— In General.— The present con- 
 dition of irrigation development and of the control of the 
 waters of the State is by no means satisfactory to the farmers, 
 and most of them look forward to sweeping improvements in 
 methods and in legislation. As the matter now stands the 
 additional area being brought under irrigation is rapidly 
 increasing in spite of the fact that along nearly all of the 
 smaller streams the present area attempted to be irrigated is 
 in excess of the amount that can be successfully watered from 
 those streams. The older settlers, who legally should have 
 the right to the water to the extent of their appropriation, 
 complain that the larger ditches taking the water out at 
 points higher up the stream are encroaching upon their 
 rights. And if they purchase the water from the ditch com- 
 panies complaint is made that the charge of the company is a 
 great burden. On the other hand, the ditch companies com- 
 plain that they are not making what they should from their 
 investment. 
 
 §550. Rights of Persons and Corporations to Water.— 
 
 The statutes of Montana ^ provide " That any person or per- 
 sons, corporation or company, who may have or hold a title 
 or possessory right to any agricultural lands within the limits 
 of this Territory, as defined by the organic Act thereof, shall 
 be entitled to the use and enjoyment of the waters of the 
 streams or creeks in said Territory for the purpose of irriga- 
 
 IConipileil Statutes of Montana, 1887, vSecs. 1239-1259
 
 712 MONTANA. [§ 550, 551 
 
 tion and making said land available for agricultural purposes 
 to the full extent of the soil thereof. ' ' 
 
 All surplus water left bj^ the prior appropriator must be 
 turned back into the stream within five days after demand is 
 made upon him, in writing, by any person having a right to 
 use such surplus water. 
 
 The statutes provide for a right of way for ditch or canal 
 purposes, said right to extend only so far as is necessary. 
 
 Sec. 1242 provides that all controversies ' respecting the 
 right to water under the provisions of this article shall be 
 determined by the date of the appropriations as respectively 
 made by the parties. The Act also provides that persons 
 digging ditches for the purposes of irrigation are to be liable 
 for all damages to parties injured thereby. 
 
 Sec. 1249. In all controversies respecting the right to 
 water, whether for mining, manufacturing, agricultural or 
 other useful purposes, the rights of the parties shall be deter- 
 mined by the dates»of the appropriations respectively, with 
 the modification existing under the local laws, rules, customs 
 and decisions of the Supreme Court. 
 
 §551. llii^Iit of Appropriation for Beneficial Uses.— On 
 the 1 2th of March, 1885, there was approved an Act which 
 for the most part simply put in statutory language the prin- 
 ciples which had previously been laid down by the Supreme 
 Court of the United States and by the Courts of that Terri- 
 tory. ^ The substance of this Act is as follows: 
 
 " See. 1250. The right to the use of running water flowing 
 in the str'eams, canyons and ravines of this Territory may be 
 acquired by appropriation." 
 
 The following sections provide that the appropriation must 
 be for beneficial purpose; that the place of diversion may be 
 changed; that water may be turned into another stream and 
 mingled with its water and then reclaimed; '* that as between 
 appropriators the one first in time is first in right; that any- 
 one thereafter desiring to appropriate water must post a notice 
 
 1 See Stat. 1885, p. 130. Com- be liberally construed. Floyd vs. 
 piled Stat. 1887, Sees. 1250-1262. Boulder Flume and Mercantile 
 
 2 Notice of appropriation must Company, 11 Mont. 435.
 
 §551] MONTANA. 713 
 
 in writing at a conspicuous place at the point of the intended 
 diversion, and within twenty da^'s thereafter a copy of the 
 notice must be filed with the County Recorder of the proper 
 county, which in addition to the facts required to be stated in 
 the posted notice must contain the name of the stream, if 
 such stream have a name, and if it have not, such a descrip- 
 tion of the stream as will identify it; and an accurate descrip- 
 tion of the point of di%'ersion on such stream, with reference 
 to some natural objector permanent monument. The recorded 
 notice must be verified by the appropriator or some one in his 
 behalf. Within forty days after posting such notice the ap- 
 propriator must proceed to prosecute the construction of the 
 works and must prosecute the same with reasonable diligence 
 to completion. A failure to comply with the provisions of 
 this Act deprives the appropriator of the right to the use of 
 the water as against a subsequent claimant who complies 
 therewith, but by complying with its provisions the right to 
 the use of the water shall relate back to the date of posting 
 the notice.^ 
 
 The Act also provides that former rights to water must be 
 established by filing in the office of the County Recorder a 
 declaration in writing, containing the same facts that are re- 
 quired in the notice provided for record. 
 
 " Sec. 1262. The measurement of water appropriated under 
 this chapter shall be conducted in the following manner: A 
 box or flume shall be constructed with a head-gate placed so 
 as to leave an opening of six inches between the bottom of 
 the box or flume and lower edge of the head-gate, with a slide 
 to enter at one side of and of sufficient width to close the 
 opening left by the head-gate by means of which the dimen- 
 sions of the opening are to be adjusted. The box or flume 
 shall be placed level and so arranged that the stream in 
 passing through the aperture is not obstructed by back water 
 or an eddy below the gate; but before entering the opening to 
 be measured the stream shall be brought to an eddy, and shall 
 stand three inches on the head-gate and above the top of the 
 
 1 As to Construction of vSec 125.S see vSalazer vs. vSinart, (Mont) 30 Pac, 
 Rep. 676.
 
 714 MONTANA. [§ 551-553 
 
 op2ning. The number of square inches contained in the 
 opening shall be the measure of inches of water." ^ 
 
 § 553. Sile of Wiiter. — Sees. 1263 to 1265 of the Compiled 
 Statutes of Montana provide that any person having the right 
 to use, sell or dispose of water, and engaged in the same, who 
 shall have a surplus of water not used, are required upon the 
 payment or tender of an amount equal to the usual customary 
 rate per inch to convey and deliver to the parties requesting 
 it the surplus of unsold water. But the parties desiring to 
 avail themselves of this provision shall at their own cost or 
 expense construct or dig the necessary ditches to receive and 
 convey the necessary water desired by them, and shall pay or 
 tender to the ditch company an amount equal to the cost or 
 expense of tapping any gulch, stream, reservoir, ditch, flume 
 or aqueduct, and putting in gates, gauges or other necessary 
 appliances, and until the same is done the delivery of the said 
 surplus water shall not be required. That any person con- 
 structing the necessary ditches, and making the payments or 
 tender provided, shall be entitled to the use of so much of the 
 surplus water as said ditches shall have the capacity to carry 
 and for which payment or tender shall have been made, and 
 may institute and maintain any appropriate action at law or 
 in equity for the enforcement of such right or recovery of 
 damages arising from a failure to deliver or wrongful diver- 
 sion of the same. 
 
 §553. Condeiiiiijitioii ProceeiHiij^s for Riajht of Way for 
 lrriii;:ilioii Bitches. — On March 6, 1891, there was approved 
 " An Act to define the mode of procedure in relation to right 
 of way for ditches, flumes or canals for irrigating or other 
 purposes." ^ 
 
 1 III an action for damages for statute, is not error, in that it 
 
 the unlawful diversion of water, tests the extent of the appropria- 
 
 an instruction in substance that tion by the capacity of the head- 
 
 the extent of the plaintiff's appro- gate and not that of the ditch, 
 
 priation is determined b}- the Carron vs. Wood, lo Mont. 500. 
 
 capacity of his head-gate and 2 Stat. 1891, p. 295. 
 ditches, measured as required by
 
 §553,554] MONTANA. 715 
 
 The Act provides that where the right of way cannot be 
 acquired by agreement between the parties then the ditch 
 owners seeking to acquire the right of way may present to the 
 Judge of the District Court of the proper district a petition 
 praying that such right of way be granted. That upon the 
 filing of the petition by the Clerk of the Court the Judge 
 shall cause a citation to issue, requiring ail parties interested 
 to appear before the Judge on a day therein named; such cita- 
 tion shall be served on each of the parties in the manner pre- 
 scribed by law for serving summons in ordinary proceedings. 
 Upon a day set the Judge shall hear the allegations and proofs 
 of the respective parties, and if he is satisfied that the peti- 
 tioner can only be conveniently supplied with water by means 
 of the privilege prayed for he shall make an order adjudging 
 and awarding such right of way, and shall appoint three com- 
 missioners to assess the damages resulting to the land affected 
 by such order. The commissioners must examine the prem- 
 ises assessed and report to the Court the damages. Upon the 
 payment of the sum assessed, or a tender thereof, then the 
 petitioner is entitled to the right of way as prayed for and 
 may immediately proceed to occupy the same, and to con- 
 struct thereon such works as are necessary. Proceedings for 
 appeal are then provided, but the prosecution of any appeal 
 shall not hinder, delay or prevent the appellee from exercising 
 all the rights and privileges granted in the decree, provided 
 he shall file with the Clerk of the Court a bond of sufficient 
 sureties in double the amount of the assessment appealed from. 
 
 §554. Riparian Rights.— The statutes of Montana entirely 
 ignore the rights of riparian proprietors. It will also be 
 noticed that from the very first the decisions of the Court are 
 to the effect that rights to water can only be acquired by ap- 
 propriation of the same to some beneficial use or purpose, 
 and that the common law riparian rights are not recognized 
 or protected by the Courts.
 
 CHAPTER XXVII. 
 Colorado. 
 
 I. SUBJECT TREATED IN 
 GENERAL. 
 Section. — 
 
 555. Particular features of State. 
 
 — Irrigation . 
 
 H. STATUTORY EN.\CTMENTS. — 
 STATE CONTROL OF WATERS. 
 
 556. Constitutional provisions. 
 
 557. Irrigation, use of water for. 
 
 — Condemnation of right of 
 way. — Statement. 
 
 558. Water to be prorated. — Pri- 
 
 ority of right to spring wa- 
 ters. 
 
 559. Duties of ditch owners. — 
 
 Rates of charges for water. 
 
 560. Authority of County Com- 
 
 missioners. 
 
 561. Water districts. — Water Com- 
 
 missioners. 
 
 562. Royalties prohibited — Illegal 
 
 rate. — Excess how recov- 
 ered. 
 
 Section.— 
 
 563. Adjudication of water rights. 
 
 564. Referees, hearing before. 
 
 565. Appeals, how taken. 
 
 566. Water divisions. — Division 
 
 Superintendents. 
 
 567. State Engineer, duties of. 
 
 56S. Regulation of the distribu- 
 tion of water. 
 
 569. Water for domestic pur- 
 
 poses. 
 
 570. Conveyance of water rights. 
 
 III. IRRIGATION DITCH CORPO- 
 RATIONS. 
 
 571. Corporations. — How Organ- 
 
 ized. — Right of way. 
 
 572. Same. — Assessments. — When 
 
 compelled to furnish water. 
 
 573. Riparian rights in Colo- 
 
 rado. 
 
 I. Subject Treated in General. 
 
 § 555. Particular Features of State. — Irrigation. — Colo- 
 rado is the summit of the continent. Waters flow from it to 
 the north, south, east and west. The western two-thirds of 
 the State is traversed with immense mountain ranges. 
 Stretching from the eastern base of the foothills extends a 
 long and gentle slope of the plains falling in the. hundred
 
 § 555, 556] COLORADO. 717 
 
 miles from the mountains to the eastern border from an altitude 
 of from five to six thousand feet to thirty-five hundred feet. 
 This section of the country is very dry, and these plains fur- 
 nish no large streams until we reach their eastern border. 
 The State is divided into two portions by the continental 
 divide, with different conditions affecting the art of irriga- 
 tion — the eastern portion with much land and relatively little 
 water; the western with these conditions reversed. Within 
 the last few years irrigation has received a great impetus and 
 many systems of considerable size have been constructed. 
 But, as in the case of many of the other western States, the 
 water supply is entirely inadequate to the demand. And 
 based upon this demand the important movement for storage 
 reservoirs is receiving attention. This movement is most 
 marked in regions where settlements have been made the 
 longest, and consequently where the demands for water are 
 greatest. 
 
 II. Statutory Enact iiients. — State Control of Waters. 
 
 §556. Constitutional Pi:ovisions. — Article XVI., Sees. 5 
 to 8 contain the following: "The water of every natural 
 stream not heretofore appropriated within the State of Colo- 
 rado is hereby declared to be the property of the public, and 
 the same is dedicated to the use of the people of the State, 
 subject to appropriation as hereinafter provided." 
 
 " Sec. 6. The right to divert unappropriated waters of any 
 natural stream for beneficial uses shall never be denied. 
 Priority of appropriation shall give the better right as between 
 those using the water for the same purpose; but when the 
 waters of any natural stream are not sufficient for the service 
 of all those desiring the use of the same, those using the water 
 for domestic purposes shall have the preference over those 
 claiming for any other purpose, and those using the water for 
 agricultural purposes shall have the preference over those 
 using the same for manufacturing purposes." 
 
 " Sec. 6. All persons and corporations shall have the right- 
 of-way across public, private and corporate lands for the 
 construction of ditches, canals and flumes for the purpose of 
 conveying water for domestic purposes, for the irrigation of
 
 718 
 
 COLORADO. 
 
 [§550 
 
 agricultural lands, and for mining and manufacturing pur- 
 poses and for drainage, upon payment of just compensation." 
 "Sec. 8. The General Assembly shall provide by law that 
 the Board of County Commissioners in their respective coun- 
 ties shall have power, when application is made to them by 
 either party interested, to establish reasonable maximum 
 rates to be charged for the use of water, whether furnished by 
 individuals or corporations." ^ 
 
 1 See Mills Annotaterl Stat, of 
 Colo., Sees. 510-513. 
 
 Ill the case of Wyatt vs. Lari- 
 mer & Wells Irrigation Co., i 
 Colo. App 480; 29 Pac. Rep. 906, 
 the Court held that the terms 
 "public" and "people" in Sec. 
 5 are synonymous, and the dec- 
 laration that the unappropriated 
 waters are "the property of the 
 public" and "dedicated to the use 
 of the people of the State subject 
 to appropriation" does not mean 
 that the ownership of water should 
 remain inalienable in the public, 
 but that it should pass to the peo- 
 ple by the first appropriation to a 
 beneficial use. 
 
 In the case of Larimer Co. 
 Reservoir Co. vs. People, 8 Colo. 
 614; 9 Pac. Rep. 794, it was held 
 under Sec. 6 that while the Legis- 
 lature could not prohibit the ap- 
 propriation or diversion of unap- 
 propriated water for beneficial 
 purposes it had tlie power to regu- 
 late the manner of such appropria- 
 tion or diversion. 
 
 Also in Armstrong vs. Larimer 
 Ditch Co., I Colo. App. 49; 27 Pac. 
 Rep- 235, it was held, rela'ive to 
 the last part of Sec. 6 above 
 quoted, regarding preferences, 
 that the Constitution did not au- 
 thorize an interference with the 
 rights of prior appropriators for 
 
 irrigation purposes vested before 
 the adoption of the Constitution 
 in order to supply water for do- 
 mestic purposes to later comers. 
 
 To make any diversion of water 
 from a natural stream by an ap- 
 propriation within the meaning of 
 the Constitution it must be ap- 
 plied to some beneficial use, and 
 in the case of irrigation it must be 
 actually applied to the land. 
 Farmers' High Line Canal Co. vs. 
 Southworth, 13 Colo. 11 1; 21. Pac. 
 Rep. T028. 
 
 The Supreme Court holds that 
 Sec. 6 is prospective and not re- 
 trospective in its action. Strickler 
 vs. Colo. Springs, 16 Colo. 73. 
 
 The term " irrigation," as used 
 in Colorado in the Constitution 
 and statutes and judicial opinions, 
 in view of the climate and soil, is 
 in its special sense, to-wit: " The 
 application of water to lands for 
 the raising of agricultural crops 
 and other products of the soil." 
 Platte Water Co. vs. Northern 
 Colo. Irr. Co., 12 Colo. 529. 
 
 All unappropriated water in the 
 natural streams of the State is 
 dedicated "to the use of the peo- 
 ple," and the ownership is vested 
 in the "public." Wheeler vs. 
 North. Colo. Irr. Co., 10 Colo. 587. 
 
 The common law doctrine as to 
 riparian rights by which the ri-
 
 §556] 
 
 COLORADO. 
 
 719 
 
 Article X., Sec. 3 of the Constitution provides that ditches, 
 canals and flumes owned and used b}' individuals and corpo- 
 rations for irrigating lands owned by such individuals or 
 
 parian owner is entitled to the 
 flow of the water in its natural 
 channel upon and over his lands, 
 whether he makes any beneficial 
 use of it or not, is inapplicable to 
 Colorado. Coffin vs. Left Hand 
 Ditcli Co., 6 Colo. 447. 
 
 The doctrine of priority of right 
 to water by priority of appropria- 
 tion for a beneficial purpose, with 
 modifications declared in the Con- 
 stitution, is and always has been 
 enforced in the State of Colorado. 
 Thomas vs. Guiraud, 6 Colo. 532; 
 Schilling vs. Roniinger, 4 Colo. 
 103. 
 
 In the absence of express stat- 
 utes to the contrary the first ap- 
 propriator of water from a natural 
 stream for a beneficial purpose 
 has, with the qualifications con- 
 tained in the Constitution, a prior 
 right thereto to the extent of such 
 appropriation. Coffin vs. Left 
 Hand Ditch Co., 6 Colo. 447; 
 Golden Canal Co. vs. Bright, 8 
 Colo. 148; Hammond vs. Rose, 11 
 Colo. 526. 
 
 The wora "divert" in the sixth 
 section of the Constitution must 
 be construed with the word "ap- 
 propriation." While the former 
 may mean "to take or carry 
 away" the water from the bed or 
 channel of the stream, still the 
 latter means "to successfully 
 apply the water to the beneficial 
 use designed;" hence, if without 
 infringing upon the prior rights 
 of others, adam is built in the bed 
 of a non-navigable stream on the 
 public domain, such act is not un- 
 
 lawful /^r .y^, and to comply with 
 this section of the Constitution 
 the water need not be immediately 
 "taken or carried away" from the 
 dam, but simply "applied to the 
 beneficial use designed," with 
 "reasonable diligence" and "with- 
 out unnecessary delaj'." Larimer 
 Co. Res. Co. vs. People, 8 Colo. 
 616. 
 
 By the Constitution and laws of 
 Colorado, Stale and Territorial, 
 from the earliest times rights to 
 the beneficial use of water from 
 natural streams have been ac- 
 quired by diversion through prior 
 appropriation rather than by 
 grant. It has been the settled 
 doctrine of the Courts of Colorado 
 that such appropriation to be valid 
 must be manifested by the suc- 
 cessful application of the water to 
 the beneficial use designed, or ac- 
 companied by some open, physical 
 demonstration of intent to take 
 the same for such use. Platte 
 Water Co. vs. North. Colo. Irr. 
 Co., 12 Ci do. 530; Yunker vs. Nich- 
 ols, I Colo. 555; Schilling vs. Ro- 
 minger, 4 Colo. 103; Coffin vs. 
 Ditch Co., 6 Colo. 446; Thomas vs. 
 Guiraud, 6 Colo. 532; Sieber vs. 
 Prink, 7 Colo. 154; Larimer Co. 
 Res. Co. vs. People, 8 Colo. 616. 
 
 Sec. 1716, G. S., 1883 (same 
 Mills' Ann. Slat. 1890, § 2261), is 
 not in conflict with Sec. 7 of the 
 Constitution, for it recognizes the 
 right of way for ditches, and seeks 
 only to regulate the exerrise of 
 such light so as to inflict ihe least 
 possible injury and inconvenience
 
 720 
 
 COLORADO. 
 
 [§ 556, 557 
 
 corporations, or the individual members thereof, shall not be 
 separately taxed so long as they are owned and used exclu- 
 sively for such purposes.^ 
 
 § 55?. Irrigation, Use of VVuler For. — CoiKleinuiitiou of 
 Rijrlit of Way.— Statement.— The General Statutes of Colo- 
 rado, 1883,- provide: 
 
 "Section 171 1. All persons who claim, own or hold a pos- 
 sessory right or title to any land, or parcel of land, within 
 the boundary of the State of Colorado, as defined in the con- 
 stitution of said State, when those claims are on the bank, 
 margin, or neighborhood of any stream of water, creek or 
 river, shall be entitled to the use of the water of said stream, 
 creek or river for the purposes of irrigation, and making said 
 
 upon the owner of the servient 
 estate. Tripp vs. Overocker, 7 
 Colo. 73. 
 
