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.
o-"
l^W T.l
UC SOUTHERN REGIONAL LIBRARY FACILITY
AA 000 760 127 1
^
^
^