 The right of a private party to 
 condemn a right of way for a 
 ditch to convey water to his lands 
 for domestic, agricultural and 
 mining purposes is guaranteed by 
 this section. Downing vs. More, 
 T2 Colo. 318. 
 
 In the very recent case of Cash 
 vs. Thornton, decided b}' the 
 Court of Appeals of Colorado, 
 Sept. 25, 1893, 34 Pac. Rep. 268, 
 where the plaintiff alleged a prior 
 appropriation of the water-course 
 for irrigation purposes and a di- 
 version by defendant, and asked 
 for an injunction and damages, 
 the jury found damages against 
 the defendant for $150, but de- 
 cided nothing as to priority of 
 water-rights. Defendant moved 
 for a new trial, which was denied 
 upon plaintiff's filing a waiver of 
 any claim that the question of any 
 prior rights in the water'had been 
 determined, and judgment was 
 rendered for the plaintiff. The 
 
 Court above held that it was 
 error, inasmuch as if plaintiff had 
 no prior right in the water he 
 was not entitled to damages under 
 the Constitution providing that 
 the prior appropriation shall give 
 the better right between parties 
 using water for the same purpose. 
 
 1 The General Statutes, Section 
 1 761 provide that all ditches used 
 for the purpose of irrigation, and 
 that only when the water is not 
 sold for the purpose of deriving a 
 revenue therefrom, he and the 
 same are hereby declared free 
 from all taxation, whether for 
 State, county or municipal pur- 
 poses. 
 
 It is held by the Colorado Court 
 of Appeals in the case of The Em- 
 pire M. C. Co. vs. County Treas- 
 urer, I Colo. App. 205, that the 
 ditch to be exempt from taxation 
 must be used exclusively for irri- 
 gating lands owned by the com- 
 pany or the individual members 
 thereof owning the ditch. 
 
 2 Sees. 1711-1727. I Mill's Anno- 
 tated Statutes, Sees. 2256 et seq.
 
 § 557] COLORADO. 721 
 
 claims available to the full extent of the soil for agricultural 
 purposes." ^ 
 
 The sections following provide that a right-of-waj'^ for a 
 ditch or canal through farms and lands is granted, but such 
 right-of-way shall extend only to a ditch, dyke or cutting 
 sufficient for the purpose required. - 
 
 Sec. 1 7 14 provides that in case the volume of water in any 
 stream or river shall not be sufficient to supply the continual 
 wants of the entire country through which it passes then the 
 County Judge of the county shall appoint three commissioners 
 whose duty it is to apportion in just and equitable proportion 
 a certain amount of water upon certain alternate weekly days 
 to different localities, as they may in their judgment think 
 best for the interest of all parties concerned, wnth due regard 
 to the legal rights of all. 
 
 In case of the refusal of the landowner to allow the passage 
 of any ditch, for the purpose mentioned, condemnation pro- 
 ceedings are provided to condemn and take the right of way 
 therefor (under the provisions of Chapter XXXI., concerning 
 eminent domain). No land must be burdened with more 
 than one ditch, except with the consent of the owner thereof; 
 the shortest route must be taken for the ditch through the 
 lands; and any person having constructed a ditch shall not 
 prohibit or prevent any other person from using any ditch, 
 upon the paj'^ment to him of a reasonable proportion of the 
 cost of the construction of the same.^ 
 
 1 See Ante Sec. 556 aud note. gating water whenever necessarj^ 
 
 - Upon the construction of these is ineffectual for any purpose on 
 
 sections see the case of Yunker vs. account of its uncertainty. Mc- 
 
 Nichols, I Colo. 554; Colo. C. R. Kiiisie vs. Ballard, 14 Colo. 426.— 
 
 Co. vs. Allen, 13 Colo. 238; Stew- (See .Southwestern Land Co. vs. 
 
 art vs. Stephens, 10 Colo. 445. Hickory Jackson D. Co. 33 Pac. 
 
 This section gives right of way 275; Colo. Sup. Ct.) 
 
 for ditches, but just compensation 3 See vSand Creek L. I. Co. vs. 
 
 must be rendered therefor. Tripp Davis, 29 Pac. 742; McLain vs. 
 
 vs. Overocker, 7 Colo 73; Down- People, 9 Colo. 193. 
 
 ing vs. More, 12 Colo. 319; Davis In the case of Tripp vs. Over- 
 
 vs. Wanamaker, 2 Colo. 637. ocker it was held that this section 
 
 It is held that an order requiring was constitutional. The constitu- 
 
 defendant to build sluices for irri- tional provision granting the right
 
 722 COLORADO. [§ 557 
 
 "Sec. 1720. Every person, association or corporation here- 
 after constructing' or enlarging an}' ditch, canal, or feeder for 
 an}' ditch or reservoir for irrigation and taking water directly 
 from any natural stream, and of a carrying capacity of more 
 than one cubic foot of water per second of time, as so con- 
 structed or enlarged, shall, within ninety (90) days after the 
 commencement of such construction or enlargement, file in 
 the office of the County Clerk and Recorder of the count\' in 
 which the head-gate of such ditch or feeder may be situated, 
 and also in the office of the State Hydraulic Engineer, a map 
 showing the point of location of such head-gate; the route of 
 such ditch or canal, or the high-water line of such reservoir 
 or reservoirs, and the route of the feeder to, and the ditches 
 or canals from, such reservoir or reservoirs; the legal subdi- 
 visions of the lands upon which such structures are built, or 
 to be built, if on surveyed lands, the names of the owners of 
 such lands, as far as the same are of record in the office of the 
 County Clerk of the count}- in which they are situated; such 
 courses, distances and corners, by reference to legal subdi- 
 visions, if on surveyed lands, or to natural objects if on un- 
 surveyed lands, as will clearly designate the location of such 
 structures. Upon or attached to such map shall be a state- 
 ment showing: 
 
 ''First, The point of location of the head-gate above men- 
 tioned. 
 
 ''Second, The depth, width and grade of such ditch, canal 
 or feeder. 
 
 " Third, The carrying capacity of such ditch, canal or feeder 
 in cubic feet per second of time, and the capacity of such 
 reservoir or reservoirs in cubic feet when filled to the high- 
 water mark. 
 
 "Fourth, The time of commencement of work on such 
 
 of way for the construction of where he can feasibly conve)' 
 
 ditches must be exercised in such water through defendant's ditch. 
 
 a way as to inflict the least possi- Denver, etc. vs. Lamborn, 8 Colo, 
 
 ble inconvenience and injury upon 385. See also Downing vs. More, 
 
 the owner of the servient estate. 12 Colo. 319; San Luis C. I. Co. 
 
 By this section a party cannot take vs. Kenilworth C. Co. (Colo. App.) 
 
 a second ditch across cultivated 32 Pac. Rep. 860. 
 lands to irrigate his lands beyond.
 
 § 557, 558] COLORADO. 723 
 
 structures, which time may be dated from the commence- 
 ment of the survej'S therefor. 
 
 " In case of an enlargement such statement shall also show 
 the matters required in items Second, Third and Fourth above, 
 as to the enlargement, and state the increased capacity arising 
 from such enlargement. If such statement be filed within 
 the time above limited, priority of right of way, and water 
 accordingly, shall date from the day named as the day of com- 
 mencing work, otherwise, only from the date of the filing of the 
 same; provided, that nothing herein contained shall be taken 
 to dispense with the necessity of due diligence in the prose- 
 cution of such structures on the part of the projectors of the, 
 same. Such statement shall be signed by the person, associ- 
 ation or corporation on whose behalf it is made, and the truth 
 of the matters shown in such map and statement shall be 
 sworn to by some person in whose personal knowledge the 
 truth of the same shall lie."^ 
 
 §55S. Water to be Pro Rated.— Priority of Ri2:ht to 
 Spring Waters. — Sec. 1722 provides: If at any time any 
 ditch or reservoir from which water is drawn for irrigation 
 shall not be entitled to a full suppl}^ of water from the nat- 
 ural stream which supplies the same, the water actually 
 carried by such ditch, or held in such reservoir, shall be 
 divided among all consumers of water from such works, to 
 each his share pro rata, according to the amount that each 
 one is entitled to, so that all owners and purchasers shall suf- 
 fer from the deficiency thus arising in proportion to the 
 amount of water to which each one should 'have received in 
 case no such deficiency had occurred. ^ 
 
 "Sec. 1723. All persons who shall have enjoyed the use 
 
 1 vSession law, i8Si, p. 162; Gen. same beneficial purpose priority 
 Stat. 1S83, p. 562: Mills'Ann. Stat. of use gives superiority of right 
 Sec. 2265, as amended by law of irrespective of the mode of diver- 
 1887, p. 314. sion; and this rule is applicable to 
 
 As to the construction of this individual customers, as between 
 
 section before amendment, see themselves, when they receive 
 
 Crisman vs. Herderer, 5 Colo. 594. water through the agency of an 
 
 2 As between those using the artificial stream, as well as when 
 water of natural streams for the they receive it direct from the
 
 724 COLORADO. [§ 558, 559 
 
 of the water in any natural stream or the irrigation of any 
 meadow land, by the natural overflow' or operation of the 
 water of such stream shall, in case the diminishing of water 
 supplied by such stream for any cause prevent such irrigation 
 therefrom in as ample a manner as formerly, have right to 
 construct a ditch for the irrigation of such meadow, and to 
 take water from such stream therefor, and his or their right 
 to water through such ditch shall have the same priority as 
 though such ditch had been constructed at the time he, she 
 or they first occupied and used such land as meadow ground." 
 
 In 1889 an Act was passed regulating priority of right in 
 seepage or spring waters, which is as follows: " All ditches 
 now constructed or hereafter to be constructed for the purpose 
 of utilizing the waste, seepage or spring waters of the State, 
 shall be governed by the same laws relating to priority of 
 right as those ditches constructed for the purpose of utilizing 
 the waters of running streams ; provided, that the person upon 
 whose lands the seepage or spring waters first arises shall 
 have the prior right to such waters if capable of being used 
 upon his lands." ^ 
 
 Sees. 1724 to 1727 provide for the construction and mainte- 
 nance of reservoirs and to condemn lands for such reservoirs, 
 the conducting of water of any reservoir into and along any of 
 the natural streams and the right to place wheels on the 
 streams for the purpose of raising water to the level required 
 for the purpose of irrigation. ^ 
 
 §559. Duties, of Ditch Owners.— Rates of Charges for 
 Water. — Sees. 1 728-1 737 provide that the owners of any ditch 
 shall carefully maintain the embankment thereof, so that the 
 waters of such ditch shall not flood or damage the premises 
 of others.'^ The owner of the ditch must prevent the water 
 
 natural stream. The pro rating rating water law of 1861, p. 68. 
 
 statute, it is held, must be limited 1 Session Law, 1889, p. 215, Sec. 
 
 accordingly. Farmers' High Lime i; Mills' Ann. Stat., Sec. 2269. 
 
 Canal Co. vs. Southworth, 13C0I0. 2 Larimer Co. Res. Co. vs. Peo- 
 
 iii; 21 Pac. Rep. 102S. pie, 8 Colo. 615. 
 
 Also see Coffin vs. Left Hand 3 See the case of Greelej' Ir. Co. 
 
 Ditch Co., 6 Colo. 448, as to pro- vs House, 14 Colo. 549, 24 Pac.
 
 § 559J COLORADO. 725 
 
 from wasting. During the summer .season the owners of 
 ditches must not permit any greater quantit}^ of water than is 
 absolutely necessary for irrigating their land to run through 
 the ditch. 
 
 " Sec. 1740. Any person or persons, acting jointly or sever- 
 ally, who shall have purchased and used water for irrigation 
 for lands occupied by him, her or them, from any ditch or 
 reservoir and shall not have ceased to do so for the purpose or 
 with the intent to procure water from some other source of 
 supply, shall have a right to continue to purchase water to the 
 same amount of his, her or their lands, on paying or tendering 
 the price thereof fixed b}' the county commissioners as above 
 provided, or if no price shall have been fixed bj'^ them the 
 price at which the owners of such ditch or reservoir may be 
 then selling water, or did sell water during the then last pre- 
 ceeding year. This section shall not apply to the case of 
 those who may have taken water as stockholders or share- 
 holders after they shall have sold or forfeited their shares of 
 stock, unless they shall have retained a right to procure such 
 water by contract, agreement or understanding, and use 
 between themselves and the owners of such ditch, not then to 
 the injury of other purcha.sers of water from or shareholders 
 in the same ditch." ^ 
 
 Rep. 329, where it was held that cise of this right, to acknowledge 
 
 the defendants were liable under the equity of all rules adopted by 
 
 the statutes, and that they could the ditch company, 
 
 not avoid the consequence of their In the case of Wheeler vs. North 
 
 own negligence on the plea that Colo. Irr. Co., 10 Colo. 595, it was 
 
 gophers had burrowed in the held that this 'section applies only 
 
 banks, and that therefore the to those parties who have exer- 
 
 overflow was due to unavoidable cised the right to use water for 
 
 accident. their lands and is an assurance 
 
 1 In the case of Golden Canal of the right to continue the use of 
 
 Co. vs. Bright, 8 Colo. 149, the the water, and this right may be 
 
 Court held that this section con- enforced by mandamus. The Court 
 
 fers an affirmative right upon the held it did not give one who had 
 
 prior purchaser, who has complied never had the u.se of water the 
 
 with the provisions thereof, to right to the water, but upon this 
 
 continue his purchase of water, propo.sition see the case of Combs 
 
 and he cannot be required as a vs. Agricultural Ditch Co., 17 
 
 condition precedent to the excr- Colo. 196; 28 Pac. Rep. 966.
 
 726 COLORADO. [§ 560 
 
 § 560. Authority of County Commissioners. — In con- 
 formity with Sec. 8, Article XVI., of the Constitution of 
 Colorado, there was approved on April 4, 1887, " An Act to 
 regulate the mode of fixing the rates of compensation b}- 
 boards of Count}' Commissioners for water furnished and de- 
 livered for irrigation and other lawful purposes from ditches, 
 canals, conduits and reservoirs, and to repeal laws inconsistent 
 therewith, and to punish offenses contrary thereto." 
 
 "Section i. The County Commissioners of each county 
 shall, at their regular sessions in each year and at such other 
 sessions as they in their discretion may deem proper, in view 
 of the irrigation and harvesting season and the convenience 
 of all parties interested, hear and consider all applications 
 which maj' be made to them by any part}' or parties interested 
 either in furnishing and delivering for compensation in any 
 manner, or in procuring for such compensation water for irri- 
 gation, mining, milling, manufacturing or domestic purposes 
 from any ditch, canal, conduit or reservoir, the whole or any 
 part of which shall lie in such county. Which application 
 shall be supported by such affidavits as the applicant or appli- 
 cants may present, showing reasonable cause for such board 
 of County Commissioners to proceed to fix a reasonable 
 maximum rate of compensation for water to be thereafter 
 delivered from such ditch, canal, conduit or reservoir within 
 such county." ^ 
 
 See also on subject Supply contracts may be made with the 
 
 Ditch Co vs. Elliott, 10 Colo. 328. customers, and consumers may 
 
 In the case of Mack vs. Jackson, continue under pre-existing con- 
 
 9 Colo. 537, it was held that where tracts. South Boulder Ditch Co. 
 
 a party sues for damages caused vs. Marfell, 15 Colo. 302; 25 Pac. 
 
 by being restrained from using Rep. 504. 
 
 the water from a certain ditch, if See also Rockwell vs. Highland 
 
 it is shown that he could have Ditch Co., i Colo. App. 396; 29 
 
 obtained sufficient water from an- Pac. Rep. 2S9; and Farmers' High 
 
 other source he will not be en- Line Canal Co. vs. White (Colo.), 
 
 titled to receive a greater sum 31 Pac. Rep. 345. 
 
 than he would have had to expend l Prior to this Act it was held in 
 
 to obtain water from such source. the case of Wheeler vs. North. 
 
 Although the County Commis- Colo. Irr. Co., 10 Colo. 583, the 
 
 sioners in pursuance of this stat- statute did not authorize the 
 
 ute may fix a water rate, special County Commissioners of a given
 
 §560,561] COLORADO. -727 
 
 Specific rules are then laid down for hearing the parties in- 
 terested and taking the necessar}' testimony. " Upon hearing 
 and considering all the evidence and facts and matters in- 
 volved in the case said board of Commissioners shall enter an 
 order describing the ditch, canal, conduit, reservoir or other 
 work in question with sufficient certainty, and fixing a just 
 and reasonable maximum rate of compensation for water to be 
 thereafter delivered from said ditch or other works as last afore- 
 said within the county in which such Commissioners act and 
 such rate shall not be changed within two years from the 
 time when they shall be so fixed unless upon good cause 
 shown." 
 
 § 561. Water Districts. — Water Commissioners. — In the 
 
 State of Colorado, on petition of parties interested, there have 
 been formed from time to time irrigation districts including 
 tracts of land that can be irrigated from the same source of 
 supply. About sevent}^ of these districts have been formed in 
 the State, and over each district a Water Commissioner is ap- 
 pointed by the Governor.^ 
 
 The duties of the Water Commissioners are to divide the 
 w^ater of the natural streams of their respective districts 
 among their several ditches taking water from the same 
 stream according to the prior rights of each respectively; in 
 whole or in part to shut and fasten, or cause to be shut and 
 fastened, the head-gates of any ditch heading in any natural 
 streams of the district, which in a time of scarcity of water 
 shall not be entitled to water by reason of the priority of the 
 rights of others below them on the same stream. 
 
 Penalties are prescribed for interfering with au}' head-gates 
 without authority. 
 
 Sec. 1758 provides that Water Commissioners shall not 
 begin their work until they shall be called on by two or more 
 
 county to establish a maximum 1S83, page 566, see the case of 
 
 rate if the head of the canal was Golden Caiiai Co. vs. Bright, 8 
 
 located in another county. Colo. 147. 
 
 As to the constitutionality of ^ Mills' .\nn. Stat., Sees. 2310- 
 
 the law of 1879 upon this subject 2392; General Stat. Colo., Sees. 
 
 L. 1879, pages 94-96, Gen. Stat. 1741-1758.
 
 728 COLORADO. [§ 561, 562 
 
 persons controlling ditches, by application in writing, stating 
 that there is necessity for their action; and they shall not 
 continue performing services after the necessity shall cease. 
 
 By an Act approved March 25, 1889,^ the Water Commis- 
 sioners are invested with the power of Constables and may ar- 
 rest any persons violating their orders relative to the opening 
 or shutting down of head-gates or using water for irrigating 
 purposes, and may take such offender before the nearest 
 Justice of the Peace who may, if such offender be convicted, 
 fine him in anj^ sum not exceeding $100.00, and in default of 
 payment of such fine may imprison him in the Count}^ Jail 
 not exceeding thirty days. 
 
 Power is given each Water Commissioner, whenever he 
 shall deem it necessar}-, to employ- suitable assistants to aid 
 him in the discharge of his duties. Each Water Commis- 
 sioner must keep an itemized account of the time of each 
 assistant by him emploj-ed; and also an itemized account of 
 the time spent by himself in the duties of his office, and 
 shall certify the same to the board of County Commissioners. 
 
 § 562. RoyaUies Prohibiteil. — Illeajal Rate. — Ex:ee«}s how 
 Recovered. — On April 4, 1887, there was approved " An Act 
 to define, prohibit, punish and restrain extortion and other 
 abuses in the management of ditches, canals and reser- 
 voirs."^' 
 
 Section i of said Act provides: It shall not be lawful for 
 any person holding or controlling any ditch, canal or reservoir 
 for the carr3'ing or storing of any water taken from any 
 natural stream or lake within the State to be furnished or de- 
 livered for compensation for irrigation, mining, milling or 
 domestic purposes, to persons not interested in such owner- 
 ship or control, to demand, bargain for, accept or receive from 
 any person who maj- apply for water for any of the aforesaid 
 purposes, any money, or other valuable thing whatsoever, or 
 any promise or agreement therefor, directl}'^ or indirectly, as 
 royalty, bonus or premium prerequisite or condition precedent 
 
 1 See Laws, 1889,' p. 469; Mills" 2 Session Laws, 1887, p. 308 ; 
 
 Ann. Stat., Sees. 2386-2391. Mills' Ann. Stat., Sees. 2304-2309.
 
 § 562] COLORADO 129 
 
 to the right or privilege of applying, or bargaining for, or 
 procuring such water. But such wacer shall be furnished, 
 carried and delivered upon payment or tender of the charges 
 fixed by the Count)- Commissioners of the proper county as is 
 or may be provided b}' law. Anj' and all moneys, and every 
 valuable thing or consideration of whatsoever kind, which 
 shall be so, as aforesaid, demanded, charged, bargained for, 
 accepted, received or retained contrary- to the provisions of 
 this section shall be deemed and held an additional and cor- 
 rupt rate, charge or consideration for the water intended to be 
 furnished or delivered therefor, or because thereof, and wholly 
 extortionate and illegal; and when paid, delivered or surren- 
 dered may be recovered back from the party to whom or for 
 whose use the same shall have been paid, together with costs 
 of suit, including reasonable fees of attorneys of plaintiff, by 
 proper action in an 3' Court having jurisdiction. 
 
 Sec. 2 provides that every person owning or controlling any 
 such work mentioned in the first section who shall after de- 
 mand in writing made upon him for the delivery of water for 
 the purposes mentioned from the works owned or controlled 
 by him, and after the tender of the lawful rate of compensa- 
 tion therefor, in lawful money, demand, require, bargain for, 
 accept, receive or retain from the party making such applica- 
 tion any money or thing of value as such royalty, bonus or 
 premium, as is by the provisions of the first section prohi- 
 bited, shall be deemed guilty of a misdemeanor, and on con- 
 viction thereof shall be punished by a'fineof not less than 
 $100.00, nor more than $5,000.00, or imprisonment for a 
 term not less than three months nor more than one year, or 
 both such fine and imprisonment, in the discretion of the Court. 
 
 Sec. 3 provides for like penalties as above to every person 
 owning or controlling any such irrigation works mentioned 
 who shall after demand in writing refuse to furnish or carr>- 
 and deliver from such works any water so applied for vvhicli 
 might be by the use of reasonable diligence furnished and 
 delivered without the infringement of prior right.' 
 
 lA consumer has no rij^ht to may sec fit from a ditch, and a 
 forcibly take whatever water he contract which t,Mves him such
 
 730 COLORADO. [§ 563 
 
 §563. Adjudication of Water Rights. — In i88i there went 
 into effect " An Act to regulate the use of water for irriga- 
 tion, and providing for settling the priority of right thereto 
 and for payment of expenses thereof and for payment of all 
 costs and expenses incident to said regulation of use." ^ 
 
 Sec. 1762 provides that jurisdiction is vested exclusively in 
 the District Court of the proper county for settling the prior- 
 ity of rights to the use of water for irrigation. And the fol- 
 lowing sections provide that In order that all persons may be 
 protected in their lawful rights to the use of water for irriga- 
 tion those claiming water rights in a certain source of supply 
 shall on or before the first day of June, 1881, file with the 
 Clerk of the District Court a statement containing the names 
 and addresses of all the claimants of any ditch or works and 
 all the facts regarding the same, and praying for an adjudi- 
 cation of their respective rights. The Court must then hear 
 at a date set all the evidence offered by any parties interested, 
 and make a decree determining and establishing the several 
 priorities of right by appropriation of water of the several 
 ditches and reservoirs in such water district, concerning which 
 such testimony shall have been offered. A certified copy of 
 such decree shall be prima facie evidence of all the facts 
 cited therein. Specific rules are laid down relative to the 
 proceedings of the Court; service of notice on all parties; the 
 taking of the testimony and the adjudication of rights in 
 accordance with the evidence before the Court. ^ 
 
 It is the duty of the Court to determine the matters put in 
 evidence, and to make and cause to be entered a decree deter- 
 mining and establishing the several priorities of right by 
 
 right is void as against public that the title of said Act is suffi- 
 
 policy. Farmers' H. C. R. Co. vs. cient and clearly expresses the 
 
 White, 31 Pac. Rep. 345. subject as required by the Co«sti- 
 
 1 Approved and enforced Febrti- tution, Art. V-, §21. 
 
 ary 19, 1879. Session Laws 1879, 2 As to the construction .of the 
 
 p. 94, amended b}- Act of iSSi, Irrigation Acts of 1875 and 1881 
 
 Laws 1881, p. 142. See Mills' supra, see Platte Water Co. vs. 
 
 Ann. Stat. 2399-2439; General Stat. North'Colo. Irr. Co., 12 Colo. 529; 
 
 Colo. 1883, Sec. 1762-1801. Farmer's High Line Canal Co. vs. 
 
 In the case of Golden Canal Co. Southworth, 13 Colo. 135. 
 vs. Bright, 8 Colo. 147, it was held
 
 § 563, 564] COLORADO. 731 
 
 appropriation of water of the several ditches, canals and 
 reservoirs in such water district, concerning which testimony 
 shall have been oflfered, each according to the time of its said 
 construction and enlargement, or enlargements or extensions, 
 with the amount of water which shall be held to have been 
 appropriated by such construction and enlargements or exten- 
 sions, describing such amount by cubic feet per second of 
 time if the evidence shall show sufficient data to ascertain 
 such cubic feet, and if not, by width, depth and grade and 
 such other description as will most certainly and conveniently 
 show the amount of water intended as the capacity of such 
 ditch, canal or reser^'oir, in such decree. The Court shall 
 further order that each and every party interested shall 
 receive from the Clerk a certificate under seal of the Court 
 showing the date or dates and amount or amounts of appropria- 
 tions adjudged in favor of such ditch, canal or reservoir under 
 and by virtue of the construction, extensions and enlargements 
 thereof, severally; also specifying the number of said ditch 
 and of each priority to which the same may be entitled by 
 reason of such construction, extension and enlargements. ^ 
 The holder of such certificate shall exhibit the same to the 
 Water Commissioner of the district when he commences the 
 exercise of his duties, and said certificate shall be the warrant 
 of authority to said Water Commissioner for regulating the 
 flow of water in relation to such ditch, canal or reservoir. 
 
 §564. Referees, Hearing Before.— Sec. 1772 provides that 
 if for any cause the judge of said Court shall deem it imprac- 
 ticable or inexpedient to proceed to hear such evidence in 
 open Court he shall make and cause to be entered of record an 
 order appointing some discreet person, properly qualified, a 
 referee of said Court to whom shall be referred the statement 
 of claim on file in said matter, the matter of taking evidence 
 and reporting the same, making an abstract and findings upon 
 the same, and preparing a decree in said adjudication.^ 
 
 1 See Platte Water Co. vs. North 2 in the case of Union Colony 
 
 Colo. Irr. Co.. 12 Colo. 529; Far- vs. Klliott, 5 Colo. 373, the Court 
 
 mer's High .Line & Canal Co. vs. held that where a referee was 
 
 Southworth. 13 Colo. 135. appointed to take the testimony
 
 732 COLORADO. [§ 564, 565 
 
 Specific rules are then laid down as to the proceedings 
 before the referee and the taking of the testimony. The 
 referee shall make a separate finding of fact connected with 
 each ditch, canal and reservoir, touching which evidence shall 
 have been offered; and he shall also prepare a draft of a decree 
 in accordance with his said finding; which decree so prepared 
 by him shall be returned with his report to the Court, and he 
 shall file his report with said evidence, abstract and findings, 
 and said decree with the Clerk of the Court, and inform the 
 Judge of so doing without delaj'. 
 
 Upon the filing of said report the Court shall cause an order 
 to be entered setting some day as soon as practicable when 
 the Court shall proceed to hear and determine the report; at 
 which time any party interested may appear and move excep- 
 tions to any matter in the findings or decree made by said 
 referee, and after hearing the same the Court shall, if the 
 decree be approved, cause the same to be entered of record or 
 otherwise such modifications thereof or other decree as shall 
 be found just and conformable to the evidence.* 
 
 § 5()5. — Appeals, how Taken. — Section 1789 provides that 
 any of the parties who feel aggrieved by an}' portion of such 
 decree may have an appeal from the District Court to the 
 Supreme Court; and specific rules of proceedure are laid 
 down for such appeals. 
 
 Sec. 1793 provides that: The Supreme Court, in all cases 
 in which judgment is rendered, and any part of the decree 
 appealed from is reversed and in which it may be practicable, 
 shall make such decree in the matters involved in the appeal 
 as should have been made by the District Court, or direct in 
 what manner the decree of that Court shall be amended.''^ 
 
 by a district judge, and the rules viewed Dorr vs. Hammond, 7 Colo, 
 
 made b)- said judge in relation to 80. 
 
 the taking of proofs to adjudicate 2 See Golden Canal Co. vs. Bright, 
 
 priority are alleged to be inade- 8 Colo. 155; Dorr vs. Hammond, 7 
 
 quate and illegal, mandamus will Colo. 80. 
 
 not lie to compel said judge to It is held that where proofs are 
 
 change the rules made. . mainly taken by a master or ref- 
 
 1 The referee's judgment on the eree it is the duty of the Supreme 
 
 weight of evidence may be re- Court to sift and weigh all the
 
 § 566] COLORADO. 733 
 
 § 5(>(>. Water Divisions. — Division Siiperinteiulents. — 
 
 Section 1802^ provides, that for the better regulation of the 
 distribution of water for irrigation among the several ditches, 
 etc., into which such water may be lawfully taken, in times 
 of scarcity thereof, the water districts shall be constituted 
 into water divisions. The law provides that other divisions 
 maj^ be constituted from time to time by acts of the Governor 
 when it shall appear to him expedient to do so upon petition 
 of citizens interested. 
 
 By an Act, approved April 4, 1887,- it is provided that the 
 Governor shall appoint a Superintendent of Irrigation for each 
 of the water divisions of the State, to hold office for two years. 
 The duties of said Superintendent are prescribed as having 
 the general control over the Water Commissioners of the 
 several districts within his division. "He shall, under the 
 general supervision of the State Engineer, execute the laws 
 of the State relative to the distribution of water, in accord- 
 ance with the rights of priority of appropriation, as established 
 by judicial decrees, and perform such other functions as may 
 be assigned to him by the State Engineer." He shall be 
 governed by the laws in force, but shall have authorit}- to 
 make such other regulations to secure the equal and fair dis- 
 tribution of water, in accordance with the rights of priority 
 of appropriation as may in his judgment be needed in his 
 division. The Act provides that an appeal may be made 
 
 evidence, with a view to a just taken at a previous trial of the 
 
 determination, uninfluenced by case or some branch of the same 
 
 the proposition that the Court controversy, and also upon oral 
 
 below had superior facilities to testimony taken at the trial, that 
 
 judge of the credibility of wit- the Appellate Court should not 
 
 nesses. Bates vs. Wilson, 14 Colo find a judgment for itself upon 
 
 140; Jackson vs. Allen, 4 Colo. 268; the testimony, but should affirm 
 
 Sieber vs. Frink, 7 Colo. 152; :Mil. the judgment below, on finding 
 
 ler vs. Taylor, 6. Colo. 45. it, upon the whole record sus- 
 
 But it was held in the case of tained by the evidence. 
 
 Bugh vs. Rominger(Colo.),24Pac. i General Laws of Colo. 18.S3, 
 
 Rep. 1046, that in an action in- Sees. 1802-1806; Mills' .\nn. vStat. 
 
 volving the rights of several par- Sees. 2440-2457. 
 
 ties to the waters of a certain - Session Laws, 1887, page 295; 
 
 stream heard upon testimon\- IVIills' .\nn. Stat. Sees. 2447-2457.
 
 734 COLORADO. [§ 566, 567 
 
 from any order of the Division Superintendent to the State 
 Engineer. The Superintendent must keep a register of pri- 
 orities within which he shall enter and preserve certified 
 copies of the decrees of the Courts. All Water Commissioners 
 must make their reports to the Superintendents, and provis- 
 ions are made as to what those reports must contain. 
 
 §567. State Engineer. — Duties of. — On March 30, 1889, 
 there was approved an Act providing for the appointment of 
 a State Engineer, ^ whose duties are prescribed relative to the 
 subject of irrigation as follows. "The State Engineer shall 
 have general supervising control over the public waters of the 
 State. He shall make or cause to be made careful measure- 
 ments of the flow of the public streams of the State, from which 
 water is diverted for any purpose, and compute the discharge 
 of the same. He shall also collect all necessary data and 
 information regarding the location, size, cost and capacit\" of 
 dams and reservoirs hereafter to be constructed, and like data 
 regarding the feasibility and economical construction of reser- 
 voirs on eligible sites, of which he may obtain information, 
 and the useful purposes to which the water from the same 
 may be put. He shall also collect all data and information 
 regarding the snow-fall in the mountains each season, for the 
 purpose of predicting the probable flow of water in the 
 streams of the State and publish the same." It is also his 
 duty to approve the plans and designs for the construction 
 and repair of all dams or reservoir embankments which shall 
 be built within the State, which shall equal or exceed ten feet 
 in height. He shall also have general charge over the divi- 
 sion Water Superintendents and the district Water Commis- 
 sioners. He shall measure the flow of the water at the head 
 of any ditch, canal or reservoir, pursuant to any decree ren- 
 dered by any Court, establishing the claims of priority-. And 
 he shall compute and arrange in tabular form the amount of 
 water that will pass down such ditch or canal, and shall fur- 
 
 1 See L,aws 1889. p.. 371; Mills' the advice and consent of the Sen- 
 Ann. Stat. Sees. 2458, 2469. ate; In re Question by Govenor 12 
 It is held that the Governor may Colo. 400. 
 appoint a State Engineer without
 
 § 567, 568] COLORADO. 735 
 
 nish a copy of anj- statement thereof to any Water Commis- 
 sioner or division Superintendent having control of such 
 ditch. He shall use in all his calculations, measurements, 
 records and reports, the cubic foot per second as the unit of 
 measurement of flowing water, and the cubic foot as the unit 
 of measurement of volume. 
 
 § 568. Regulation of the Distribution of Water.— On March 
 19, 1887, there was approved " An Act regulatingthe distribu- 
 tion of water, the superintendence of canals or ditches, used 
 for the purposes of irrigation, and providing a penalty for the 
 violation thereof." ^ 
 
 Sec. I of said Act, as amended in 1893, provides as follows: 
 Every person or company owning or controlling any canal or 
 ditch, used for the purposes of irrigation, and carrying water 
 for pay, shall, when demanded by the user during the time 
 from April i, until November i, in each 5^ear, keep a flow of 
 water therein, so far as may be reasonably practicable, suf- 
 ficient to reach the requirements of all persons as are properly 
 entitled to the use of water therefrom, to the extent, if neces- 
 sary, to which such person may be entitled to water, and no 
 more; provided, however, that whenever the sources of supph- 
 from which the water is obtained are not sufficiently free from 
 ice, or the volume therein is too low and inadequate for that 
 purpose, then such canal shall be kept with as full a flow of 
 water therein as may be practicable, subject, however, to the 
 rights of priorities from the streams or other sources as pro- 
 vided by law and the necessity of cleaning, repairing and 
 maintaining the same in good condition. ^ 
 
 The Act provides that the ditches are to be kept in good 
 repair and ready to receive water by April 15, in each year; 
 that a multiplicity of outlets shall at all times be avoided so 
 far as practicable; that any person having charge of any ditch 
 who shall wilfully neglect or refuse to deliver water as in the 
 Act provided, or any person who shall prevent or interfere 
 with the proper delivery of water, shall be guilty of misde- 
 
 ll^awsiSSy, p. 304; Mills' Ann. Slat., Sees. 22S7-2294. 2j^awsiS93, 
 p. 299.
 
 736 COLORADO. [§ 568-570 
 
 meaner; that any Water Commissioner who shall wilful!}^ 
 neglect or refuse, after being called upon in accordance with 
 section 1758 of the General Statutes, to promptly measure water 
 from the stream or source of supply shall also be deemed 
 guilty of a misdemeanor.' 
 
 §56^. Water for Domestic Purposes. — On April i, 1891, 
 there was approved "An Act in relation to water for domestic 
 purposes." - 
 
 Section i of which Act provides: " Water claimed and ap- 
 propriated for domestic purposes shall not be employed or 
 used for irrigation or for application to land or plants in any 
 manner to any extent whatever;" and any person claiming 
 the right to divert water for domestic purposes who shall per- 
 mit the water so diverted to be applied for other than domestic 
 purposes to the injury of any other person entitled to use such 
 water for irrigation shall be deemed guilt}' of a misdemeanor. 
 Each day of such improper application of water shall be 
 deemed a separate offense. 
 
 § 570. Conveyjince of Water Ria;Iits.— On April, 7, 1893, 
 there was approved " An Act relating to the conveyance of 
 water rights." -^ 
 
 Said Act provides: "In the conveyance of water rights 
 hereafter made in this State in all cases except where the 
 ownership of stock in ditch companies or other companies 
 constitutes the ownership of a water-right, the same formali- 
 
 1 See also Act approved April 4, 1889, "To provide for erecting 
 1887, "To define, prohibit, punish head-gates, waste-gates, locks, 
 and restrain extortion and other fastenings, and paj-ing the ex- 
 abuses in the management of penses thereof." Stat. 1889, p. 
 ditches, canals and reservoirs." 161. 
 Stat. 1887, p. 308. See also Act approved April 17, 
 
 See also Act approved April 4, 1889, "To establish and define 
 
 1887, "To provide for the better priority of appropriation of water 
 
 protection of water rights, and to drained from sources other than 
 
 declare the liability in damages natural streams." Stat. 1889, p. 
 
 for the infringement thereof. 215. 
 
 Stat. 1887, p. 3T2. 2 See Laws, 1891, p. 402. 
 
 Also see Act approved April 17, 3 See Laws, 1893, p. 298.
 
 § 570, 571] coLOKADO. 737 
 
 ties shall be observed and complied with as in the conveyance 
 of real estate." 
 
 It seems to have been the law in the State before this enact- 
 ment that water rights and ditches were real and not personal 
 property.^ 
 
 III. Irrigation Ditch Corporations. 
 
 § 571. Corporations.— How Organized. — Right of Way. 
 
 Sees. 308 to 315^ provide for the organization and control of 
 ditch companies. 
 
 Sec. 308 provides that whenever three or more persons as- 
 sociate to form a corporation for the purpose of constructing a 
 ditch, reservoir, pipe line or any thereof for the purpose of 
 conveying water from any natural source of supply they shall 
 specify in their certificate " the stream, channel or source 
 from which the water is to be taken; the point or place at or 
 near which the water is to be taken out; the location as near 
 as may be of any reservoir intended to be constructed ; the 
 line as near as may be of any ditch or pipe line intended to be 
 constructed, and the use to which the water is intended to be 
 applied." -^ 
 
 Sec. 309 as amended provides that any ditch, reservoir or 
 pipe line company formed under the provisions of that chapter 
 shall have the right of way over the line named in the certi- 
 ficate, and shall also have the right to run water from the 
 stream or source named in the certificate through its ditch, 
 and store the same in any reservoir of the company when not 
 needed for immediate use. But the line proposed shall not 
 interfere with any other ditch or works having prior rights, 
 except the right to cross by pipe or flume; nor shall the water 
 of any water-course be diverted to the detriment of any person 
 or persons having priority of right thereto.^ 
 
 1 Yunker vs. Nichols, 1 Colo. -^ As ainemled by .Vet ajjjjroved 
 551; Schilling vs. Rominger, 4 April 9, 1891; see Laws, 1891, p. 
 Colo. 100. See also Bailey vs. 97. 
 
 Platte D. Co., 12 Colo. 234, as to 4 As amended by Act ai)prove(l 
 the right to sell a right of way. April 19, 1891; see Laws, 1891, p- 
 
 2 Gen. Stat. Colo. 1883. 98.
 
 738 COLORADO. [§ 572 
 
 § 572. Same.— Assessments. — When Compelled to l\ir- 
 iiish Water. — Sec. 310 provides that such corporation shall 
 have power to make an assessment on the capital stock thereof. 
 But no such assessment shall be made unless the question of 
 making the same shall first be submitted to the stockholders 
 of said corporation. 
 
 "Sec. 311. Any company constructing a ditch under the 
 provisions of this Act shall furnish water to the class of per- 
 sons using the water in the way named in the certificate, in 
 the way the water is designated to be used, whether miners, 
 mill men, farmers or for domestic use, whenever they shall 
 have water in their ditch unsold, and shall at all times give 
 the preference to use of the water in said ditch to the class 
 named in the certificate; the rates at which water shall be 
 furnished to be fixed by the County Commissioners as soon 
 as such ditch shall be completed and prepared to furnish 
 water." ^ 
 
 Sec. 312 provides that every ditch company organized 
 under the provisions of the Act shall be required to keep its 
 ditch in good condition so that the water shall not be allowed 
 to escape from the same to the injury of any mining claim, 
 road, ditch, or other property; and the company must flume 
 the ditch so far as necessary to protect property from the 
 water of the same.^ 
 
 The priority of right mentioned Combs vs. Agricultural Ditch Co., 
 
 in this section is only acquired by 17 Colo. 196. 
 
 priority of appropriation. Coffin 2 it has been held by the Su- 
 
 vs.Left Hand Ditch Co. 6 C0I0.447. prenie Court that a ditch company 
 
 1 This section expressly com- is liable for damages caused by 
 
 mands ditch companies, having allowing water to overflow the 
 
 water in their canals not taken, banks of its ditch and flood the 
 
 to furnish the same to the class lands of others. The liability 
 
 of persons using it in the manner arises from failing to exercise 
 
 named in the articles of incorpor- ordinary care in preventing the 
 
 alion; the declaration therein that escape of the water. Platte & 
 
 this rate shall be fixed by the Denver Ditch Co. vs. Anderson, 8 
 
 County Commissioners must be Colo. 131; Denver City Irrigation 
 
 taken with the constitutional & Water Co. vs. Middaugh, 12 
 
 condition attached. Wheeler vs. Colo 443- Greely Irrigating Co.vs. 
 
 North Colo. Ir. Co., 10 Colo. 595; House, 14 Colo. 549. See Cush-
 
 § 572, 573] COLORADO. 739 
 
 A provision is also made for the consolidation oi ditch 
 companies which derive their supply of water for their re- 
 spective ditches or canals from the same head-gate or gates 
 or from the same source or sources of supply. 
 
 Sec. 314 provides that any company formed for the purpose 
 of constructing a ditch shall within ninety days from the date 
 of its certificate, commence work on such ditch and shall 
 prosecute the same with due diligence until the same is com- 
 pleted, and the time of completion of any such ditch shall not 
 extend beyond the period of two years from the time work 
 was commenced; and any company failing in these require- 
 ments shall forfeit all right to the water so claimed, and the 
 same shall be subject to be claimed by any other company. 
 
 Sec. 338, as amended, provides for the right to condemn 
 lands by any corporation for the right-of-way for ditches or 
 canals or for any lawful purpose connected with the opera- 
 tions of the company.^ 
 
 § 573. Riparian Rights in Colorado.— The statutes of 
 Colorado seem to entirely ignore the riparian rights as known 
 under the common law, of persons owning lands through 
 which or adjoining which streams flow. In the case of Cofi&n 
 us. Left Hand Ditch Co.^ it was held that the doctrine of 
 prior appropriation had existed from the earliest appropria- 
 tions of water within the boundaries of the State. And it 
 was also held that the common law doctrine of riparian rights 
 was unsuited to that State. ^ 
 
 man vs. Highland D. Co., Colo. Katon vs. Larimer & W. Res. Co. 
 
 App., 33 Pac. Rep. 344, as to lia- Colo. App. 33 Pac. Rep. 278. 
 
 bility for pollution. As to injunction against corpor- 
 
 1 As to the right of stockholders ations, see Farmers' I. D. Co. vs. 
 
 to change point of diversion from Agricultural D. Co. Ct. of App. 32 
 
 one ranch to another, see Knowls Pac. Rep, 722. 
 
 vs. Clear Creek P. R. & M. O. Co. '^ 6 Colo. 443- 
 
 (Colo.), 32 Pac. Rep. 279. '^ See case of Hammon.l vs. Rose 
 
 As to damages to individual 11 Colo. 524; Thomas vs. Gmrard, 
 
 stockholders for loss of crops, see 6 Colo. 530; Armstrong vs. Lari- 
 mer D. Co. T Colo. App. 49-
 
 INDEX. 
 
 [The references are to the Sections.] 
 
 A. 
 
 ABANDONMENT, DOCTRINE OF. 
 
 (See Appropriation; Sale of Water Rights.) 
 Express Abandonment, 253. 
 
 By failure to complete works, 253. 
 
 May be made of part of the water all of the time, 254. 
 
 May be made of all or part of the water part of the time, 254. 
 
 All water permitted to escape without any attempt to recap- 
 ture it is abandonment, 254. 
 
 Is made by a verbal sale, 253. 
 Implied abandonment, 255. 
 Abandonment when presumed, 257, 258. 
 
 May be made of part of the water all the time, 254. 
 
 May be made of all or part of the water part of the time, 254. 
 Abandonment by adverse possession, 256. (See adverse possession; 
 
 Prescription.) 
 Effect of an abandonment, 259. 
 Subsequent appropriators may take waters abandoned, 259. 
 
 ABATEMENT. 
 
 (See Nuisance; Actions; Remedies.) 
 
 Abatement of nuisance, 333. 
 •ACCELERATION. 
 
 (See Riparian Proprietors; Riparian Rights.) 
 
 Of flow of stream, 61. 
 
 ACCESS. 
 
 (See Accretion; Riparian Rights.) 
 Private right of, defined, 64. 
 Right of, not lost by accretions, 82. 
 
 ACCRETIONS. 
 (See Access.) 
 Belong to riparian owners, 82.
 
 742 INDEX. * 
 
 ACEQUIAS. 
 
 Construction and management of, in New Mexico, 539-542. 
 
 Construction and management of, in Arizona, 533-535- 
 
 Overseers of, and their duties, 535-541- (vSee Arizona; New Mexico.) 
 
 ACTIONS. 
 
 (See Remedies, Damages, Injuries.) 
 
 Will lie if positive injury is caused, 249. 
 
 Right of, under common law, for diminution of water, 75. 
 
 Legal and equitable relief in same, allowed when, 322-323. 
 
 At Law, 324-328, 
 
 For damages caused by ditches, 324, 325. 
 
 For damages for unlawful diversion, 326, 330. 331. 
 
 For injuries to ditches, 245. 
 
 Parties to, for damages, 327. 
 
 For the abatement of a nuisance, will lie when, 333. 
 
 Will lie when no actual damages are shown, when, 321. 
 
 In Equity, 329-337- 
 
 To compel ditch companies to furnish water, 335. 
 
 To restrain unlawful diversion of water, 330, 331, 332. 
 
 For confirmation of bonds of irrigation district, 393. 
 
 For confirmation of organization of irrigation district, 392. 
 
 To quiet title to waters, 336. 
 
 To restrain pollution of waters, 252, 350-352. 
 (See Damages; Remedies; Pollution; Diversion.) 
 
 ACT OF GOD. 
 
 When a defence for injury, 314, 315, 324. 
 What is an, 314, 315, 324. 
 
 ADVERSE POSSESSION. 
 
 (See Abandonment; Prescription; Abandonment.) 
 May work an abandonment, 256. 
 Rights that may be acquired by, 293. 
 
 ADVERSE USER. 
 
 (See Prescription; Abandonment.) 
 What rights may be acquired by, 293. 
 May work an abandonment, 256. 
 
 AFRICA. 
 
 Irrigation in, 19. 
 
 Egypt, 10, II, 19. 
 Sahara Desert, 19. 
 French Algeria, 19.
 
 INDEX. 743 
 
 AGRICULTURE. (See Irrigation.) 
 
 Application of Water for purpose of, 5. 7. 
 Department of, 25. 
 Report of, on irrigation in 1886, 25. 
 Estimate of area under cultivation in 1891 by, 27, 
 How benefited b}' irrigation, i, 9. 
 
 ALGERIA. 
 Irrigation in, 12, 19. 
 
 ALIENS. 
 
 May appropriate and hold water rights, when, 155. 
 May transfer a good title to water rights, when, 155. 
 Grant of water right, not an abandonment of the same, 155. 
 (See abandonment; appropriation of waters.) 
 
 ALLUVION. 
 
 (See Accretions; Riparian Rights.) 
 Right of riparian proprietors to, 82. 
 
 ANCIENTS. 
 
 Skill of, 17. 
 APPLICATION OF WATER. 
 
 (See Beneficial Use; Appropriation of Waters; Method of Appropri- 
 ation.) 
 
 There must be an actual, for a valid appropriation, 164, 
 
 Must be for beneficial use, 150-153. 
 
 Must be an intention of, to a beneficial use, 157, 158. 
 
 All waters diverted must be applied, 165, 166. 
 
 APPROPRIATION OF WATERS. 
 
 (See Beneficial Use; Method of Appropriation; Application of Waters; 
 Prior Appropriator; Water Rights; Subsequent Appropriators; 
 Riparian Owners.) 
 No superior right at common law acqi^ired by, 80, 81. 
 As against the United States, 101-117. 
 Essentials of an, 150-154. 
 
 Notice of, must be given of intention to a])ply to a bent-ficial 
 
 use, 158. 
 Method by whicli, is affected, 155-171. 
 Physical acts necessary to constitute a valid, 159. 
 Construction of works must be comnu-iiced for, within a reas- 
 onable time, 1 59-161. 
 Construction of works must he completed for, within a reas- 
 onable time, 160, 161. 
 There must be an actual diversion of the water to constitute a 
 valid, 162, 163.
 
 744 iXDEX. 
 
 APPROPRIATION OF WATERS.— a>w/'/«//^fl'. 
 
 There must be actual application and use of water appropri 
 
 ated, 164. 
 Water must be applied to some beneficial use or purpose, 161, 
 
 225-230. 
 
 Abandonment of. 
 
 By failure to complete works, 253. 
 
 Is made by a verbal sale, 253. 
 
 May be made of all of the water part of the time, 254. 
 
 Is worked by adverse possession, 256, 293-297. 
 
 Origin of Right of, 97-121. 
 
 Early history of, 97-108. 
 
 Cause of the adoption of doctrine of, 97-99. 
 
 Importance of, in mining operations, 99-102. 
 
 Common law rules inapplicable to the arid region, 98, 99. 
 
 Mining rules and customs of, 102-108. 
 
 First legislation upon the subject by State of California, 103. 
 
 Earl}' Court decisions in California regarding, 104-107. 
 
 Decisions regarding, first based upon doctrine of presumption, 
 109, no. ** 
 
 As against the Government of the United States, in. 
 
 Act of Congress of July 26, i856, sanctioning, 113. 
 
 Cause of passage of Act of Congress of Juh' 26, 1866, 114. 
 
 Legal effect of the Act, 115. 
 
 Act of Congress of July 9, 1870, sanctioning, 116, 117. 
 
 Acts of Congress subsequent to 1870, sanctioning, 1 18-120. 
 
 Doctrine of, first based upon presumption, 109, no. 
 
 "Views of the United States Supreme Court as to cause of pas- 
 sage of Act of Congress of July 26, 1866, 114. 
 
 Rights Acquired by Appropriation by one as against other Appro- 
 priators, 173-184. 
 General rights acquired by prior appropriators, 173. 
 Views of United States Supreme Court regarding, 174. 
 General rights i-.cquired by subsequent appropriators, 175, 176. 
 Periodical, 177, 178. 
 
 Rights acquired in surplus, or residue of water by, 179, 180. 
 Successive, 181. 
 
 Subsequent appropriation before works of the first are com- 
 pleted, 182. 
 Distribution of increase in volume of stream, 183. 
 Doctrine of relation as between appropriators, 184. 
 Rights relate back to first step taken, when, 168, 169. 
 He who is first in time has the superior right, 173, 174. 
 True test of the amount of water actualh- applied to some 
 beneficial use, 161, 225-230.
 
 INDEX. 745 
 
 APPROPRIATION OF WATERS.— Co;i/i;iued. 
 As Against a Congressional Grantee of Government, 185-189. 
 
 Appropriation of waters prior to grant, 185, 186. 
 
 Court decisions on subject, 187. 
 
 Doctrine of relation as applied to Congressional grants, 189. 
 
 If prior to grants, are paramount in right, 185-187. 
 As Against Settlers on Land, 191-220. 
 
 Riparian rights in the arid region, 191. 
 
 Government patent in the absence of statute, 192-206. 
 
 Common law of England, applicable when, 200, 205, 206. 
 
 Doctrine of Vansickle vs. Haines, criticised, 102-106. 
 
 Rights acquired by, prior to Acts of 1866, 192. 
 Nature and Extent of Rights Acquired by, 222-270. 
 
 Property in ditches and canals, 224. 
 
 Amount of water that may be diverted by an appropriation, 
 225-229. 
 
 Nature and extent of right acquired, how determined, 230. 
 
 Special purpose often determines extent, 231, 232. 
 
 Right of change of use of water, 233, 234. 
 
 Amount actually needed for purpose of appropriation, 235, 236, 
 
 237- 
 
 Appropriator not limited to first amount used, 238, 239. 
 
 Theory of equitable division of water controverted, 240, 241. 
 
 Right to remove obstructions from stream and ditch, 243. 
 
 Right to repair ditches, 245. 
 
 Right to use natural bed of stream to convey the water, 246. 
 
 Point where property right of appropriator begins, 247. 
 
 Right to natural flow of water at head of appropriator's ditch, 
 249. 
 
 Point of diversion of water may be changed, 248. 
 
 Pollution of water, 250-252. 
 
 Sale of water-rights, 
 
 Sale of water, 264-270. 
 
 Capacity of ditch as measure of extent of right, 225-230. 
 Doctrine of abandonment of, 253-259. 
 Doctrine of estoppel, 260-263. 
 
 Conveyance of water-rights and sale of water, 264-270. 
 Essentials of, for a beneficial use, 150-154. 
 
 Change of use by, does not prejudice rights acquired, 154, 233, 234. 
 Change of place of use by, does not prejudice rights acquired, 154. 
 Title to the soil unnecessary, 156. 
 Who are entitled to make, 155. 
 Aliens may make, 155. 
 True test of extent of the amount actually a])plied to some beneficial 
 
 use, 161, 225-230. 
 Water may be rediverted, when, by former, 163.
 
 746 INDEX. 
 
 APPROPRIATION OF WATERS.— Confimied. 
 
 All the water appropriated must be applied to some beneficial use, 
 
 165, 166. 
 Successive appropriations may be made of same water, 181. 
 Restricted by amount actually needed for purpose of, 235-237. 
 Not limited to first amount of water used, 238, 239. 
 Rights acquired b)- riparian proprietors, 272-279. 
 Rights acquired of, by prescription, 293-297. 
 Rights acquired under Mexican and Spanish laws, 289-292. 
 Rights acquired in subterranean waters, 298, 299. 
 Ditch companies, rights to, 310, 311. 
 Legislation in the various States and Territories concerning, 338- 
 
 569- 
 
 California, 338-396. 
 
 Nevada, 397-398. 
 
 Washington, 413-424. 
 
 Kansas, 425-442. 
 
 Utah, 443-457- 
 
 North Dakota, 458-467. 
 
 South Dakota, 468-477. 
 
 Wyoming, 478-496. 
 
 Oregon, 495-508. 
 
 Idaho, 509-517- 
 
 Nebraska, 518-521. 
 
 Texas, 522-529. 
 
 Arizona, 530-536- 
 
 New Mexico, 537-547- 
 
 Montana, 548-554. 
 
 Colorado, 555-569- 
 APPROPRIATORS. 
 
 (See Appropriation; Application of Waters; Water Rights; Riparian 
 
 Rights; Beneficial Use; Riparian Owners.) 
 Must give notice of intent to apply water to beneficial use, 157, 158. 
 Physical acts necessary by, 159. 
 Must use reasonable diligence in completing works for diversion, 159, 
 
 160, 161, 168, 169. 
 Pecuniary inability of, will not excuse dela}-, 160. 
 Rights acquired b}*, against others, 172-221. 
 May be at same time riparian proprietors, 281-284. 
 Rights acquired by, against other appropriators, 173-184. 
 Rights acquired by, against Congressional grantee of Government, 
 
 185-189. 
 Rights acquired bj-, against settlers, 191-220. 
 Not limited to first amount of water used, 238, 239. 
 Doctrine of estoppel applies to, when, 263. 
 Must remove obstructions from stream and ditch, 243.
 
 INDEX. 
 
 747 
 
 APPROPRI ATORS.— Cc'?///////<;(/. 
 
 Are tenants in common when, 301-306. 
 
 Right to use channel of natural stream for ditch, 246. 
 
 Liable for injuries when, 245, 318, 319. 
 
 Right of prior, to have water flow down to head of ditch, 248, 249. 
 
 Right to an injunction, 332. 
 
 Prescription against rights of, 294. 
 
 Abandonment b}-, 253, 254, 257, 258. 
 
 May be aliens when, 155. 
 
 No superior right acquired at common law by, 80, 81. 
 
 Distribution in increase in volume among, 183. 
 
 Doctrine of relation between, 168, 169, 184. 
 
 Rights as against Congressional grantees, 185-189. 
 
 Rights as against settlers, 191-220. 
 
 Nature and extent of rights acquired by, 272-279. 
 
 Rights acquired by, in subterranean waters, 298, 299. 
 
 Theory of " Equitable Division " between, controverted, 240-242. 
 
 Equity has power to determine extent of rights ])etween, 337. 
 
 APPURTENANCE. 
 (See Sale of Water Rights.) 
 When a water right is an, to land, 267. 
 A conveyance without reservation conveys, 267, 268, 269. 
 May be reserved if special mention is made in the deed, 267-270. 
 Colorado rule as to water rights being an, 270. 
 California rule as to water rights being an, 269. 
 Utah rule, 448. 
 
 ARID REGION OF THE UNITED STATES. 
 Value of irrigation in, 2, 21. 
 Population of, 21. 
 States included within, 22, 96. 
 Statutory laws of States within, 338-569. 
 Census bulletin as to area irrigated in 1889, 26. 
 Doctrine of Water rights in, 96-122. 
 Riparian rights in, abolished or modified, 96. 
 Common law inapplicable in, 98. 
 
 Modification of genei-al rules of, by local statutory laws, 170. 
 Appropriation of waters by riparian proprietors, 272. 
 Doctrine of riparian rights, and irrigation in, 273-279. 
 Riparian rights in various States and Territories of. (See riparian 
 rights.) 
 
 ARID REGION DOCTRINE. 
 
 (See Arid Region of United States; .Appropriation of Water; Riparian 
 
 Rights; Common Law Theories.) 
 Cause of change from common law to, 97-99. 
 Early history of, loo-iio.
 
 748 INDEX. 
 
 ARID REGION DOCTKl'Nn.— Conimued. 
 First based upon miniag rules and customs, 103. 
 First legislation by California sanctioning, 103. • 
 Early court decisions regarding, 104-108, 
 First based upon doctrine of presumption, 109,110. 
 Appropriation according to, as against the United States. 111,114, 1^5. 
 
 220. 
 United States Supreme Court upon subject, 114. 
 Rights acquired under, between appropriators, 173-184. 
 Rights acquired under, as against settleis, 19X-220. 
 Rights acquired under, as against Congressional grantees, 185-189. 
 Nature and extent of rights acquired under, 222-270. 
 
 ARIZONA. 
 
 (See Tahua Nations.) 
 
 Irrigation by prehistoric races of, 14-17. 
 
 Particular features of, 530. 
 
 Modern irrigation in, 531. 
 
 Water Rights in general in, 532, 
 
 Statutory enactments of, 532-535. 
 
 Irrigating canals and acequias in, 534. 
 
 Overseers of acequias and their duties, 535. 
 
 Riparian rights in, 536. 
 
 All streams declared public in, 533. 
 
 Construction of ditches and canals in, 534. 
 
 Public Acequias 534. 
 
 Apportionment of water in times of scarcity, 535. 
 
 Obstructions in streams forbidden when. 533. 
 
 Right of way for ditches in, 533, 534. 
 
 ARTESIAN WATERS. 
 
 (See Artesian Wells; Subterranean Waters.) 
 
 Investigation into by Congress, 25. 
 
 Statistics concerning, 33. 
 
 Nature and extent of rights acquired in, 78, 79, 298, 299 
 
 ARTESIAN WELLS. 
 
 (See Artesian Waters; Subterranean Waters; Statutory Enactments 
 Concerning, in Part Second.) 
 
 Irrigation by, in Sahara Desert, 19. 
 
 Supply from, 33. 
 
 Statistics concerning, 33. 
 
 In Kansas, 436. 
 
 In North Dakota, 464. 
 
 In South Dakota, 459-476. 
 ARTIFICIAL WATER-COURSES. 
 
 (See Ditches and Canals; Appropriations of Water.) 
 
 Riparian rights in, 287.
 
 INDEX. 749 
 
 ASSESSMENTS. 
 
 (See Irrigation Districts; Corporations.) 
 
 ASSYRIA. 
 
 Irrigation in, 12. 
 AUSTRALIA. 
 
 Irrigation in, 20. 
 
 AZTECS. 
 Prehistoric works of, 14-16. 
 Irrigation by, 14-16. 
 
 B. 
 
 BABYLONIA. 
 
 Irrigation in Ancient, 12. 
 BANKS OF RIVERS. 
 
 (See Riparian Rights; Rivers.) 
 
 Defined, 43, 57. 
 
 Banks essential to a water-course, 39. 
 
 BENEFICIAL USE. 
 
 (See Appropriation of Water; Arid Region Doctrine.) 
 
 Of waters, 30. 
 
 Appropriation must be for, in order to be valid, 150, 151. 
 
 There must be an intention to apply to some, 150. 
 
 Appropriation may be made by a canal company if all the water is 
 
 applied to, 152, 153. 
 All of the water appropriated must be applied to, 161, 165, r66, 225- 
 
 230. 
 Failure to apply water to, works an abandonment, 254. 
 Special use often determines extent of appropriation, 231, 232. 
 Right to change use, 233, 234. 
 
 BOARD OF CONTROL. 
 
 (See Wyoming.) 
 Duties of, 487-489. 
 
 BONDS. 
 
 (See Irrigation District Law of Various States.) 
 
 Issuance and payment of, under California District Law, 367-371. 
 
 Proceedings for confirmation of, 393. 
 
 Washington law concerning, 428. 
 
 Kansas law concerning, 440. 
 . South Dakota law concerning, 472. 
 
 BOUNDARIES. 
 
 . (See Irrigation District I,aw.)
 
 750 INDEX. 
 
 BOUNDARIES.— a;«/z««.?rf. 
 Of irrigation districts, 360. 
 Including and excluding territory, note 360. 
 Of lands of riparian owners, 53-55. 
 
 BREAKING AWAY OF WORKS. 
 
 (See Ditch and Canal Companies; Construction of Works; Injuries; 
 
 Damages.) 
 Liability of ditch company for, 318. 
 
 BRIDGES. 
 
 (See Statutory Enactments of various States and Territories regard- 
 ing. 
 
 c 
 
 CALIFORNIA. 
 Irrigation in, 23. 
 
 Ownership of soil under fresh water navigable rivers in, 55. 
 Gold discovered in, 100, loi. 
 Modern irrigation in, 339 
 Irrigation laws of, in general, 340. 
 Statutory laws governing irrigation in, 341-388. 
 Rights of riparian proprietors exist in, 350. 
 An act to promote irrigation in, 352. 
 Laws adopted by civil code of, 351-353- 
 Rates at which water shall be sold at in, how fixed, 353. 
 Regulation and control of ditch companies, 354-357- 
 Appropriated water a public use, 354. 
 Duties of county supervisors of, 355. 
 Rights acquired by eminent domain in, 356, 357. 
 District Law of, 358-388. 
 
 The " Wright Law " in, 358. 
 
 Organization of irrigation districts, 359, 360. 
 
 What lands to be included in districts, 360. 
 
 Inclusion and exclusion of lands, 360, note. 
 
 Petition to Board of Supervisors, what to contain, 360. 
 
 Election for district, how conducted, 361-363. 
 
 Powers and duties of board over district, 364, 365. 
 
 Issuance of bonds of district, 367-369. 
 
 Bonds how paid, 369. 
 
 Assessments of real property, how levied and collected, 370- 
 
 375- 
 Lien of assessment, 372. 
 Sale of property to pay assessment, 374. 
 Acquisition of land and water rights, 365. 
 Contracts for construction of works, 378, 379. 
 Powers of Board of Directors, 364, 380. 
 Payment of claims, 379.
 
 INDEX. 751 
 
 CALIFORNIA.— a? ;///;/«^rf. 
 
 Limit of board to incur indebtedness, 382. 
 Apportionment of water, 364, 383. 
 Leasing of water by district, 387. 
 Disorganization and abandonment of districts, 388. 
 Construction of Irrigation District Law, 389-396. 
 Nature of irrigation districts, 389. 
 ■ Constitutionality of law, 390,391. 
 Confirmation of organization, 392. 
 Confirmation of bonds, 393. 
 
 Proceedings to include and exclude territory, 394, 395. 
 Dissolution of irrigation districts, 3S8, 396. 
 
 CANAL COMPANIES. 
 
 (See Ditch and Canal Companies; Appropriation of Water.) 
 
 Essentials of appropriation by, 152, 153. 
 
 Appropriations by, valid if all water used is applied to a beneficial 
 
 use, 152, 153. 
 Nature, powers, duties and liabilities of, 300-319. 
 Unincorporated, 301-306. 
 Incorporated, 307, 308. 
 Powers of ditch and, 309-317. 
 Liability of, 318, 319. 
 
 CANALS. 
 
 (See Appropriation; Ditches and Canals; Ditch and Canal Companies; 
 
 Construction of Ditches and Canals.) 
 Are not appurtenances but land, 124. 
 Diversion by means of, must be actual, 162, 163. 
 There must be an actual user of all the water in, 164. 
 Liability for damages caused by, 318. 
 Condemnation of right of way for, 94, 356, 357. 
 (See right of way.) 
 Must be constructed with reasonable diligence, 160, 161. 
 
 CARTHAGE. 
 
 Irrigation in ancient, 12 
 CATHOLIC MISSIONARIES. 
 
 Early irrigation by, in California, 23. 
 
 CENSUS BULLETIN. 
 
 Upon subject of irrigation in arid region, 26. 
 Upon subject of irrigation in sub-humid region. 26. 
 Upon subject of artesian wells, 33. 
 
 CENTRAL AMERICA 
 Irrigation in, 14.
 
 752 INDEX. - 
 
 CHANGE OF USE OF WATER. 
 
 (See Appropriation of Water; Statutory rule in States and Territories.) 
 May be made, provided rights of others are not injured, 233, 234. 
 May be made without prejudice to rights when, 154. 
 Can not be made if water was not all originally consumed to a use 
 where it is, 234. 
 
 CHANNEL. 
 
 Of stream may be used by ditch company as part of ditch or canal, 246. 
 
 Right to remove obstructions from channel of stream, 243. 
 
 Of navigable stream, belongs to the State, 53-55- 
 
 Of non-navigable streams belongs to riparian owner when, 56, 57. 
 
 CHINA. 
 
 Irrigation in, 10, 12. 
 
 SICILY. 
 
 Irrigation in, 12. 
 
 CITY. 
 
 (See Irrigation Districts.) 
 
 May be included in irrigation districts, 394, 395. 
 
 CIVIL LAW. 
 
 Rights to water acquired under, 16. 
 
 Mexican and Spanish laws similar to, 289-292. (See Mexican and 
 Spanish laws.) 
 
 CLASSIFICATION OF WATERS. 
 
 See Chapter II., Sees. 38-39. 
 CLEANSING STREAMS. (See Repairs.) 
 
 Rule in Colorado regarding, 568. 
 CODES. 
 
 (See Statutory Enactments of Various States and Territories.) 
 COLORADO. 
 
 Early irrigation in, 25. 
 First co-operative work in, 25. 
 Particular features of State, 555. 
 Irrigation in State, 555. 
 
 Statutory enactments regulating irrigation in, 556-568. 
 Constitutional provisions of, 556. 
 Provisions for State control of water, 559-564. 
 Water districts, 561. 
 
 Water Commissioners, and duties of, 561. 
 Water divisions, 566. 
 
 Division Superintendents, and duties of, 566. 
 State Engineer, and duties of, 561.
 
 INDEX. 733 
 
 COLORADO.— Continued. 
 
 Adjudication of water rights, 563-565. 
 Referees, hearings before, 564. 
 Appeals, how taken in, 565. 
 Regulation of distribution of water, 568. 
 
 Water appropriated for domestic purposes only cannot be used for 
 
 irrigation, 566. 
 Laws controlling irrigation ditch companies in, 571, 572. 
 Corporations, when compelled to furnish water, 572. 
 Riparian rights in, 573. 
 Conveyance of water-rights, 570. 
 
 COMMON CARRIERS. 
 
 (See Ditch and Canal companies.) 
 
 Ditch companies are not, 316. 
 
 Ditch and canal companies are public carriers in Washington, 421. 
 
 COMMON LAW OF ENGLAND. 
 
 (See Common! Law Theories; Riparian Rights.) 
 
 When adopted by the various States, 98, 99, 201. 
 
 Adopted in Vansickle vs. Haines, regardless of applicability, 200. 
 
 Upon laws governing waters discussed, 50-95. 
 
 Governing subterranean waters, 78, 79. 
 
 Prior appropriation of water not recognized under, 80, 8r. 
 
 Governing waters, inapplicable in arid region, 98, 99. 
 
 COMMON LAW THEORIES. 
 
 (See Common Law of England; Riparian Rights; Appropriation of 
 
 Water.) 
 Nature and extent of subject treated in volume, 50. 
 Property in fresh water streams under, 52-55. 
 Right to use of water for irrigation under, 68-76. 
 Right of diversion under, 60. 
 Irrigation under, practically impossible, 73-77. 
 Ordinary use of water under, 66-74. 
 Chancellor Kent's opinion, as to the use of water for irrigation 
 
 under 74. 
 Governing subterranean waters, 78-79. 
 Accretions and relictions, 82. 
 
 Prior appropriation of water not recognized under, 8o-8t. 
 Lakes and ponds, ])roperty in 86-88. 
 Public grant, 89. 
 Private grants under, 90-91. 
 Prescription under, 92. 
 License under, 93. 
 Right of eminent domain under, 94. 
 Inapplicable to arid region, 98-99.
 
 754 INDEX. 
 
 COMMON LAW THEORIES.— Con^imied. 
 
 Adoption of, by States, adopts only so much as is applicable, 98-99. 
 Regulated wholly by municipal law of the respective States, 135. 
 Nature of ownership in a water course under, 56. 
 Rights of riparian proprietors in general under, 57-58. 
 Reasonable use of water, 76-79. 
 Access to and from estate, 64. 
 Right of fishery under, 83-84. 
 
 COMPLAINT. 
 
 (See Remedies; Actions.) 
 COMMISSIONERS, COUNTY. 
 
 (See Irrigation Districts; Statutes in various States and Territories.) 
 
 COMPLETION OF WORKS FOR DIVERSION. 
 (See Subject under various States and Territories.) 
 Appropriation dates only from, when, 168, 169. 
 In California, 348. 
 
 CONDEMNATION. 
 
 (See Right of Way; Subject under various States and Territories; 
 Eminent Domain.) 
 
 Of water rights in California, 365. 
 Not allowed in Nevada, 411. 
 
 CONFIRMATION. 
 
 (See Irrigation Districts; California; Washington.) 
 Proceedings for, of bonds, 393. 
 Proceedings for, of organization, 392. 
 
 CONGRESSIONAL ACTS. 
 
 First investigation ordered by, 25. 
 
 Irrigation survey provided for by, in 1888, 25. 
 
 Special committee of investigation ordered by, in 1888, 25. 
 
 Investigation into rrtesian and underflow waters by, 25. 
 
 Act of July 26, 1866, 113 — 
 
 Patents issued after, take subject to water rights, 89, 113, 114. 
 
 Legal effect of Act of 1866, 115. 
 
 Construction of Act of 1866, in Vansickle vs. Haines, and 
 
 Union M. & M. Co. vs. Ferris, 195, 196. 
 Criticism of above construction, 198. 
 
 See general discussion on subject of criticism of above con- 
 struction, 191-206. 
 Act of 1866, simply to protect vested and accrued rights to 
 
 water, 198. 
 Patents of Government, since Act, take subject to all prior 
 appropriations, 207.
 
 INDEX. 755 
 
 CONGRESSIONAL ACTS.— Continued. 
 
 Act of July 9, 1870, amendatory and declaratory to Act of July 26, 
 
 1S66, 116, 117. 
 Act of March 3, 1877, to provide for sale of desert land; 118. 
 Act of March 3, 1S91, to provide for sale of desert lands, 119. 
 Act of 1889, 112. 
 Act of 1890, 120. 
 Future Acts of Congress upon the subject of irrigation, 122. 
 
 CONGRESSIONAL GRANTS. 
 
 (See Appropriation of Water; Riparian Rights.) 
 
 Appropriation of water as against, 185-189. 
 
 Are subject to prior appropriations of water, 1S5, 186. 
 
 United States Supreme Court on subject, 187. 
 
 If first, then riparian rights may attach, 188. 
 
 Doctrine of relation concerning, 189. 
 
 Doctrine of relation as between conflicting, 190. 
 
 CONNECTICUT. 
 
 Ownership of soil under fresh water navigable streams in, 54. 
 
 CONSTITUTIONAL LAW, 
 
 (See Irrigation Districts; States and Territories.) 
 Irrigation District Law in California is, 390, 391. 
 Same in Washington is, 423. 
 Governing water rights in Idaho, 516. 
 Governing water rights in Wyoming, 482, 483. 
 Governing water rights in Colorado, 556. 
 
 CONSTITUTIONAL PROVISIONS. 
 
 (See Subject under Various States and Territories.) 
 
 CONSTRUCTION OF DITCHES. 
 
 (See Ditch and Canal Companies; Legal Remedies; Damages.) 
 Duty of canal companies, relative to 314, 315. 
 Appropriator must construct ditches how, 244. 
 
 CONVEYANCE. 
 
 (See Sale of Water Rights; Sale of Water.) 
 
 CO-P A RT N K R S H I P . 
 
 (See Ditch and Canal Companies; Tenants in Common.) 
 
 CORPORATIONS. 
 
 (See Ditch and Canal Companies; Ai.propriation of Water; Subject 
 
 as Treated Under Various vStates and Territo.i.'s.) 
 Entitled to appropriate water when, 155. 
 In variouri States and Territories.
 
 756 INDEX. 
 
 CORPORATIONS. — Ct^wZ/ww/frf. 
 
 Oregon, 497-507. 
 Texas, 524. 
 North Dakota, 462. 
 South Dakota, 472. 
 Wyoming, 480. 
 New Mexico, 543. 
 Montana, 550-552. 
 Nebraska, 519. 
 Idaho, 511-513. 
 Colorado, 571-572. 
 
 CO-TENANCY. 
 (See Ditch and Canal Companies; Tenants in Common; Partnership.) 
 
 CUSTOMS. 
 (See Arid Region Doctrine; Appropriation.) 
 
 Of miners, 102-105. 
 
 Doctrine of appropriation originated in, loo-iio. 
 
 D. 
 
 DAMAGES. 
 (See .\ctions; Injuries; Legal Remedies; Construction of Ditches and 
 
 Canals.) 
 No, necessary for an actionable injur}-, 321. 
 Caused by ditches, 324, 325. 
 
 To prior appropriators for unlawful diversion, 326. 
 Parties in an action for, 327. 
 
 To riparian owners for unlawful diversion, 328. 
 For injuries to ditches, 345. 
 
 Injuries to ditches, owner of land liable in, 245. 
 Injuries to lands, owner of ditches liable in, 245. 
 
 DAMS. 
 
 (See Construction of Ditches and Canals; Riparian Rights.) 
 
 In navigable rivers, 40-42. 
 
 Care required in construction of, 314, 315. 
 
 Must be completed with all reasonable diligence, 359-361. 
 
 DELAWARE. 
 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 DESERT LAND. 
 (See Congressional Acts.) 
 
 Act of March 3, 1877, for reclamation and sale of, 118. 
 Act of March 3, 1891, for reclamation and sale of, 192.
 
 INDEX. 757 
 
 DIWGENCE. 
 Ditches and canals must be completed with, i6o, i6i. 
 Doctrine of relation when used, i6S, 169. 
 
 Required by statutes of vStates and Territories. (See subject under 
 various States and Territories.) 
 
 DISTRIBUTION OF WATER. 
 
 When volume of natural stream is increased, 183. 
 
 Increase belongs to several appropriators according to priority, 183. 
 
 Same rule applies when increase is by artificial means, 183. 
 
 Under Laws of State Control- 
 Colorado, 564 
 Wyoming, 490. 
 Utah, 448. 
 Kansas, 437. 
 
 DISPOSAL OF LANDS AND WATERS BY THE GOVERNMENT. 
 (See Public Lands and Waters.) 
 How accomplished, 136. 
 
 B}^ reservations by Government, 136, 137. 
 
 Donations for interior improvements, 137, 138. 
 
 Grants to States for school purposes, 139. 
 
 Grants to town sites, 140. 
 
 Homestead entries, 143, 144. 
 
 Public sale and private entry, 143, 144. 
 
 Right by military land warrants, 143, 144. 
 
 Desert entry, 143, 144. 
 Pre-existing water rights not effected by, 141. 
 Power of Government to attach conditions to grant, 147, 148. 
 
 DISTRICT LAW. 
 
 Of California, 358-396. 
 
 Of Washington, 222, 223. 
 
 Of Nevada, 410, 411. 
 
 Of Kansas, 439, 440. 
 
 Of Utah, 453-456. 
 
 Of North Dakota, 465, 466. 
 
 Of South Dakota, 472-485. 
 
 For sinking artesian wells in North Dakota, 465, 466. 
 
 For sinking artesian wells in vSouth Dakota, 472-475. 
 
 Statute of, and that of "State control" compared, 492. 
 
 Leasing water rights by California districts, 387. 
 
 Disorganization and abandonment of districts, 388-396. 
 
 DITCHES AND CANALS. 
 
 (See Appropriation; Ditch and Canal Companies; Canals.) 
 Must be completed without unreasonable delay, 160- 161.
 
 758 INDEX. 
 
 DITCHES AND CAN ALS.— a?«//««^af. 
 
 Capacity of, not the true measure of extent of appropriation, r6i. 
 
 Must be kept clean and in repair, 144. 
 
 Must be constructed carefully, 144. 
 
 Proprietor must remove obstructions from, 243. 
 
 Owners of land liable for injuries to, 245. 
 
 Owners of, liable for injuries by, 318. 
 
 Trespassers cannot replace by flumes, 245. 
 
 Natural bed of stream may be used for, 246. 
 
 Construction of, governed by statutes of various States, (see subject 
 
 under States and Territories.) 
 When owners of are tenants in common, 301-306. 
 DITCH AND CANAIy COMPANIES. 
 (See Ditches and Canals; Appropriation; Statutes of various States 
 
 and Territories.) 
 General laws controlling, 301-319. 
 Unincorporated ditch and canal companies, 301-306. 
 Tenants in common, 301, 302. 
 Incorporated, 307. 
 Irrigation Companies in general, 308. 
 
 Power of acquiring rights of way, 309. 
 
 Power of acquiring water-rights, 310-312. 
 
 Rights of appropriation, 310. 
 
 Acquisition of water rights by legislative grants, 312, 313. 
 
 General duties of, 314-317. 
 
 Construction of works by, 314, 315. 
 
 Are not common carriers, 316. 
 
 Are common carriers in Washington, 421. 
 
 Must furnish water to consumers, 317. 
 
 Liability of, 318, 319. 
 
 Liability of, under congressional acts, 318. 
 
 Liability for injury to rights of stockholders, 319. 
 
 Deemed public carriers in Washington, 421. 
 Statutory laws governing in: 
 
 Washington, 417-421. 
 
 North Dakota, 462. 
 
 South Dakota, 470. 
 
 Wj-oming, 480. 
 
 Oregon, 497-505- 
 
 Idaho, 51 1-513. 
 
 Texas, 524. 
 
 DIVERSION. 
 
 (See Appropriation; Ditch and Canal Companies; Riparian Rights; 
 
 Statutes of Various States and Territories.) 
 Of surface streams under common law, 67, 68. 
 Of subterranean waters under common law, 78, 79.
 
 INDEX. 759 
 
 DIVERSION.— Continued. 
 
 Cannot be constructive, but must be actual, 162, 163. 
 
 Arid region doctrine differs from common law in permitting, 162. 
 
 Amount of water that may be diverted under an appropriation, 225- 
 229. 
 
 Restricted to amount actually needed for purpose of appropriation, 
 235-237- 
 
 Extent of, limited by ditch at smallest point, not the true measure- 
 ment of, 237. 
 
 Point of, where right of appropriator first begins, 247. 
 
 Point of, may be changed, 248. 
 
 Of waters permitted for beneficial purposes, by Mexican laws, 290, 
 291. 
 
 Of water-course, from one rightfully entitled to use thereof, is a pri- 
 vate nuisance, 332. 
 
 DIVISIONS. 
 
 Water, in Wyoming, 484. 
 Water, in Colorado, 562. 
 
 DIVISION SUPERINTENDENTS. 
 Duties of, in Wyoming, 486-489. 
 Duties of, in Colorado, 562. 
 
 DONATIONS. 
 (See Congressional Acts; Disposal of Lands and Waters.) 
 By Government for internal improvements, 137, 138. 
 Cannot be made to the prejudice of pre-existing water-rights, 137, 
 138, 141. 
 
 DRAIN AG Iv. 
 {See Appropriation of Water; Beneficial Use.) 
 Diversion of water for, is not an appropriation, 150, 151. 
 
 EASEMENT. 
 
 (See Eminent Domain; Right of Way.) 
 Right of public to, for navigation, 42. 
 Right of way for ditch is not an, 224. 
 
 EGYPT. 
 
 Ancient knowledge of art in, lo, 11, 12. 
 Modern irrigation in, 19. 
 
 EJECTMENT. 
 
 Will not lie to recover a water-cour.se, 56. 
 (See Actio U.S.)
 
 760 INDEX. 
 
 ELECTION 
 
 (Irrigation District Law; Statutes of the Various States concerning.) 
 
 In California: 
 
 For organization of irrigation districts, 360, 361. 
 
 Of oflEicers for districts, 362, 363. 
 
 To authorize the issuance of bonds, 367. 
 
 To authorize reduction of bonded indebtedness, 386. 
 
 In Kansas: 
 
 For organization of irrigation districts, 439. 
 For issuance of bonds, 440. 
 
 In Utah: 
 
 For organization of irrigation districts, 453. 
 
 In North Dakota: 
 
 Organization of irrigation districts, 465. 
 
 In South Dakota: 
 
 Organization of irrigation districts, 471. 
 
 To issue bonds for constructibn of works, 472. 
 Of water masters in Idaho, 514. 
 Of overseers in Arizona, 535. 
 In New Mexico, of directors of acequias, 541. 
 
 EMINENT DOMAIN. 
 
 (See Right of Way; Ditch and Canal Companies; Corporations.) 
 
 Common law rule of, 94. 
 
 Water rights may be taken under, in California, 365. 
 
 Rights under code in California, 356. 
 
 Construction of California code, relative to 357. 
 
 Common law theory of, 94. 
 
 ENGLAND. 
 
 Accession of Territory from, by treaty in 1849, 29. 
 
 ENTRY. 
 
 Of land defined, 144. 
 EQUITABLE DIVISION. 
 (See Appropriation of Waters; Beneficial Use.j 
 Theory of controverted, 240-242. 
 Basey vs. Gallagher, construed relative to, 241. 
 Supreme Court of Idaho upon the subject, 242. 
 
 EQUITABLE RELIEF. 
 (See Action; Remedies.) 
 Discussion of, 329-337. 
 
 Injunction where no actual damages are shown, 329. 
 Riparian proprietors entitled to injunction when, 330, 331.
 
 INDEX. 761 
 
 EQUITABLE KULIUF. —Cofiiinued. 
 
 Appropriator's right to injunction when, 332. 
 For restraining nuisance, 333. 
 Trespass, equity will restrain when, 334. 
 Mandamus, 336. 
 
 EQUITY. 
 
 Has no power to determine extent of rights, 337. 
 
 Of settler relates back to very inception of title, 215-220. 
 
 Also so held by the Land Department, 214-216. 
 
 Has jurisdiction where no actual damages are shown, 329. 
 
 May enjoin unlawful diversion, 330-332. 
 
 Will restrain a nuisance, 333. 
 
 Will restrain a trespass when, 334. 
 
 Mandamus, action will lie for when, 335. 
 
 Action to quiet title in, 336. 
 
 Has power to determine extent of right, 337. 
 
 ESTOPPEL. 
 
 By Deed, 263. 
 
 General doctrine of, 263. 
 
 In Pais. 
 
 Doctrine of respecting water rights, 260-262. 
 Definition of, 260. 
 
 There must be actual misrepresentation, 260-262. 
 Riparian proprietors estopped when, 287. 
 
 EXTENT OF RIGHT. 
 
 (See Appropriation of Water; Beneficial Use.) 
 
 To amount of water that may be diverted, 225-232. 
 Limited by amount actually applied to some beneficial use or pur- 
 pose, 230-232. 
 How determined, 230. 
 
 Often limited by special purpose to which water is applied, 231-233. 
 Discussion on, 223-270 
 Acquired by appropriators, 223-254. 
 Acquired by riparian owners, 272-292. 
 Acquired by prescription, 293-297. 
 Acquired in subterranean water-courses in west, 29S, 299. 
 
 EXTRAORDINARY USE. 
 
 (See Ordinary use; Common Law Theories; Rijiarian Rights.) 
 
 As defined by common law, 65. 
 
 Use of water for irrigation is, 67-74.
 
 762 IKDEX. 
 
 FARMING NEIGHBORHOOD. 
 
 Defined, 395. 
 
 FISHERY. 
 
 Public and private rights to, under common law, 83, 84. 
 Act to preserve in Wyoming, 481. 
 
 FLORIDA. 
 
 Ownership of soil under fresh water navigable rivers, 55. 
 
 FORFEITURE. 
 
 (See Abandonment ) 
 
 FRANCHISE. 
 
 Right to charge for water is a, in California, 354. 
 Right to charge for water in Idaho is, 516. 
 Use of water for sale is, in Oregon, 49!^. 
 
 FRANCE. 
 
 Irrigation in, 2, 12. 
 
 Modern irrigation in, 20. 
 
 Acquisition of territory from, by the United States, 128. 
 
 G. 
 
 GANGES CANAL. 
 Description of, 18. 
 
 GEOLOGICAL SURVP:Y. 
 Provisions for, 25-31. 
 
 GEORGIA. 
 Ownership of soil under fresh witer navigable rivers, 54. 
 
 GRANTS. 
 
 (See Congressional Acts; Appropriation of Water; Riparian Rights.) 
 Rights under, acquired from Mexico, 2S9-292. 
 Subject to conditions annexed, 147, 148. 
 Subject to pre-existing water rights, 1S5-189. 
 
 GREECE. 
 
 Irrigation in, 11. 
 
 HEAD-GATES. 
 (Statutory Enactments of the Various States and Territories; Law of 
 State Control.)
 
 INDEX, 
 
 763 
 
 HEREDITAMENT. 
 
 Right of appropriator to have water flow to the head of his ditch is 
 
 an incorporeal, 247. 
 A water-right is a corporeal, 223. 
 
 Right of a riparian proprietor to the flow of the stream is a corpo- 
 real, 56. 
 
 HISTORY. 
 
 Of change from common law to arid region doctrine, 100-108. 
 Of water-rights first held under mining rules and customs, 102. 
 Of first legislation upon subject by California. 103. 
 Of knowledge of irrigation in Egypt, 10. 
 Of irrigation in various countries, 10-17. 
 
 HOMESTEAD ENTRY. 
 (See Public Lands.) 
 Rights attach under when, 144. 
 Rights under, how acquired, 143. 
 
 1. 
 
 IDAHO. 
 
 Particular features of, 509. 
 
 Irrigation in, 510. 
 
 Prior appropriators protected in, 512. 
 
 General statutory enactments in, 511-516. 
 
 Right-of-way for ditches in, 511-513. 
 
 State control of distribution for irrigation, 514. 
 
 Criticism of laws of, 515. 
 
 Constitutional provisions of, 516. 
 
 Right to collect compensation for w-ater supplied a franchise, 516. 
 
 Riparian rights in, 517. 
 
 Election of water masters in, 514. 
 
 ILLINOIS. 
 
 Ownership of land under fresh water navigable rivers, 54. 
 
 INCAS. 
 Ancient irrigation of, 13. 
 
 INCORPORATED DITCH AND CANAL COMPANIES. 
 (See Ditch and Canal Companies.) 
 In general, 307, 308. 
 
 Powers, duties and liabilities of, 307-317. 
 Liability for injuries to stockholders rights, 319. 
 
 INDIA. 
 Irrigation in, ro-12.
 
 764 INDEX. 
 
 INDIA.— Co/ifinued. 
 
 Canals and aqueducts in, 4-12. 
 Under British rule, 18. 
 
 INDIANA. 
 
 Ownership of land under fresh water navigable rivers in, 54. 
 
 INDIANvS. 
 (See Public Lands; Treaties.) 
 Title of occupancy by, 133. 
 Treaties with, 133. 
 Entitled to appropriate waters, 135. 
 May maintain an action for diversion, 135. 
 
 INJUNCTIONS. 
 
 (See Legal Remedies; Equitable Relief; Actions.) 
 
 Will lie when no actual damages are shown, 329. 
 
 Riparian proprietors right to, for unlawful diversion, 330, 331. 
 
 Appropria tor's right to injunction, 332. 
 
 To restrain nuisance, 333. 
 
 INJURIES. 
 
 (vSee Actions; Damages; Corporations; Statutory Enactments of Va- 
 rious States and Territories; Legal Remedies.) 
 
 To ditches, owner of land liable, 245. 
 
 To lands, owner of ditches liable for, 245. 
 
 Not always necessary to show actual damages in order for an action 
 to lie for, 321. 
 
 Liability of ditch companies for, 318. 
 
 INTENT. 
 
 (See Appropriation of Water; Beneficial Use.) 
 Must be actual to apply to some beneficial use or purpose, 156. 
 Notice of, to appropriate, 157, 158. 
 
 Must be consummated by an application of all water appropriated to 
 some useful purpose, 225-230. 
 
 IOWA. 
 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 IRRIGATION. 
 
 (See Appropriation of Water; Beneficial Use.) 
 
 Art of, 4. 
 
 Definition of, i. 
 
 Early American common law doctrine governing, 72. 
 
 Empire of, 21. 
 
 English doctrine of, 70, 71.
 
 INDEX. 765 
 
 IRRIGATION.— Continued. 
 
 Extent to which water may be diverted for, by riparian proprietor in 
 
 the arid region, 275. 
 Future of the United States, 36. 
 In California, 338-396. 
 Historj- of, 10-17. 
 How beneficial, 6, 7. 
 
 Its practice under common law rule impossible, 73-76. 
 Later American common law doctrine, 73-75. 
 Natural or artificial want, 9. 
 Nature and importance of, 2. 
 Past and present, 1-36. 
 Progress of, 4-25. 
 
 Present condition of, in different States and Territories, 35. 
 Rapid growth of, between 1886 and 1893, 25. 
 Right to use the water for, under common law, 68-76. 
 Same — Chancellor Kent's opinion, 74. 
 
 Riparian proprietors' right to divert for, in the West. 273-279. 
 To what best adapted, 6, 7. 
 Theor}' of, 5. 
 Value to civilization, 3. 
 What is, 1-9. 
 
 IRRIGATOR. 
 
 (See Irrigation.) 
 
 Must consider legal rights, <S. 
 
 IRRIGATION COMPANIES. 
 
 (See Ditch and Canal Companies; Corporations.) 
 
 Unincorporated, 301-306. 
 
 Private incorporated companies, 307, 308. 
 
 Powers of, 309-313. 
 
 Duties of, 314-317. 
 
 Liability of, 318, 319. 
 
 IRRIGATION DISTRICTS. 
 In California, 358-396. 
 In Nevada, 410, 411. 
 In Washington, 422, 423. 
 In Kansas, 439, 440. 
 In Utah, 453-455- 
 In North Dakota, 465, 466. 
 In South Dakota, 472-475. 
 
 IRRIGATION SURVEY. 
 Congressional .\ct for, 120.
 
 766 INDEX. 
 
 ITALY. 
 
 Irrigation in, 2-12. 
 Modern irrigation in, 20. 
 
 J 
 
 JOINDER OF PARTIES. 
 
 (See Actions; Legal Remedies.) 
 Eor damages, 327. 
 JOINT TENANTS. 
 
 (See Tenants in Common.) 
 JURISDICTION. 
 (See Public Lands,) 
 
 Of State and United States over public lands and waters, 145, 145. 
 Of appropriation of water upon the public domain, 145. 
 After title has passed from the Government, 146. 
 Lex loci sitae, 146. 
 Of Equity, 329-337. 
 
 Where no actual damages are shown, 329. 
 
 For unlawful diversion, 332. 
 
 For nuisance, 333. 
 
 For trespass, 334, 
 
 Mandamus, 335. 
 
 To quiet title, 336. 
 
 To determine extent of right, 337. 
 
 K. 
 
 KANSAS. 
 Ownership of land under fresh water navigable rivers, 55. 
 Particular features of, 425. 
 Irrigation in, 426. 
 
 General statutory enactments of, 427-438. 
 Appropriation and use of water in, 429-441. 
 Right of way for ditches, 434. 
 Irrigation districts of, 439-441. 
 Artesian wells in, 436. 437. 
 Water rates in, 438. 
 Riparian rights in, 442. 
 Reservoir sites in, 434. 
 
 Abandonment of water-rights how worked, 432. 
 Construction of works, 435. 
 Interference of works, 441. 
 Purchase of water-rights how efiEected, 440. 
 Issuance of bonds, 440. 
 
 KENTUCKY. 
 Ownership of land under fresh water navigable rivers, 54.
 
 INDEX. 767 
 
 LAKES. 
 
 (See Riparian Rights; Appropriation of Waters.) 
 
 Great inland, 38. 
 
 Definition of, 38. 
 
 Distinguished from rivers, 38-46. 
 
 Great navigable, regarded as public, 38. 
 
 In England, ail considered private, 46-86. 
 
 And Ponds, 46,47. 
 
 Small, when navigable, 46. 
 
 Riparian rights attach to, when, 58-88. 
 Properly in, in the United States, 87, 88. 
 
 LEASING WATER. 
 For mechanical purposes, by irrigation districts of California, 387. 
 
 LEGISLATION. 
 
 (See Congressional Acts.) 
 By Congress, 113, 116-121. 
 First, by California upon subject, 103. 
 
 Of various States and Territories (see statutory enactments under 
 States and Territories, Part Two.) 
 
 LEGISLATIVE GRANTS. 
 (See Public Lands; Grants.) 
 
 Power to grant water-rights to dit:;h co-npinies, 312, 313. 
 Cannot give rights injuring those vested, 312, 313. 
 By Congress, 134-144. 
 
 LICENSE. 
 Common law rules of, 93. 
 Revocable when, 93. 
 Of Government presumed, 109, no. 
 Of Government prior to Act of 1S66, ratified by that Act, 202-206. 
 
 LIEN FOR WATER RENT. 
 In South Dakota, 473. 
 In Oregon, 504. 
 In Texas, 526. 
 In Utah, 554. 
 
 LIMITATIONS, STATUTE OF. 
 (See Prescription.) 
 Length of time of, for acquisition of water-rights, 293-297. 
 
 LOGGING. 
 Streams must be kept unobstructed for, 42.
 
 768 INDEX. 
 
 LOMBARDY. 
 
 Irrigation in, 12, 16. 
 
 LOUISIANA. 
 
 Purchase, 126-128. 
 
 M. 
 
 MAINE. 
 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 MANDAMUS. 
 
 (See Actions; Remedies.) 
 
 Action will lie for when, 335. 
 
 When ditch companies will be compelled to furnish water by, 317. 
 
 MANUFACTURES. 
 (See Beneficial Use.) 
 
 Have equal rights with others to appropriate water, 150. 
 Act to lease water to, in California, 387. 
 
 MARYLAND. 
 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 MASSACHUSETTS. 
 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 MEASUREMENT OF WATER. 
 
 In Utah, 448. 
 In Wyoming, 491. 
 In Montana, 551. 
 In Colorado, 563. 
 
 METHOD OF APPROPRIATION. 
 (See Appropriation of Water.) 
 How effected, 149-171. 
 
 MEXICAN LAW. 
 (See Civil Law.) 
 
 Nature of water rights acquired under, 289-292. 
 Legal effects of laws of the U. S. upon water rights acquired under, 
 
 292. 
 Diversion perhiitted under, for useful purposes, 290, 291. 
 
 MEXICO. 
 
 Ancient irrigation in, 14, 15. 
 Cession of Territory by, in 1848, 129. 
 
 MICHIGAN. 
 Ownership of soil und ir fresh water navigable rivers, 54.
 
 INDEX. 769 
 
 MILITARY LAND WARRANT ENTRIES. 
 
 (See Public Lands.) 
 
 Rights under, attacli when, 143, 144. 
 MINING RULES AND CUSTOMS. 
 
 (See Arid Region Doctrine.) 
 
 Early importance of, in the Pacific States, 99-105. 
 
 Origin of, 102-105. 
 
 Sanctioned by the State legislature, 103. 
 
 Recognized by Act of Congress, of July 26, i835, 113, 114. 
 
 Earl" adoption of, in California, 102. 
 
 Water rights at first rested entirely upon, 102. 
 
 MINING. 
 (See Beneficial Use.) 
 Early history of, in California, 97-100. 
 Rules and customs of, 102-105. 
 (See Arid Region Doctrine, § 96-122.) 
 
 MINNESOTA. 
 Ownership of soil under fresh water navigable rivers, 55. 
 
 MISSISSIPPI. 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 MISSOURI. 
 
 Ownership of soil under fresh water navigable rivers, 55. 
 
 MONTANA. 
 
 Particular features of State, 548. 
 
 Irrigation in, 548. 
 
 General statutory enactments in 549-5i3- 
 
 Controversies regarding water to be determined by date of appro- 
 priation, 550. 
 
 Rights of persons and corporations to water, 550. 
 
 Right of appropriation, 551. 
 
 Requisites for an appropriation in, 551. 
 
 Sale of water, 552. 
 
 Rights of way, 553. 
 
 Condemnation proceedings for, in, 553. 
 
 Measurement of water, 551. 
 
 Riparian rights in, 554. 
 MORMONS. 
 
 First irrigation in arid west by, 23, 24. 
 MUNICIPAL CORPORATIONS. 
 
 Irrigation districts are not, 3S9. 
 
 May be included in irrigation dis'.r'cts, 39^, 395.
 
 770 INDEX. 
 
 N, 
 
 NATURAL WANTS. 
 
 (See Common Law Theories.) 
 
 Use of water for irrigation may be, 9. 
 NAVIGABLE WATERS. 
 
 (See Common Law Theories; Riparian Rights.) 
 
 What are, 40. 
 
 Those actually navigable are navigable in law. 40. 
 
 Right to the use of, 41. 
 
 Obstruction of, 41. 
 
 Those subject to ebb and flow of tide belong to Crown or State, 51. 
 
 State succeeded to title of Crown, 51. 
 
 Rule in England as to fresh water, as to ownership of soil under, 53. 
 
 Rule in United States as to ownership of fresh waters, 54. 
 
 NAVIGATION. 
 
 (See Common Law Theories. ) 
 Right of, how acquired 42. 
 Paramount to all other rights, 41. 
 
 NEBRASKA. 
 
 Particular features of, 51b. 
 
 Water may be acquired by appropriation in, 519. 
 
 Irrigation in, 51S. 
 
 Statutory enactments in, 519, 520. 
 
 Water rights in general in, 519. 
 
 Right of way for ditches in, 520. 
 
 Condemnation proceedings, 520. 
 
 Riparian rights in, 521. 
 
 Appropriation must be for a beneficial use, 519. 
 
 NEGLIGENCE. 
 
 (See Actions; Injuries; Remedies; Construction of Ditches; Ditch 
 
 and Canal Companies; Act of God.) 
 Appropriator liable for, in construction and repair of ditches, 243.244. 
 Owner of land liable for, in injuring ditches of others, 245. 
 Degree of, necessary to create liability for damages, 325. 
 
 NEVADA. 
 
 Ownership of soil under fresh water navigable rivers in, 55. 
 
 Particular features of, 397. 
 
 Irrigation in, 39S. 
 
 Right of way in, 400. 
 
 Statutory enactments in, 399-409. 
 
 Condemnation proceedings in, 400. 
 
 Waters of State declared to be public property in, 407. 
 
 Jurisdiction of District Court, 406.
 
 INDEX, . 771 
 
 NEVADA.— Continued. 
 
 Proceedings to determine the ]>riority of right in, 408. 
 
 Storage reservoirs in, 409. 
 
 Board of reclamation and internal improvement, 402. 
 
 Irrigation district law in, 410. 
 
 Condemnation of water rights not permitted in, 411. 
 
 Rent of water, 404. 
 
 Prevention of waste in, 409. 
 
 Reclamation districts in, 401. 
 
 Riparian rights in, 412. 
 
 Surveyor General and his duties, 401. 
 
 Taxes, how assessed and collected, 404. 
 
 Bonds issued, how, 404 
 
 Use of water regulated, how, 405, 
 
 NEW ENGLAND STATES. 
 
 Non-tidal rivers in are private property, 54. 
 NEW JERSEY. 
 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 NEW MEXICO. 
 
 Ancient irrigation in, 14. 15. 
 
 Particular features of, 537. ' 
 
 Irrigation in, 538. 
 
 Statutory enactments of, 539-547- 
 
 Jurisdiction of justices of the peace, 539. 
 
 Public acequias, 539. 
 
 Irrigation preferred in, 539. 
 
 Private acequias, 540. 
 
 Condemnation of land for acequias, 540. 
 
 Labor upon acequias, 542. 
 
 Directors of acequias in, 541. 
 
 Organization and powers of irrigation corporations, 543-545- 
 
 Ditch property exempt from taxation, 547. 
 
 Riparian rights in, 547. 
 
 Overseers of acequias, 542. 
 
 Labor on acequias, 542. ♦ 
 
 Management of acequias, 542. 
 
 NEW YORK. 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 NILE. 
 
 (See Egypt.) 
 
 History of art of irrigation on, 10, 1 1. 
 
 NON-NAVIGABLE RIVERS AND WATlvR-COURSEvS. 
 (See Rivers; Waters; Water-Courses.)
 
 772 INDEX. 
 
 NON-NAVIGABLE RIVERS AND WATER-COVRSUS—Cofiitnued. 
 Of what they consist, 43, 44. 
 They need not flow continuovisly, 44. 
 
 NON-RIPARIAN LANDS. 
 (See Riparian Riglits; Common Law Theories.) 
 Ripirian proprietor has no right to irrigate, 284. 
 Appropriator of waters may irrigate, 256. 
 
 NON-USER. 
 (See Appropriation of Water; Riparian Rights.) 
 Rights of appropriator lost bj', 150, 164. 
 Rip iriau rights not lost by, 58, 65. 
 
 NORTH CAROLINA. 
 
 Ownership of soil unJer fresh water navigable rivers in, 54. 
 
 NORTH DAKOTA. 
 
 Particular features of, 458. 
 
 Irrigation in, 459. 
 
 Right to use witer in, defined, 460. 
 
 Generil stitulory enactments of Territory of, 430-462. 
 
 Right of way for ditclies, 460. 
 
 General statutory enactments of, State of, 463, 464. 
 
 Abandonment of right, 461, 462. 
 
 Irrigation district law of, 465, 465. 
 
 Powers of board of, 466. 
 
 Riparian rights in, 467. 
 
 Organization of ditch companies, 462. 
 
 Water to be furnished to what class of persons, 462. 
 
 Regulation of artesian wells in, 464. 
 
 Construction of artesian wells in, 464. 
 
 Assessments in, 466. 
 
 Condemnation for right of way, 466. 
 
 Location of water-right how made in, 461. 
 
 Tax how assessed and collected, 463. 
 
 NOTICE. 
 (See Appropriation of Water; Relation.) 
 
 Of intent to approi)riate waters for beneficial use necessary, 157, 158. 
 Form of notice immaterial, 157, 158. 
 Is evidence of possession, 158. 
 Rule as to, in California, 346. 
 
 Of itself, not sufficient to hold appropriation, 158. 
 Appropriation relates back to when, 168, 169, 184. 
 Statutory enactments concerning (see subject under various States 
 and Territories).
 
 isDEx. 773 
 
 NUISANCE. 
 (See Actions; Remedies; Pollution; Unlawful Diversion.) 
 Equity will restrain when, 333. 
 Diversion of a water-course, from one entitled to the use thereof is a, 
 
 332. 
 Pollution of water is a, when, 350-352. 
 
 o. 
 
 OBSTRUCTIONS. 
 
 (See Appropriation of Water; Appropriators.) 
 
 Right to remove from stream and ditch, 243. 
 
 Right to remove, devolves upon owner of ditch and not upon owner 
 
 of land, 243. 
 Must be removed without damage, 243. 
 
 ORDINARY USE. 
 
 (See Common Law Theories; Riparian Rights.) * 
 
 Distinguished from extraordinary use, 66-77. 
 Defined, 65. 
 
 OREGON. 
 
 Ownership of soil under fresh water navigable rivers in, 55. 
 
 Particular features of, 495. 
 
 Irrigation in, 496. 
 
 Use of water for sale in, is a franchise, 498. 
 
 General statutory enactments, 497-507. 
 
 Water must be supplied to whom, 498. 
 
 Organization and powers of corporations in, 497-504. 
 
 Notice of appropriation, 499. 
 
 Riparian rights in, 508. 
 
 No tract of land to be burdened with more than one ditch, 502. 
 
 Lien for water rents in, 504. 
 
 Condemnation of land for right of way, 500. 
 
 Condemnation of riparian rights in, 500. 
 
 Works must be completed when, 501. 
 
 Constitutionality of Act of 1891, 507. 
 
 Natural stream may be used for ditch, 502. 
 
 Damages, 503. 
 
 Distributing ditches, 503. 
 
 OVERFLOW. 
 
 (See Injuries; Remedies; Construction of Ditclies.) 
 
 OVERSEER. 
 
 Of acequias in Arizona, 535. 
 
 Of acequias in New Mexico, 541.
 
 774 INDEX. 
 
 p. 
 
 PAROL. 
 
 (See Abandonment; Sale of Water Rights.) 
 
 Sale of ditches and water rights bj', and abandonment when, 253- 
 255- 
 
 PARTIES. 
 (See Remedies; Actions.) 
 To action for damages, 327. 
 
 PATENT. 
 
 (See Patentee of Government; PuVdic Land.c.) 
 
 PATENTEE OF GOVERNMENT. 
 (Public Lands.) 
 
 Rights of, prior to Act of 1866, in, 11^, 192. 
 ^In absence of statute, succeeded to what interest in waters, 192-206, 
 Held by some authorities to take land and waters regardless of 
 prior appropriation, before Act of 1866, 193-197. 
 Authorities discussed, 195, 196, 199. 
 Comments on above rulings, 197. 
 
 Vansickle vs. Haines, a leading case on above subject, 195. 
 Criticism of Vansickle vs. Haines, 198. 
 Act of July 26, 1866, passed simply to protect vested and accrued 
 water rights, 198. 
 Authorities discussed, 199-200. 
 Doctrine of relation regarding rights of, 208-220. 
 
 Authorities holding that right relates back to date of patent, 
 210, 212-213. 
 Authorities holding, rights relate back to very inception of title of, 
 2x5-220. 
 
 PENALTIES. 
 (See Statutory Enactments Upon Subject of Various States and Ter- 
 ritories.) 
 For Unlawful Interference with Waters or Works: 
 In Washington, 419. 
 In Kansas, 441. 
 In Oregon, 504. 
 
 PENNSYLVANIA. 
 Ownership of land under fresh water navigable streams in, 54. 
 
 PERCOLATING WATERS. 
 
 (See Subterranean Waters; Water Courses; Appropriation of Water.) 
 Distinguished from subterranean waters, 48, 49.
 
 INDEX. 775 
 
 PERCOLATING WATERS.— Co;iti?ii/ed. 
 Definition of, 49. 
 Nature and extent of water acquired in, in arid region, 298, 299. 
 
 PERIODICAL APPROPRIATIONS. 
 (See Appropriation of Water; Nature and Extent of Right.) 
 Are those measured by time, 177, 178. 
 
 No difference in principle from those measvired by volume, 177, 178. 
 Authorities discussed, 178. 
 
 PERSIA. 
 
 Irrigation in, 12. 
 PETITION. 
 (See Irrigation District Laws of various States and Territories.) 
 What to contain for Organization of Irrigation Districts: 
 In California, 360. 
 In Nevada, 410. 
 In Washington, 422. 
 In Kansas, 439. 
 In Utah, 453. 
 In North Dakota, 465. 
 In South Dakota, 471. 
 
 PHYSICAL ACTS. 
 
 (See Appropriation of Water.) 
 
 Necessary to constitute an appropriation, 159. 
 
 Notice must be given of intention, 159. 
 
 Surveys must be made, 159. 
 
 Ditches and canals must be dug, 159. 
 
 Water must be actually diverted and applied to some beneficial use, 
 159- 
 PLACE OF USE. 
 
 (See Appropriation of Water; l^xtent of Right.) 
 
 May be changed, 154-233. 
 
 See Statutory Enactments upon subject of various vStates and Terri- 
 tories.) 
 
 PLANTS. 
 
 Transpiration of, 5. 
 
 IIow irrigation is beneficial to, 3-7. 
 
 To what, irrigation is best adapted, 7. 
 
 POINT OF DIVERSION. 
 
 (See Appropriation of Water; Extent of Right.) 
 
 The place where property rights of appi'opriators begin, 247 
 
 May be changed, when rights of others are not injured, 248.
 
 776 INDEX. 
 
 POLLUTION. 
 
 Of a water course under common law, 62. 
 
 There must be no, if the prior appropriators' rights are materially 
 
 injured thereby, 250-252. 
 By poisoning of waters, 252. 
 
 PONDS. 
 
 (See Lakes; Rivers; Riparian Rights.) 
 
 Characteristics of, 47. 
 
 Distinguished fr< m lakes only in size, 47. 
 
 Property in, in England, 86. 
 
 In United States, 78-88. 
 
 PRE-EMPTION ENTRY. 
 (See Public Lands.) 
 Rights under, attach when, 142, 144. 
 
 PRESCRIPTION. 
 
 (See Adverse Possession; Abandonment.) 
 
 Common law rules of, 92. 
 
 A right acquired by, works an abandonment, 256. 
 
 Nature and extent of water rights acquired in arid region by, 293 
 
 As against appropriators of water, 294. 
 
 As against riparian owners, 295. 
 
 As against any other right, 297. 
 
 PRIOR APPROPRIATIONS. 
 
 (See Ayprcpriaticn of Water; Appropriators; Arid Region Doctrine. 
 
 Not recognized under common law, 80, 81. 
 
 Patentees take subject to when, 135, 191, 206. 
 
 Protected to the extent of use, 173, 174. 
 
 United States Supreme Court on the subject. 174. 
 
 As against the United States and its grantees; iii, 114, 185, 220. 
 
 Rights acquired as against settlers 191-220. 
 
 Ri ghte acquired as against Congressional grantees, 185-189. 
 
 Nature and extent of rights acquired under, 222-270. 
 
 PRIOR APPROPRIATORS. 
 (See Appropriators; Appropriation of Water; Arid Region Doctrine.) 
 Have the best, and sometimes the exclusive right to water, 173, 174. 
 United Stales Supreme Court on subject, 174. 
 Rights of, fixed by the extent of their appropriation, 175. 
 Have a right to insist that the water flow unpolluted if they are 
 
 materially injured thereby, 250-252. 
 May loose their rights by abandonment, 253-259.
 
 i^DEX. 777 
 
 PRIOR AVVROPRIATORS.— Conn ;iufd. 
 
 And riparian proprietors at the same time, 281-284. 
 
 Right of, to injunction, 332. 
 
 Right to damages for unlawful division, 338. 
 
 PROPERTY RIGHTS IN DITCHES AND CANALS. 
 (See Ditches and Canals; Appurtenance; Ditch and Canal Compa- 
 nies.) 
 A water ditch or canal is land, 224. 
 
 PRESUMPTION. 
 
 (See Appropriation; Arid Region Doctrine. 
 
 Early doctrine of arid region based upon, 109, 110. 
 
 PRIVATE GRANTS. 
 
 (See Public lands; Grants; Sale of Water Rights Appurtenances.) 
 Reservation in, must be clearly expressed, 90, gi. 
 
 PUBLIC CORPORATIONS. 
 
 (See Irrigation Districts.) 
 Irrigation districts are, 389. 
 
 PUBLIC DOMAIN. 
 
 (See Public Lands; Appropriation.) 
 Definition of, 124. 
 
 PUBLIC GRANT. 
 
 Crown cannot abridge or destroy private rights by, 89. 
 State may make to individuals, 89. 
 
 Of lands, in the absence of legi.'^lation, 89, 185, 191-206. 
 Of water-rights cannot be made to the injury of prior vested rights, 
 312, 313. 
 
 PUBLIC LANDS AND WATERS. 
 (See Public Domain; Appropriation; Disposal of Lands and Waters.) 
 Definition of, 124. 
 United States the owner of, 124. 
 Power of the United States to acquire, 125, 126. 
 How the United States acquires, 127 129. 
 
 Government takes, subject to vested property rights therein, 130-132. 
 Disposal of, 134-144. 
 
 Rights of Government to disjjose of, 134. 
 Donation of lands for internal improvement, 137, 138. 
 Cannot be made to prejudice of pre-existing riglits, 137, 138. 
 School lands, 139. 
 Cease to be public, when entered by settlers, 217, 218.
 
 778 INDEX. 
 
 PUBLIC SAIJE AND PRIVATE ENTRIES. 
 
 (See Disposal of Lands; Public Lands and Waters.) 
 Rights under, attach when, 143. 
 
 PURPOSE OF APPROPRIATION. 
 
 (See Appropriation of Water; Notice; Nature and Extent of Rights.) 
 Must be set forth in notice, 157, 158. 
 Must be for beneficial use, 150-153. 
 Often limits extent of right, 231, 232. 
 
 QUIET TITLE. 
 
 (See Actions; Remedies.) 
 Action to. to water-rights, 336. 
 
 R 
 
 RAINFALL. 
 
 In State of Nevada, 397. 
 
 REASONABLE DILIGENCE. 
 
 (See Appropriation of Water; Appropriators.) 
 
 Must be used to complete works of appropriation. 160, i<Si. 
 
 A question of fact for the jury, 160, 161. 
 
 Must be used in application of water, 165. 
 
 If used, rights in water relate back to first step, 184. 
 
 If not used, rights do not relate back to first step, i<S4. 
 
 REASONABLE USE. 
 
 (See Riparian Rights; Common Law Theories.) 
 
 Must be made of water by riparian proprietors, under common law, 
 
 76, 77- 
 By riparian proprietors in arid region, 276-280. 
 
 RECLAMATION. 
 
 In Nevada, 401-404. 
 
 Act of Congress of March 3, 1891, for, T19. 
 
 RE-DIVERSION. 
 
 May be made when water has been returned to the stream. 163. 
 
 RELATION, DOCTRINE OF. 
 
 (See Appropriation; Patentee; Congressional Grants. I 
 Appropriation relates back to first step when, 168, 169. 184. 
 As between appropriators, 184. 
 Appropriation does not relate back when, 184
 
 INDKX. 779 
 
 RELATION, DOCTRINE 0¥.— Co>ifiniit-ii. 
 
 As applied to Congressional grants, 189. 
 
 As between conflicting Congressional grants, 190. 
 
 As applied to rights of patentees of Government, 208-220. 
 
 Rights of patentees relate back to the very inception of title, 215-220. 
 
 Ruling of Land Department upon subject, 215, 216. 
 
 Ruling of the Supreme Court of the United vStates, 217. 
 Fixed by statute in California, 348. 
 
 RELICTION. 
 
 (See Accretion; Riparian Rights.) 
 
 Land relicted belongs to riparian owner, 82. 
 
 REMEDIES. 
 (See Damages; Injuries; Actions.) 
 General discussion regarding, 320-337. 
 
 Not always necessar)' to show actual damages to be entitled to rem- 
 edy, 321. 
 In general, 320-323. 
 
 Legal and equitable relief in same action. 320-323. 
 Remedies at law, 324-328. 
 Equitable, 329-337- 
 
 For damages caused by ditches, 324, 325. 
 
 For damages to prior appropriators, by unlawful diversion, 326. 
 Parties in an action for damages, 327. 
 Of riparian owners for unlawful diversion, 328. 
 Injunction, when no actual damages are shown, 329. 
 Riparian proprietors, right to injunction for unlawful diversion, 
 
 330. 331- 
 Appropriators' right to injunction for unlawful diversion, 332. 
 For nuisance, equity will restrain when, 333. 
 For trespass, equity will restrain when, 334. 
 Mandamus, action will lie for when, 335. 
 Action to quiet title, 336. 
 Equity has power to determine extent of rights, 337. 
 
 REPAIR OF DITCHF;S. 
 
 (See Construction of Ditches; Ditch and Canal Companies.) 
 
 Owners must keep ditches in repair, 244. 
 
 Liable for negligence for not keeping in repair, 244. 
 
 RESERVATIONS. 
 
 (See Sale of Water Rights; Appurtenance.) 
 
 Of water rights must be clearlj' expressed in deeds, 90, 91. 
 
 Of lands by Government a disposal of, 136. 
 
 Water rights, unless reserved, are appurtenant to tlic l.iiid, 267-3hq.
 
 780 INDEX. 
 
 RESERVOIRS. 
 
 (See subject in various States and Territories ) 
 Conservation of waters by, 31, 32. 
 Act to provide for in Nevada, 410. 
 
 RHODE ISLAND. 
 
 Ownership of soil under fresh water navigable rivers. 54. 
 
 RIGHT OF WAY. 
 
 (See Condemnation; Eminent Domain.) 
 Condemnation proceedings, and how obtained in: 
 
 California, 356, 357, 365, 366. 
 
 Nevada, 400. 
 
 Washington, 420. 
 
 Kansas, 423. 
 
 Utah, 449. 
 
 North Dakota, 466. 
 
 Wyoming, 481. 
 
 Oregon, 500, 505. 
 
 Idaho, 513. 
 
 Nebraska, 519. 
 
 New Mexico, 545. 
 
 Montana, 553. 
 
 Colorado, 567. 
 
 Arizona, 533, 534. 
 
 RIPARIAN PROPRIETORS. 
 
 (See Appropriation; Riparian Rights; Coininon Law Doctrine; Reme- 
 dies.) 
 On great lakes, own only to the shore, 38. 
 Nature of ownership in a watci-course, 56. 
 Riparian lights of, 57-75. 
 
 Right to tlie flow of the stream as it is wont by nature, 59, 65. 
 Have equal rights upon the stream, 59. 
 Right of to divert water, under common law, 60. 
 Have no tight to obstruct flow of stream, 61. 
 Have no right to accelerate current, 61. 
 May insist that stream remain unpolluted, 62. 
 Cannot divide stream without consent of all, 63. 
 Right of access to and from the State is a property right. 64. 
 Right to the use of water of stream, 65-76. 
 
 Ordinary use, 65. 
 
 Extraordinary use, conniion to all, 67. 
 
 F^or irrigation under common law, 68-76. 
 Reasonable use of water, 76. 
 
 Prior appropriation of water not recognized under common law, 80- 
 81.
 
 INDEX. 781 
 
 RIPARIAN TROVRmrORS.— Confuted. 
 
 Miscellaneous rights of, 82. 
 
 Rights in water in absence of statute of Government, 192-206. 
 
 Nature and extent of rights acquired to water by, in arid region, 
 
 272-292. 
 Appropriation by, in arid region, 272-279. 
 
 Extent to which water may be diverted b\s for irrigation, 275. 
 What is considered a reasonable use by, in arid region, 276-279. 
 And prior appropriators at same time, 281-284. 
 Have no right to irrigate non-riparian lands, 282. 
 Sale of water-rights by, 285. 
 
 Mere possession of lands give no riparian rights, 286. 
 Estopped when, 288. 
 
 Right to injunction for unlawful diversion, 330, 331. 
 Right to damages for unlawful diversion, 328. 
 
 RIPARIAN RIGHTS. 
 
 (See Riparian Owners; Appropriations; Common Law Doctrine; 
 
 Remedies.) 
 Do not depend upon ownership of soil under water, 57. 
 In general, 57-76. 
 
 Depend upon actual contact with the water of the Streams, 58. 
 May exist in a person who is not owner in fee, 58. 
 Are property rights, 58. 
 
 To flow of stream as it is wont by nature, 59-61. 
 To ordinary flow of stream, is a property right, 59. 
 Of diversion of stream under common laws, 60. 
 To flow of stream, undeteriorated in quality, 62. 
 To whole stream, 63. 
 Of access to and from the estate, 64. 
 Of riparian owners to ute of water, 65-76. 
 To ordinary and extraordinary u.ses of water, 66, 67. 
 Use of water for irrigation under common law, 68, 76. 
 To accretion and reliction, 82. 
 In fishery, 83, 84. 
 
 Under jurisdiction of State and Territory, where located, 145, 146. 
 Still exist in some portions of arid region, 191. 
 Controversies as to, and rights by appropriation, 191-221. 
 Not adopted where inapplicable to needs and conditions of locality, 
 
 2or. 
 Subsequent to law of 1S66, 207. 
 
 To use of water for irrigation in arid west, 273-279. 
 In artificial water-courses, 287. 
 Prescription against, 295, 296. 
 In California, 350. 
 Nevada, 412.
 
 782 INDEX. 
 
 RIPARIAN RIGHTS.— Continued. 
 Washington, 424. 
 Kansas, 442. 
 Utah, 457- 
 North Dakota, 467. 
 South Dakota. 477. 
 Arizona, 536. 
 Wyoming, 494. 
 Oregon, 508. 
 Nebraska, 521. 
 Texas, 529. 
 New Mexico, 547. 
 Colorado, 573. 
 Montana. 554. 
 
 RIVERS. 
 
 (See Water-Courses; Lakes and Ponds. 
 
 Large, 34. 
 
 Definition of, 39. 
 
 Distinction from lakes and ponds, 43. 
 
 And water-courses non-navigable, 43-49. 
 
 Property in fr»sh water, 52. 
 
 Ownership of soil under fresh water navigable rivers, 52-55. 
 
 s. 
 
 SALE OF WATER. 
 
 (See Ditch Companies; Franchise.) 
 
 After diversion, 266. 
 
 Compelled by ditch companies when, 317. 
 
 SALE OF WATER-RIGHTS. 
 
 (See Sale of Water; Abandonment; Appurtenance.) 
 
 Mere verbal sale works an abandonment, 253. 
 
 May be conveyed separate from the land when, 264, ^65. 
 
 By riparian proprietors, 285. 
 
 Statutory laws regulating in California, 566. 
 
 Statutory laws regulating in Colorado, 570. 
 
 In Montana, 552. 
 
 SAHARA DESERT. 
 Irrigation in, 19. 
 Artesian wells in, 19. 
 
 SCHOOL LANDS. 
 (See Public Lands.) 
 How granted by the Government, 139.
 
 INDEX. 783 
 
 SEA. 
 
 Definition of, 38. 
 
 SETTLERS. 
 
 (See Public Lands; Disposal of Lauds; Riparian Rights; Appropria- 
 tion of Water; Patentee of Government.) 
 General rights of, 191-222. 
 Nature and extent of rights of. 272-28S. 
 
 SIRHIND CANAL. 
 
 Description of. 18. 
 SOIL AND WATER. 
 
 (See Appropriation of Water; Pul)lic Land.) 
 
 Ownership of, distinguished, 135. 
 
 Title to soil unnecessary to an appropriation, 156. 
 
 SOUTH AMERICA. 
 
 Irrigation in, 13. 
 SOUTH CAROLINA. 
 
 Ownership of land under fresh water navigable rivers, 54. 
 SOUTH DAKOTA. 
 
 (See North Dakota.) 
 
 Particular features of, 46S. 
 
 Irrigation in State, 468. 
 
 Territorial laws of, 469. 
 
 Statutory enactments of State, 47c. 
 
 Corporations in, 470. 
 
 Right of way, how secured in, 470. 
 
 Artesian wells in, 470-476. 
 
 Surplus water, how disposed of, 470. 
 
 Organization of irrigation districts in, 471-476. 
 
 Township districts, how organized, 471. 
 
 I/ien for water rights m, 473. 
 
 Title to property, 473. 
 
 Riparian rights in, 477. 
 
 .State engineer, duties of, 471. 
 
 Bonds, how voted, 472. 
 
 Construction of works, 472. 
 
 Conveyance of water, 473. 
 
 Taxes, how assessed in, 474. 
 
 Reservoirs in, 474. 
 
 Distribution of water, 475. 
 
 Water must not be wasted, 476. 
 
 County districts, how organized, 47(1. 
 
 Location of wells, 476. 
 
 Duties of Contit\ CommissioiH is, 17b.
 
 784 INDEX. 
 
 SPAIN. 
 
 Irrigation in, 20. 
 
 Acquisition of territory from, 128. 
 
 SQUATTERS. 
 
 (See Public Lands; Riparian Rights.) 
 On lands gain no riparian rights, 286. 
 
 STATE CONTROL OF W.\TERS. 
 In Idaho. 516. 
 In Colorado, 556-564. 
 W3'oming, 582-593. 
 Arizona, 532-535. 
 Rules of, and irrigation district law compared, 492. 
 
 STATE ENGINEER. 
 
 (See Subject Under Various States and Territories.) 
 Appointment of and duties of in Wyoming, 485. 
 Appointment of and duties in Colorado, 563. 
 
 STATUTES. 
 (See States and Territories.) 
 
 Of the United States, upon the subject of waters, 113, 116, ri8-i2i. 
 Of California, 3^1-396. 
 Nevada, 399-412. 
 Washington, 415 424. 
 Kansas, 427-442. 
 Utah, 445-457- 
 S^uth Dakota, 46>-477- 
 North Dakota, 469-477. 
 Wyoming, 480-494. 
 Oregon, 497-5-)S. 
 Idaho, 511-517. 
 Nebraska, 519-521. 
 Arizona, 532-535. 
 Texas, 523-529. 
 New Mexico, 539-547. 
 Montana, 549 554. 
 Colorado, 556-572. 
 
 STATISTICS. 
 
 Of irrigation in Utah, 24. 
 
 Of area of land under irrigation in arid and sub-humid regions, 26. 
 
 Estimate of Djpartuieiit of Agriculture, 27. 
 
 Of artesian wells used in irrigation, 33.
 
 INDEX. 786 
 
 STORAGE RESERVOIRS. 
 Adoptions of systems of, 31, 32. 
 lyCgal contemplation of, 32. 
 Additional agricultural development by, 32. 
 In Nevada, 409-411. 
 
 STREAMS. 
 
 (See Rivers; Water Courses.) 
 
 SUB-HUMID REGION. 
 
 Census bulletin as to irrigation in, 26. 
 Extent of, 458. 
 
 SUBSEQUENT APPROPRIATORS. 
 
 (See Appropriation; Prior Appropriations.) 
 
 Rights of in general, 175-182. 
 
 May take water subject to rights of prior appropriator, 175. 
 
 Are prior, to all who are subsequent to themselves, 175. 
 
 Maj'^ insist that prior appropriators confine themselves to extent of 
 
 their appropriation, 175, 176. 
 Authority of the Supreme Court of the United States upon subject 
 
 175- 
 
 May appropriate surplus or residue, 179, 180. 
 
 May appropriate all or part of the water in the stream, when not used 
 by first, 177. 
 
 May make successive appropriations, 181. 
 
 Have right to appropriate the water before works of first are com- 
 pleted, 182. 
 
 SUBTERRANEAN WATERS. 
 (See Percolating Waters.) 
 Underflow of surface streams, 44-48. 
 Distinguished from percolating waters. 48-78. 
 Two distinct classes of, 48. 
 
 Right of diversion of, under common law, 78, 79. 
 Nature and extent of rights acquired in, in arid region, 298, 299. 
 
 SUBTERRANEAN WATER COURSES. 
 (vSee Subterranean Waters.) 
 Defined, 48. 
 
 SUCCESSIVE APPROPRIATIONS. 
 
 (See Appropriation of Water; Appropriators.) 
 
 Only limited by size of stream, and amount of water taken out. 175. 
 
 Same water may be used by different parties, 181. 
 
 Regard must be had to jirior appropriators' rights, 181.
 
 786 INDEX. 
 
 SUPERINTENDENTS. 
 Of water divisions in Wyoming, and their duties, 486-489. 
 Of water divisions in Colorado, and their duties, 562. 
 
 SURPLUS OR RESIDUE OF WATER. 
 
 (See Appropriation of Water; Nature and Extent of Rights.) 
 May be appropriated by subsequent appropriators, 179, 180. 
 Authorities discussed, 180. 
 Surplus water must be returned to natural stream, 280. 
 
 SURVEY. 
 
 Under the United States, 54. 
 
 Riparian owners, on fresh water navigable rivers, take at least to 
 water's edge, 54, 55. 
 
 T. 
 
 TAHUA NATIONS. 
 
 (See New Mexico; Arizona.) 
 Irrigation by, 14-16. 
 
 TENANTS IN COMMON. 
 
 (See Ditch and Canal Companies.) 
 When ditch owners are, 301-306, 
 
 One tenant can protect the whole property against the acts or threat- 
 ened acts of wrong-doers, 301. 
 And copartners in water rights distinguishe<l. 302, 303. 
 
 TENANTS OF LAND. 
 
 Right to injunction for unlawful diversion by, 331. 
 
 TENNESSEE. 
 
 Ownership of soil unWer fresh water navigable rivers, 54. 
 
 TERRITORY. 
 
 (See Public Lands; Treaties.) 
 .\cquisition of, 127-133. 
 
 TEXAS. 
 
 Particular features of, 522. 
 
 Irrigation in, 522. 
 
 As between appropriators, first in time first in right, 523. 
 
 Statutory enactments of, 523-52S. 
 
 Water may be diverted in, 523. 
 
 Domestic use of water preferred, 523. 
 
 Corporations and powers of, in 524. 
 
 Relation, 523. 
 
 Lien upon crops for water right, 526.
 
 INDEX. 78Y 
 
 TEXAS. — Continued. 
 Construction of statutes of, 528. 
 Riparian rights in, 539. 
 Completion of works, 523. 
 Right of way how obtained, 524. 
 Sale of water, 525. 
 Penalties, 525. 
 Court decisions upholding right of irrigation, 527. 
 
 TIDE WATERS. 
 (See Common Law Theories; Classification of Waters.) 
 Definition of, 51. 
 Owned by the Crown or State, 51. 
 
 TITIvE. 
 
 (See Public Land; Disposal of Lands; Patentees of Government.) 
 Government takes title to land, subject to rights of property therein 
 
 130-132. 
 Indian, of occupancy, 133. 
 Title to grantees from government acquire good title, 134. 
 
 TOWN SITES. 
 
 (See Public Land; Disposal of Lands.) 
 Disposal of lands by Government for, 140. 
 
 TOLTECS. 
 
 Irrigation by, 14-16. 
 
 TREATIES. 
 
 (See Public Lands.) 
 
 With: 
 
 France in 1803, for purchase of Louisiana, 128. 
 Spain in 1821, for purchase of Floridas, 128. 
 Mexico, 1848, for purchase of Pacific highlands, 129. 
 England, 1846, for the Northwest, 129. 
 
 TRESPASS. 
 (See Actions; Remedies.) 
 Equity will restrain when, 334. 
 
 XJ. 
 
 UNINCORPORATED DITCH COMPANIES. 
 
 (See Ditch and Canal Companies; Injuries; Damages; Tenants in 
 Common.) 
 , Laws governing and controlling; 301-306.
 
 788 INDEX. 
 
 UNINCORPORATED DITCH COMPANIES.— CowZ/wm^^. 
 
 Relation of persons not defined by special agreement regarded as 
 
 tenants in common, 301. 
 Rights of majority in interest in, 304. 
 Powers of individual members limited in, 304. 
 Authority of individual members of, 305. 
 Liability and rights of individual members of, 306. 
 
 UNITED STATES. 
 
 (See Public Land; Acquisitions of Lands; Treaties; Disposal of Lands; 
 
 Patentee of Government.) 
 Power of to acquire lands, 125, 126. 
 How acquires lands, 127-129. 
 
 Takes lands subject to rights of property therein, 130-132, 
 Disposal of public lands and -waters by, 134-144. 
 Jurisdiction over public lands and waters, 145, 146. 
 Power of, to annex conditions- to grants, 147, 148. 
 Irrigation in, 21-36. 
 
 USE OF WATER. 
 
 (See Common Law Theories; Riparian Rights; Appropriation of 
 
 Water; Nature and Extent of Right.) 
 Ordinary, as defined by common law, 65, 66. 
 Extraordinarj', 65. 
 
 Usefulness of water always relative, 66. 
 Reasonable, discussed, 77. 
 
 Use of all water appropriated must be actual, 164. 
 Any beneficial, will maintain a valid appropriation, 150-151. 
 May be changed without losing rights, 233, 234. 
 Use must be reasonable, by riparian proprietor in arid region, 272- 
 
 279. 
 
 UTAH. 
 
 First irrigation in, 23, 24. 
 
 Statistics of irrigation in, 24. 
 
 Particular features of, 443. 
 
 Irrigation in, 444. 
 
 General statutes of, 445-452. 
 
 Selectment of counties, powers of, 445. 
 
 Priority of water rights in, 445-450. 
 
 Primary' water rights in, 446. 
 
 Secondary water rights in, 447. 
 
 Measurement of water, 448. 
 
 Irrigation district law in, 453-456. 
 
 Officers of district, how elected and duties of, 454. 
 
 Taxes, how assessed, 454. 
 
 Taxes voted, a lien on land, 454.
 
 INDEX. 
 
 UTAH.— Continued. 
 
 Lakes and ponds in, 455. 
 
 Right of way and condemnation for, 456. 
 
 Exemption from taxation when, 448. 
 
 Riparian rights in, 457. 
 
 Water rights in, when personal property, 448. 
 
 Water rights in, when real property, 448. 
 
 Waste not permitted, 448. 
 
 Preferences, 448. 
 
 V. 
 
 VERMONT. 
 Ownership of soil under fresh water navigable rivers, 54. 
 
 VIRGINIA. 
 
 Ownership of soil under fresh water navigable streams in, 54. 
 
 w. 
 
 WANTS. 
 
 (See Common Law Theories.) 
 
 Natural or artificial defined, 9, 65. 
 
 Water for irrigation under common law, an artificial, 69. 
 
 WASHINGTON. 
 
 . Particular features of, 413. 
 Irrigation in, 414. 
 
 Ditch and canal companies are public carriers in, 421. 
 General statutory enactments in, 415-421. 
 Water, how appropriated, 416. 
 Notice in, 416. 
 
 Commencement and completion of work, 416. 
 Relation of rights, 416. 
 Forfeiture of right, 416. 
 
 Right to appropriate water for irrigation, 417. 
 Proceedings for adjudication of water rights in, 421. 
 Erection of machinery to raise water, 419. 
 Condemnation proceedings in, 420. 
 Right of way, how acquired, 420. 
 Irrigation district law in, 422-424. 
 Constitutionality of district law, 423. 
 Unit of measurement of water in, 424. 
 Riparian rights in, 424. 
 
 Condemnation proceedings of riparian rights, 420. 
 Ditch companies deemed public carriers, 421. 
 Proceedings for adjudication of water rights in, 421. 
 
 789
 
 790 INDEX. 
 
 WASTE. 
 
 (See Nature and Extent of Rights; Appropriation of Water.) 
 
 Suppression of, 30. 
 
 There must be no waste of water, 165-167. 
 
 WATER. 
 
 (See Classification of Waters.) 
 
 Scarcity of supply of, 28. 
 
 Increase in supply of, 29. 
 
 Suppression of wasting, 30, 165-167. 
 
 Beneficial use of, 150, 151. 
 
 By change of use no rights are lost, 154. 
 
 Separated from original source of supply, is personal property, 223. 
 
 Amount thatmay be diverted underan appropriation, 225-229. 
 
 Equitable division of, controverted, 240-242. 
 
 Sale of after diversion, 266-270. 
 
 WATERS. 
 
 Classification of, 27-49. 
 Table of divisions of , 37. 
 Public or navigable, 38-42. 
 Source of title of, 124-133. 
 Government disposal of, 134-144. 
 Jurisdiction of public lands and, 145-148. 
 
 WATER-COURSES. 
 (See Waters.) 
 
 May sometimes be dry, 39. 
 Subterranean, 44-48, 
 Non-navigable, 43-49. 
 What constitutes, 43-45. 
 Defined, 45. 
 
 Nature of ownership in, 55. 
 No action will lie to recover, 56. 
 
 Riparian rights attach only to lands contiguous, 58. 
 Cannot be divided between riparian proprietors, 63. 
 Right to use for canal to convey water, 246. 
 
 WATER RATES. 
 
 (See Statutes of States and Territories on subject.) 
 How fixed in California, 253. 
 Kansas, 438. 
 Nevada, 404. 
 South Dakota, 473. 
 Colorado, 559.
 
 INDEX. 791 
 
 WATER-RIGHTS. 
 
 (See Appropriation; Riparian Rights; Irrigation; Water; Water- 
 Courses; Common La^v Doctrine.) 
 Aria region theory of, at first rested on mining rules and customs 
 
 ^°3- . ^ , 
 
 Acquired under foreign grants, protected by the United States, 130, 
 
 132. 
 Pre-existing, not effected by Congressional grants, 141. 
 Specific rules governing, under jurisdiction of various States, 145, 146. 
 Of what consists, 223. 
 
 May be transferred in same manner as real estate, 223. 
 Conveyance of, 264, 265. 
 When an appurtenant to land, 267-270. 
 Acquired under Mexican and Spanish laws, 2S9-292. 
 An actionable injury to, 321. 
 How adjudicated in Colorado, 561. 
 (See also Statutory enactments upon subject.) 
 
 WHO ARE ENTITLED TO APPROP RI-'^TE WATERS. 
 
 (See Appropriation of Water.) 
 
 Indians, 155. 
 
 Corporations, 155. 
 
 Aliens, 155. 
 
 Any person competent to hold real property, 155. 
 
 WHEN APPROPRIATION IS COMPLETE. 
 (See Appropriation of Water; Appropriators.) 
 Water must be actually applied to some beneficial use, 167. 
 
 WISCONSIN. 
 
 Ownership of soil under fresh water navigable rivers in, 54. 
 
 "WRIGHT LAW." 
 
 (See Kansas; Nevada; Washington.) 
 California district law, 558-596. 
 
 WYOMING. 
 
 Particular features of, 478. 
 
 Irrigation in State, 479. 
 
 Organizxition of ditch companies, 480. 
 
 Right to use of water for irrigation purposes, 481. 
 
 Penalties for destruction of irrigation works, 481. 
 
 Right of way for ditches in, 481. 
 
 State control of waters, 482-493. 
 
 Constitutional provisions of, 482, 483. 
 
 Water divisions of, 484.
 
 792 INDEX. 
 
 WYOMING.— Continued. 
 
 State Engineer and his duties, 485. 
 
 Division Superintendents and their duties, 486. 
 
 Board of Control and its duties, 487-489. 
 
 Contests respecting water-rights, 488. 
 
 Water Commissioners and their duties, 490. 
 
 Construction of head-gates, 491. 
 
 Statute of "State Control" and " District Law " compared, 492. 
 
 Riparian rights in State, 494. 
 
 Construction of measuring devices, 491. 
 
 Application for right to appropriate water, 489.
 
 
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